HIGH COURT OF TRIPURA
AGARTALA
CRL.A.No.07 of 2023
Samar Debnath,
Son of Late Abinash Chandra Debnath,
Of Jagatpur, P.O. Abhoynagar,
P.S. East Agartala, District: West Tripura,
PIN:799 005
---- Appellant(s)
Versus
The State of Tripura
----Respondent(s)
For Appellant(s) : Mr. S. Kar Bhowmik, Sr. Adv.
Mr. E.L. Darlong, Adv.
Mr. S. Bal, Adv.
For Respondent(s) : Mr. S. Ghosh, Addl. P.P.
Date of Hearing : 15.02.2024
Date of delivery of
Judgment and Order : 29.02.2024
Whether fit for
Reporting : YES
JUSTICE BISWAJIT PALIT
HON‟BLE MR.
Judgment & Order
By means of this appeal, the appellant has challenged
the judgment and order of conviction and sentence imposed
upon him on 23.05.2023 by Learned Special Judge
(POCSO), West Tripura, Agartala in connection with Case
No.Special (POCSO) 27 of 2019. By the said judgment
Learned Court below convicted the appellant to suffer
simple imprisonment for three years and to pay a fine of
Rs.20,000/- for the offence punishable under Section 8 of
the POCSO Act in default to suffer simple imprisonment for
further one month.
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02. Now before entering into the merit of the appeal,
let us see the case of the prosecution before the Learned
Trial court below. The prosecution was set into motion on
the basis of an FIR laid by one Ratan Paul being the father
of the victim to OC East Agartala Women PS alleging inter
alia that his daughter used to go to the residence of the
accused Samar Debnath for the purpose of tuition of
Computer at Abhoynagar. In the month of April, 2019 said
Samar Debnath outraged the modesty of his daughter by
touching her breast and due to fear, his daughter did not
say anything to him and hence, he laid the FIR. On receipt
of FIR, OC East Agartala, Women PS registered the case
under Section 354(A)(1)(i)(iv) of IPC and Section 8 of
POCSO Act and the case was endorsed to SI Munna
Majumder for investigation. The I.O. took up investigation of
the case and after completion of investigation being prima
facie satisfied laid chargesheet against the present appellant
accused under Section 354A (1)(i)(iv) of IPC and Section-8
of the POCSO Act and accordingly, cognizance of offence
was taken by the Learned Special Judge on 16.07.2019.
Before the Learned Special Judge formal charge under
Section 354A of IPC and Section 8 of POCSO Act was
framed against the appellant and thereafter to substantiate
the charge prosecution in total adduced seven numbers of
witnesses and the prosecution also relied upon some
documents which were marked as exhibits in the case. The
defence theory was of total denial. However, the appellant
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in course of his examination desired to adduce witness in
support of his defence. Accordingly, two witnesses were
adduced by the appellant who were examined as DWs-1 and
2. Thereafter on hearing of arguments Learned Special
Judge convicted the appellant for which this present appeal
is preferred. However, to decide the case Learned Special
Judge framed the following points for decision of the case:
(i) Whether during the alleged period of time the victim
was „child‟ within the meaning of the POCSO Act?
(ii) Whether on the alleged date, time and place the
accused person namely Samar Debnath sexually harassed
the victim (name withheld)?
(iii) Whether on the alleged date, time and place the
accused person namely Samar Debnath sexually
assaulted the victim (name withheld)?
03. Now for the sake of convenience let us revisit the
evidence on record of the prosecution. PW-1, Mitra Das,
J.M. First Class who was examined through VC deposed on
st
oath that on 19.06.2019 she was posted as JM 1 Class,
Court No.5, Agartala, West Tripura. On that day the victim
aged about 13 years was produced before her in connection
with East Agartala Women PS Case No.2019/WEA/030 and
accordingly she recorded her statement under Section
164(5) of Cr.P.C. The victim also put her signature on the
body of the statement. The witness identified the statement
and the signature as recorded by the Magistrate which is
marked as Exbt.1 and Exbt.1/1. During cross-examination
she stated that she was not acquainted with the victim prior
to 19.06.2019. She further stated that in the third sentence
from the end of the statement the victim stated that she
had nothing to say
and surname ‘Deb’ in the last sentence
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of the statement is smaller than the other letters of the
statements. Nothing more came out relevant.
04. PW-2, Ratan Paul is the informant and the father
of the victim. He deposed on oath that about three years
back he laid written ejahar to OC, East Agartala Women PS
against the appellant who is a private tutor of his daughter.
According to him, one month prior to lodging the ejahar one
day when his daughter went to attend her Computer class in
the dwelling house of her private tutor, i.e. the appellant
being located at Abhoynagar, Jagatpur, that time the said
private tutor outraged her modesty by touching her various
parts of the body including her breast and also showed her
pornographic videos in his mobile phone. The said fact was
disclosed by his daughter to his wife and subsequently, his
wife disclosed the said fact to him and after knowing this
fact they decided to take legal recourse of law. Accordingly,
he laid the ejahar. His ejahar was scribed by his daughter
and on being satisfied with the contents of the ejahar, he
put his signature and identified his signature marked
Exbt.2/1. He further stated that after lodging of the written
ejahar OC, Mina Debbarma filled up the printed FIR form
and identified his signature marked Exbt.3/1. He further
stated that during investigation the IO of the case seized
one original birth certificate of the victim daughter by
preparing a seizure list and took his signature as a seizure
witness. The witness identified his signature on the seizure
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list marked Exbt.4/1 and the birth certificate marked Exbt.5
and identified the appellant.
During cross-examination, he stated that he has
two children, one son and one daughter and his son used to
take tuition from the accused person for last two years,
prior to the lodging of the FIR and his daughter took tuition
from the accused for the last three years prior to lodging of
the FIR. He further stated either his wife or the witness
himself used to accompany them to the tuition classes and
they never gone to attend the said tuition classes alone by
themselves. He further stated that in his ejahar and also to
the police he did not say that the accused had shown
pornographic videos to his daughter through his mobile
phone. Further he stated that he did not say in his ejahar as
to the police that accused touched different parts of the
body of his daughter.
05. PW-3 is the victim of this case deposed that
about three years back on a day in the evening at about
8/8.30 p.m. she went to take extra class of computer tuition
at the dwelling house of his Teacher, namely, Samar
Debnath, i.e. the appellant. That time the appellant showed
her some obscene videos and thereafter, touched her
breasts. She was terrified by such acts and for about one
month her computer tuition was closed and due to fear she
did not disclose the fact to his family members. Thereafter,
one day she disclosed the aforesaid incident to her mother
and then her mother disclosed the fact to his father and
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after that his father lodged the case. She further stated that
the ejahar was scribed by her and identified the same
marked Exbt.2. She also stated that during investigation
she was produced before Magistrate wherein she gave her
statement and the witness identified her signature on the
body of the statement recorded by Magistrate marked
Exbt.1/2.
During cross-examination she stated that in her
computer class there were three other students including
her and the name of one student is Shibojyoti and after
some time, some other students also joined the said class
such as Bhairab Das, Arkaprava Barman, Somraj Dipta,
Anubhav Debnath and others. She further stated that she
joined the computer class when she was in Class-VI and
continued the same for about three years and her parents
used to accompany her to the said computer class. She was
confronted with the statement that she stated to police that
the accused showed her obscene videos when she went to
take her computer class. But the same was not found in her
statement recorded by I.O. under Section 161 of the Cr.P.C.
She was further confronted with the statement that she
stated to the Magistrate that she was terrified by the act of
accused and her computer class was closed for about one
month and on being drawn attention of the witness by the
defence of her statement, it was found that no such
statement was recorded in her statement by Magistrate
under Section 164(5) of Cr.P.C. She further stated that her
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elder brother was also a student of said accused person for
a period of 2/3 years.
06. PW-4, Chandana Paul is the mother of the victim.
She deposed that about three years back one day lodged a
written ejahar before East Agartala, Women PS against the
convict-appellant who is a private tutor of her daughter.
According to this witness, one month prior to the lodging of
the FIR, her daughter went to attend her extra computer
class at the dwelling house of her private tutor namely
Samar Debnath, being located at Abhoynagar, Jagatpur.
After that, there was one month vacation and after the end
of the vacation, her daughter refused to go to her tuition
class and when she enquired about it that time the victim
disclosed that the said private tutor outraged her modesty
by touching her breasts and also showed her lip-kissed
videos in his mobile phone. She informed the matter to her
husband, whereupon her husband lodged the instant case
and during investigation the police seized the original birth
certificate of his daughter by preparing a seizure list and
obtained her signature upon it as a seizure witness. The
witness identified her signature on the seizure list marked
Exbt.4/2 and identified the accused.
During cross-examination she stated that her
daughter was a student of Holycross School situated at
Durjoynagar, Agartala. She further stated that she did not
say to the I.O. that there was one month vacation in the
said computer class of his daughter. Further she stated that
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her husband used to accompany her daughter to her
computer class and on exceptional circumstances she
accompanied her. Nothing more came out.
07. PW-4, Sanjib Paul deposed that he knows the
informant Ratan Paul who lodged the case against the
accused. He is the maternal uncle of the victim. His sister,
i.e the mother of the victim informed him that on the date
prior to the lodging of the FIR she informed him to come to
her residence and accordingly, he went there when his
sister told him that about two months back the accused
being the private tutor of the victim girl finding her alone,
touched her breast and outraged her modesty and also
accused showed her obscene images/photos to the victim
girl in his mobile phone. Then he advised his sister to take
recourse of law.
During cross-examination he stated that he came
to know the alleged occurrence from his sister not from the
victim and he could not say when he gave statement to the
I.O.
08. PW-6, Sahadeb Paul deposed that the informant
Ratan Paul lodged the case about 3/4 years back. The
accused was the private tutor of the victim. The mother of
the victim told him that prior to lodging of the case the
accused touched the breast of the victim girl. Then he
advised the mother of the victim girl to take recourse of
law. During cross-examination he deposed that he did not
have any talk with the police in connection with this case.
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09. PW-7, Munna Majumder is the IO who deposed
that on 18.06.2019 she was posted as SI of Police of East
Agartala Women PS. That day, SI Mina Debbarma of East
Agartala Women PS received one written complaint from the
informant Ratan Paul and accordingly registered East
Agartala Women PS Case No.2019/WEA/030 under Section
354(A)(1)(i)(iv) of the IPC and Section 8 of the POCSO Act
and the case was endorsed to her for investigation. She
identified the signature of SI Mina Debbarma on printed FIR
form marked Exbt.3/2 and identified the printed FIR form
marked Exbt.3. In course of investigation she examined the
victim, recorded her statement, arranged for medical
examination of the victim from GBP Hospital and she visited
the PO and prepared hand sketch map with separate index.
She identified the hand sketch map marked Exbt.6 and her
signature marked Exbt.6/1. She identified the separate
index of the hand sketch map marked Exbt.7 and her
signature marked Exbt.7/1. She also seized the original
birth certificate of the victim by preparing a seizure list and
identified the same marked Exbt.4 and her signature
marked Exbt.4/3 and also confirmed Exbt.5, i.e. the birth
certificate. She caused arrest of accused, arranged for
recording statement of the victim girl and after completion
of investigation, she laid chargesheet against the convict-
appellant.
During cross-examination she stated that the
victim did not state to her that due to fear she did not
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report the matter to her mother, but again volunteered that
the said fact was stated to her by the mother of the victim.
She further stated that during investigation it was not
revealed to her that there were other students taking the
tuition along with the victim girl. Again volunteered that the
victim used to take tuition classes alone from the accused
person where the alleged occurrence took place.
10. These are the sum and substance of the evidence
on record of the prosecution in respect of determination of
the aforesaid points. The convict appellant in course of his
examination under Section 313 of Cr.P.C. denied the
allegation of the prosecution and took the plea that due to
his busy schedule he used to take classes along with other
students of the victim girl and further took the plea that he
used to take computer class in a batch where 18/19
students used to take classes along with the victim. The
name of the students were Bhargav, Bhairab Das,
Shibojyoti, Arkaprabha Barman, Anubhav Debnath and the
brother of the girl used to take tuition in a different batch.
One day he rebuked the girl in the tuition class due to her
poor performance in the examination in her private class
and he asked her to bring her marksheet on the next day so
that it can be shown to her guardian. Thereafter she
stopped coming to the tuition classes and thereafter one
day police came to his house and the convict-appellant in
course of his examination under Section 313 of Cr.P.C. also
desired to adduce witness in support of his defence.
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Accordingly, two witnesses were adduced by the accused-
appellant.
11. DW-1, Arkaprava Barman deposed that he know
the accused Samar Debnath and the accused was his
Computer Teacher since he was reading in class VI and in
their batch 19/20 students used to study including the
victim. The accused Samar Debnath used to teach them
only in batch and never any private class was taken by him
regarding any student. He further stated that when they
used to perform badly in the exam then their Computer
Teacher used to scold them. During the year 2019 in the
middle part of the month of April their Computer Teacher
Samar Debnath scolded the victim in their class before
everybody for her low/bad performance in the exam and
she was asked by the accused to bring her report card on
the next date so that the accused person could have a talk
with her parents and after that the victim girl stopped
attending the tuition class of the accused. During cross-
examination by the prosecution nothing came out relevant
save and except denial.
12. DW-2, Bhairab Das also deposed that he know
the accused Samar Debnath as his Computer Teacher when
he was reading in Class VI. He further stated that in their
batch in the computer class in total 19 to 20 students used
to study including the victim girl and the accused used to
teach them in a batch and never took any private class
regarding any students. He further stated that when they
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used to perform badly in their exam then their Computer
Teacher Samar Debnath used to scold them. In the year
2019 in the middle part of April their Teacher Samar
Debnath scolded the victim girl in their class before
everybody and she was asked by the accused to bring her
report card on the next date so that regarding lower
performance of the victim girl the accused could have a talk
with her parents. After that, the victim girl stopped
attending the tuition class of the accused. During cross-
examination save and except denial nothing came out
relevant from the side of the prosecution.
These are the evidence on record of the appellant
before the Learned Trial Court in support of his defence.
13. Heard Mr. S. Kar Bhowmik, Learned senior
counsel assisted by Mr. E.L. Darlong and Mr. S. Bal, Learned
counsel representing the appellant and also heard Mr. S.
Ghosh, Learned Addl. P.P. representing the
prosecution/state respondent. At the time of hearing of
argument Learned senior counsel for the appellant first of all
drawn the attention of the court that the relevant column of
the FIR in respect of occurrence of offence and also
regarding information received at PS and submitted that in
the FIR no specific date and time was mentioned by the
informant and the case was registered on 18.06.2019 after
a long period of time. But there was no satisfactory
explanation regarding delay in lodging the FIR. Although in
relevant column No.8 it was simply mentioned that ‘due to
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fe
ar’, but in this regard also no explanation was given in the
FIR and even during trial before the Learned Court below
prosecution has failed to prove the exact date and time and
also the grounds regarding lodging the FIR after a long
period of time for which the prosecution case has become
doubtful. Learned senior counsel has further submitted that
in this case except the victim there is no independent
witnesses were produced to support the case of the victim.
Although the victim in course of her examination tried to
highlight some incriminating evidence against the appellant
but her evidence was also not free from embellishment
because in the case at hand the appellant has adduced two
defence witnesses and those two witnesses are/were the
classmates of the victim and they were present at the time
of alleged occurrence but they did not support the case of
the victim. Furthermore, from the evidence on record
according to Learned Senior counsel, it appeared that the
victim used to mpanying by
go to her Teacher’s house acco
her parents but surprisingly the victim never divulged the
said fact of alleged occurrence of offence either to her father
or mother, soon after the alleged occurrence, rather after a
long delay this case was manufactured against the
appellant. Furthermore, according to Learned senior counsel
as the appellant rebuked the victim for bad performance in
the examination and she was asked to bring her report card
regarding her poor performance, but all on a sudden she
stopped going to the residence of the appellant and
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thereafter manufactured the case. Learned senior counsel
appearing for the appellant further submitted that there
were lot of improvements in the case because from the
evidence on record of the prosecution witnesses, it appears
that the parents of the victim and others during their
examination for the first time narrated some incident which
they earlier did not disclose the same to the I.O. of the
case. More interestingly, the evidence of the witnesses of
the accused could not be unshaken by the prosecution in
the case save and except denial. There was no evidence on
record, the appellant took any extra class to the victim. So
Learned senior counsel for the appellant further submitted
that the appellant in course of his examination under
Section 313 of Cr.P.C. gave a clear explanation to the
answers of the questions put to him and finally submitted
that the evidence of the prosecution were suffers from
various infirmities which the prosecution has failed to
explain, but the Learned court below did not consider those
points and ultimately gave an erroneous finding against the
present convict appellant for which the interference of the
court is required and urged for setting aside the judgment.
14. On the other hand, Learned Addl. P.P. Mr. S.
Ghosh appearing for the state in course of hearing of
argument submitted that the prosecution has been able to
prove the charge levelled against the convict appellant and
referring the evidence of parents of the victim as well as the
victim herself. Learned Addl. P.P. drawn the attention of the
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court that the accused by the trend of cross-examination of
those witnesses could not raise any doubt to disbelieve their
evidence and furthermore here in the case presumption
would go against the convict appellant. So finally Learned
Addl. P.P. urged for dismissal of the appeal upholding the
judgment of sentence and conviction by the Learned Trial
court.
15. To substantiate the charges Learned counsels of
both the parties during argument have referred some
citations. Learned Senior counsel appearing for the
appellant at the time of hearing of argument relied upon
one citation of our High Court in connection with Crl.A(J)
No.19 of 2022 in Haripada Bhim vs. State of Tripura
dated 18.01.2023 and referred para Nos.12, 18, 19, 20 and
21 of the said citation and which reads as under:
[12] In view of above depositions, let us discuss the
other relevant witnesses for a clear view. PW-2, Smti.
Jharna Debnath, the mother of the victim in her
examination in chief stated on 26.08.2019 her daughter
told her that on the previous day at about 7.00am when
she went to attend her private tuition in the house of the
accused and when she was on the stairs, the appellant
grabbed her from behind and touched various parts of
her body. Surprisingly she stated in her chief that she
wrote the complaint as per version of her husband and
thereafter he put his signature. As per prosecution case
the victim first disclosed the alleged incident to her
mother i.e. PW-2 had the first hand information, but in
the present case the FIR has been drafted as per
dictation of the father, who allegedly heard the incident
from the mother of the victim.
[18] PW-4, Akarshi Majumder, the classmate of the
victim and they only independent witness of this case in
her examination-in-chief did not utter anything
incriminating against the appellant and during her
crossexamination she stated the appellant used to teach
in a batch consisting of 35/40 students. She stated that
she was also a student of morning batch starting from 7
to 9am. She further stated that on 25.08.2019 along with
her friends namely Miss Prantika Roy and the victim went
together to their tuition class taking the staircase and
thereafter they came out together at about 9.00am.
Further, it has been stated that on the alleged day when
she went to the classroom, she found her teacher was
already present there. She further stated that on the date
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of alleged incident the victim took tuition together and
was happy. In her cross further confirmed that when her
victim friend was accompanying her on 25.08.2019 no
incident occurred as per her belief.
[19] This vital portion of evidence was totally missed by
the learned Court below that firstly the alleged incident
happened in the staircase and the victim was
accompanied by her two other friends during climbing
upto the tuition room, as such the prosecution case is
false to its core. This vital aspect of the case was grossly
overlooked by the Court below while passing the
impugned judgment and order of conviction thus, making
the same liable to be set aside.
[20] The way the prosecution has projected the case and
being found serious contradictions and inconsistencies in
the statements in course of trial, it would be very difficult
for this Court to believe the projected case of the
prosecution. It is settled proposition of law that the
charge framed against the accused person has to be
established and proved beyond any shadow of doubt.
Suspicions, however, grave in nature, should not amount
to prove. The discrepancies which are found in this case
as analyzed above, appeared to be abnormal in nature
which is not expected from a normal person. After
cautious scrutiny of the evidence and considering the
entire chain of circumstances, this Court finds it difficult
to arrive at a finding to draw the hypothesis of guilt
against the accused appellant.”
Referring the said citation Mr. Kar Bhowmik,
Learned senior counsel submitted that the fact of the
present case is almost similar to the subject matter of that
case deci ble High Court earlier and also
ded by the Hon’
submitted before the court to take note of the said citation
in deciding the present case.
16. Mr. S. Kar, Bhowmik, Learned senior counsel
further relied upon another citation of Kolkata High Court
in Case No.C.R.A. No.167 of 2017 dated 15.01.2020 in
Jakir Hosain Mondal vs. State of West Bengal and
relied upon para-3, 11, 18, 20 and 21 of the said citation
which observed as under:
“3. The brief facts leading to this appeal is that on
20.06.2016, the victim girl; is daughter of the
complainant who told her mother that the
appellant/accused had touched the private part of the
victim girl. On 23.06.2016 at about 3 p.m. when the
victim girl returned gome, she disclosed to her mother
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that the appellant had once again touched her private
part when she had gone to take private tuition.
11. Admittedly, PW1 had not revealed the fact to any
school teacher or to the wife of the accused/appellant or
to her school-mate and after 10 days from the date of the
incident, she told the fact to her mother and never
informed about any pain or suffering as deposed in her
examination-in-chief. There was no cut injury in her
private part. Her testimony in unequivocal term reveals
that it was her mother who tutored her to make such
statement before the Judicial Magistrate. Accordingly,
being tutored she has stated to the Magistrate that Jakir
master, the appellant herein, had ejaculated in her
vagina. But such is not the real fact as there is no
corroboration by medical report. Rima Sarkar, PPW2,
mother of the victim girl has deposed , on the contrary,
after getting tuition on the alleged date of incident, her
daughter returned home and she was crying and
subsequently stated to her that Jakir master, the
appellant herein, had ejaculated in her vagina. So,
according to PW2, on the next date, she sent her
daughter for getting private tuition and the same incident
occurred, then she saw vagina of her daughter and found
redness and nail abrasion in and around. But such facts
as deposed by PW2 does not find corroboration by the
medical evidence too. Dr. Apurba Kundu, PW8, who
examined the victim girl but found no mark of injury on
her private part or any part of her body. PW8 found no
rupture of hymen or presence of any foreign body in her
private part.
12. Therefore, the prosecution case appears to be a
concocted and false care being foisted against the
accused/appellant as I find no justification for PW2 to
have sent her daughter on the next day to Jakir master to
take tuition instead of reporting the matter instantly to
police station and visiting to a doctor for medical
examination to ascertain redness and cut mark on her
daughter‟s vagina when PW2 found her daughter crying
and complained of pain in her private part due to
ejaculation by Jakir Master.
18. Now, turning to the observation and finding of the
trial Judge in the impugned judgment convicting the
appellant under Section 10 of the POCSO Act, this Court
finds that the appellant faced trial for charge under
Section 6 of the said Act. The Court held the appellant
guilty of the offence under Section 10 of the POCSO Act.
No doubt the POCSO Act was enacted to effectively
address the sexual abuse and sexual exploitation of
children below 18 years of age which provides different
forms of sexual abuse including the penetrative and non-
penetrative assault as well as sexual harassment and
show of pornography and defines aggravated penetrative
sexual assault and also provides for mandatory reporting
of sexual offences which cast a legal duty of every person
having knowledge that a child has been sexually abused
to report the offence, but that does not mean that the
provision of the Act has to be attracted to falsely
implicate any innocent person out of personal dispute or
political rivalry.”
Referring the said judgment Learned Senior
counsel drawn the attention of the court that the Learned
Trial Court failed to appreciate the evidence on record of the
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prosecution as well as the defence at the time of delivery of
judgment and came to an erroneous finding without any
basis and on the basis of some omnibus statements found
the convict appellant to be guilty and convicted him
accordingly and urged before the court to set aside the
judgment by setting the convict appellant free from the
charges.
17. Per contra, Learned Addl. P.P. S. Ghosh at the
time of hearing of argument in support of his contention
also referred few citations. In Alagupandi alias
Alagupandian vs. State of Tamil Nadu reported in
(2012) 10 SCC 451 in para Nos.24 and 25 he
Hon’ble t
Apex Court observed as under:
“24. Furthermore, it is contended that the statement of
PW-1 cannot be relied upon by the Court also for the
ground that he is an interested witness. This argument is
equally without merit. The presence of PW1 at the house
of his sister is natural. He was working as a cleaner and
was staying with his sister in the same village. He was
sleeping outside the house of the deceased and went
towards the house upon hearing her screams. Every
witness, who is related to the deceased cannot be said to
be an interested witness who will depose falsely to
implicate the accused. In the present case, the accused is
also related to PW1 and there could be no reason for PW1
to falsely implicate the accused.
25. We have already discussed that the statement of PW1
is worthy of credence. In the case of Mano Dutt & Anr. v.
State of U.P. [Crl. Appeal No. 77 of 2007 decided on 29th
February, 2012], a Bench of this Court held that it is not
the quantity but the quality of the evidence which would
bring success to the case of the prosecution or give
benefit of doubt to the accused. Statement of every
related witness cannot, as a matter of rule, be rejected
by the Courts.
36. It is a settled principle of law that a child witness can
be a competent witness provided statement of such
witness is reliable, truthful and is corroborated by other
prosecution evidence. The Court in such circumstances
can safely rely upon the statement of a child witness and
it can form the basis for conviction as well. Further, the
evidence of a child witness and credibility thereof would
depend upon the circumstances of each case. The only
precaution which the court should bear in mind while
assessing the evidence of a child witness is that the
witness must be reliable one and his/her demeanour
must be like any other competent witness and that there
exists no likelihood of being tutored. There is no rule or
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practice that in every case the evidence of such a witness
be corroborated by other evidence before a conviction
can be allowed to stand but as a rule of prudence the
Court always finds it desirable to seek corroboration to
such evidence from other reliable evidence placed on
record. Further, it is not the law that if a witness is a
child, his evidence shall be rejected, even if it is found
reliable. (Ref. Dattu Ramrao Sakhare v. State of
Maharashtra [(1997) 5 SCC 341] and Panchhi v. State of
U.P. [(1998) 7 SCC 177].”
Relying upon the same Learned Addl. P.P.
submitted that in the Indian context the court should laid
emphasis on value, weight and quality of evidence rather
than on quantity, multiplicity or plurality of witnesses. Here
in the case at hand from the evidence on record it is clear
that the prosecution has been able to prove the charge
levelled against the appellant. So according to Learned Addl.
P.P. Learned court below rightly hold the convict appellant
to be guilty for the charges and convicted him accordingly.
18. In State of H.P. vs. Gian Chand reported in
(2001) 6 SCC 71 in para No.14
Hon’ble the Apex court
observed as under:
“14. So far as non-examination of other witnesses and an
adverse inference drawn by the High Court therefrom is
concerned, here again we find ourselves not persuaded
to subscribe to the view taken by the High Court. The
prosecutrix, PW7 has stated that soon before the incident
she was playing with three girl-children of the same age
as of hers and they were present when the accused
committed rape on her. One of the girls picked up a
broom and had tried to scare away the accused by
striking the broom on him. This little friend of the victim
had also raised a hue and cry but none from the
neighbourhood came to the spot. These girls were none
else than daughters of her uncle. What the High Court
has failed to see is that these girls were of tender age
and could hardly be expected to describe the act of
forcible sexual intercourse committed by the accused on
PW7. Secondly, these girls would obviously be under the
influence of their parents. We have already noted the co-
sister of PW1 turning hostile and not supporting the
prosecution version. How could these little girls be
expected to be away from the influence of their parents
and depose freely and truthfully in the Court? Non-
examination of a material witness is again not a
mathematical formula for discarding the weight of the
testimony available on record howsoever natural,
trustworthy and convincing it may be. The charge of
withholding a material witness from the Court levelled
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against the prosecution should be examined in the
background of facts and circumstances of each case so as
to find whether the witnesses were available for being
examined in the Court and were yet withheld by the
prosecution. The Court has first to assess the
trustworthiness of the evidence adduced and available on
record. If the Court finds the evidence adduced worthy of
being relied on then the testimony has to be accepted
and acted on though there may be other witnesses
available who could also have been examined but were
not examined. However, if the available evidence suffers
from some infirmity or cannot be accepted in the absence
of other evidence which though available has been
withheld from the Court, then the question of drawing an
adverse inference against the prosecution for non-
examination of such witnesses may arise. It is now well-
settled that conviction for an offence of rape can be
based on the sole testimony of prosecutrix corroborated
by medical evidence and other circumstances such as the
report of chemical examination etc. if the same is found
to be natural, trustworthy and worth being relied on.
If the evidence of the prosecutrix inspires
confidence, it must be relied upon without seeking
corroboration of her statement in material
particulars. If for some reason the court finds it
difficult to place implicit reliance on her testimony,
it may look for evidence which may lend assurance
to her testimony, short of corroboration required in
the case of an accomplice. The testimony of the
prosecutrix must be appreciated in the background
of the entire case and the trial court must be alive
to its responsibility and be sensitive while dealing
with cases involving sexual molestations.
___ is the law declared in State of Punjab Vs.
Gurmit Singh & Ors. (1996) 2 SCC 384. [Also
see State of Rajasthan Vs. N.K. -(2000) 5 SCC 30,
State of Himach Pradesh Vs. Lekh Raj & Anr. -
(2000) 1 SCC 247, Madan Gopal Kakkad Vs. Naval
Dubey and Anr. - (1992) 3 SCC 204]. In the
present case we are clearly of the opinion that in
view of the accused being a relation of the in-laws
of the mother of the prosecutrix and the other
young girls who are alleged to have been not
examined being from the family of such in-laws, it
is futile to expect that such girls would have been
allowed by their parents to be examined as
witnesses, and if allowed, could have freely
deposed in the Court. The question of drawing an
adverse inference against the prosecution for such
non-examination does not arise.”
Relying upon the same Learned Addl. P.P.
submitted that since the evidence of the victim inspires
confidence and the appellant by the trend of cross-
examination could not raise any doubt to disbelieve her
evidence, so the evidence of the victim should be relied
upon and the appeal be dismissed.
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19. In Rai Sandeep alias Deepu vs. State (NCT of
Delhi) reported in (2012) 8 SCC 21
, Hon’ble the Apex
court in para No.15 observed as under:
“15. Keeping the above basic features of the
offence alleged against the appellants in mind,
when we make reference to the evidence of the so
called „sterling witness‟ of the prosecution,
namely, the prosecutrix, according to her version
in the chief examination when the persons who
knocked at the door, were enquired they claimed
that they were from the crime branch which was
not mentioned in the FIR. She further deposed that
they made a statement that they had come there
to commit theft and that they snatched the chain
which she was wearing and also the watch from
Jitender (PW-11). While in the complaint, the
accused alleged to have stealthily taken the gold
chain and wrist watch which were lying near the
T.V. It was further alleged that the appellant in
Criminal Appeal No.2486 of 2009 was having a
knife in his hand which statement was not found in
the complaint. After referring to the alleged
forcible intercourse by both the appellants she
stated that she cleaned herself with the red colour
socks which was taken into possession under
Exhibit PW-4/B in the hospital, whereas, Exhibit
PW- 4/B states that the recovery was at the place
of occurrence. The police stated to have
apprehended the appellants at the instance of
Jitender (PW-11).”
Referring the same Learned Addl. P.P. submitted
that here in the given case the victim was a sterling witness
of the prosecution and her evidence was free from
embellishment. So according to Learned Addl. P.P. there
was no scope to disbelieve her evidence.
20. In State of Maharashtra vs. Chandraprakash
Kewalchand Jain reported in (1990) 1 SCC 550
, Hon’ble
the Supreme Court observed in para No.16 as under:
“16. A prosecutrix of a sex-offence cannot be put
on par with an accomplice. She is in fact a victim of
the crime. The Evidence Act nowhere says that her
evidence cannot be accepted unless it is
corroborated in material particulars. She is
undoubtedly a competent witness under Section
118 and her evidence must receive the same
weight as is attached to an injured in cases of
physical violence. The same degree of care and
caution must attach in the evaluation of her evi-
dence as in the case of an injured complainant or
witness and no more. What is necessary is that the
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Court must be alive to and conscious of the fact
that it is dealing with the evidence of a person who
is interested in the outcome of the charge levelled
by her. If the Court keeps this in mind and feels
satisfied that it can act on the evidence of the
prosecutrix, there is no rule of law or practice
incorporated in the Evidence Act similar to
illustration (b) to Section 114 which requires it to
look for corroboration. If for some reason the
Court is hesitant to place implicit reliance on the
testimony of the prosecutrix it may look for
evidence which may lend assurance to her
testimony short of corroboration required in the
case of an accomplice. The nature of evidence
required to lend assurance to the testimony of the
prosecutrix must necessarily depend on the facts
and circumstances of each case. But if a
prosecutrix is an adult and of full understanding
the Court is entitled to base a conviction on her
evidence unless the same is shown to be infirm
and not trustworthy. If the totality of the circum-
stances appearing on the record of the case
disclose that the prosecutrix does not have a
strong motive to falsely involve the person
charged, the Court should ordinarily have no
hesitation in accepting her evidence. We have,
therefore, no doubt in our minds that ordinarily the
evidence of a prosecutrix who does not lack
understanding must be accepted. The degree of
proof required must not be higher than is expected
of an injured witness. For the above reasons we
think that exception has rightly been taken to the
approach of the High Court as is reflected in the
following passage:
"It is only in the rarest of rare cases if the
Court finds that the testimony of the
prosecutrix is so trustworthy, truthful and
reliable that other corroboration may not be
necessary."
With respect, the law is not correctly stated. If we
may say so, it is just the reverse. Ordinarily the
evidence of a prosecutrix must carry the same
weight as is attached to an injured person who is a
victim of violence, unless there are special
circumstances which call for greater caution, in
which case it would be safe to act on her testimony
if there is independent evidence lending assurance
to her accusation.”
Relying upon the said judgment Learned Addl.
P.P. submitted that there is nothing in the Evidence Act that
the evidence of the victim cannot be accepted unless it is
corroborated in material particulars and the victim herself is
a competent witness under Section 118 of Evidence Act and
her evidence must receive the same weight as is attached
to an injured in cases of physical violence.
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21. In Mano Dutt and Another vs. State of Uttar
Pradesh reported in (2012) 4 SCC 79
Hon’ble the Apex
court in para Nos. 24 and 25 held as under:
“24. Another contention raised on behalf of the
accused/appellants is that only family members of the
deceased were examined as witnesses and they being
interested witnesses cannot be relied upon. Furthermore,
the prosecution did not examine any independent
witnesses and, therefore, the prosecution has failed to
establish its case beyond reasonable doubt. This
argument is again without much substance. Firstly, there
is no bar in law in examining family members, or any
other person, as witnesses. More often than not, in such
cases involving family members of both sides, it is a
member of the family or a friend who comes to rescue
the injured. Those alone are the people who take the risk
of sustaining injuries by jumping into such a quarrel and
trying to defuse the crisis. Besides, when the statement
of witnesses, who are relatives, or are parties known to
the affected party, is credible, reliable, trustworthy,
admissible in accordance with the law and corroborated
by other witnesses or documentary evidence of the
prosecution, there would hardly be any reason for the
Court to reject such evidence merely on the ground that
the witness was family member or interested witness or
a person known to the affected party.
25. There can be cases where it would be but inevitable
to examine such witnesses, because, as the events
occurred, they were the natural or the only eye witness
available to give the complete version of the incident. In
this regard, we may refer to the judgments of this Court,
in the case of Namdeo v. State of Maharashtra, [(2007)
14 SCC 150]. This Court drew a clear distinction between
a chance witness and a natural witness. Both these
witnesses have to be relied upon subject to their
evidence being trustworthy and admissible in accordance
with the law.”
Relying upon the same Learned Addl. P.P.
submitted that although independent witness could not be
examined by the prosecution. But in view of the subject
matter of the dispute there was no scope to disbelieve the
evidence on record of the prosecution including the
evidence of the victim which was trustworthy.
22. In Vijay alias Chinee vs. State of Madhya
Pradesh reported in (2010) 8 SCC 191
, Hon’ble the Apex
court in para Nos.10 and 11 observed as under:
“10. In State of U.P. Vs. Pappu @Yunus & Anr. AIR 2005
SC 1248, this Court held that even in a case where it is
shown that the girl is a girl of easy virtue or a girl
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habituated to sexual intercourse, it may not be a ground
to absolve the accused from the charge of rape. It has to
be established that there was consent by her for that
particular occasion. Absence of injury on the prosecutrix
may not be a factor that leads the court to absolve the
accused. This Court further held that there can be
conviction on the sole testimony of the prosecutrix and in
case, the court is not satisfied with the version of the
prosecutrix, it can seek other evidence, direct or
circumstantial, by which it may get assurance of her
testimony. The Court held as under:-
"It is well settled that a prosecutrix complaining of
having been a victim of the offence of rape is not
an accomplice after the crime. There is no rule of
law that her testimony cannot be acted upon
without corroboration in material particulars. She
stands at a higher pedestal than an injured
witness. In the latter case, there is injury on the
physical form, while in the former it is both
physical as well as psychological and emotional.
However, if the court of facts finds it difficult to
accept the version of the prosecutrix on its face
value, it may search for evidence, direct or
circumstantial, which would lend assurance to her
testimony. Assurance, short of corroboration as
understood in the context of an accomplice, would
do."
11. In State of Punjab Vs. Gurmit Singh & Ors. AIR 1996
SC 1393, this Court held that in cases involving sexual
harassment, molestation etc. the court is duty bound to
deal with such cases with utmost sensitivity. Minor
contradictions or insignificant discrepancies in the
statement of a prosecutrix should not be a ground for
throwing out an otherwise reliable prosecution case.
Evidence of the victim of sexual assault is enough for
conviction and it does not require any corroboration
unless there are compelling reasons for seeking
corroboration. The court may look for some assurances of
her statement to satisfy judicial conscience. The
statement of the prosecutrix is more reliable than that of
an injured witness as she is not an accomplice. The Court
further held that the delay in filing FIR for sexual offence
may not be even properly explained, but if found natural,
the accused cannot be given any benefit thereof. The
Court observed as under:-
8….The court overlooked the situation in
which a poor helpless minor girl had found
herself in the company of three desperate
young men who were threatening her and
preventing her from raising any alarm.
Again, if the investigating officer did not
conduct the investigation properly or was
negligent in not being able to trace out the
driver or the car, how can that become a
ground to discredit the testimony of the
prosecutrix? The prosecutrix had no control
over the investigating agency and the
negligence of an investigating officer could
not affect the credibility of the statement of
the prosecutrix...............The courts must,
while evaluating evidence remain alive to
the fact that in a case of rape, no self-
respecting woman would come forward in a
court just to make a humiliating statement
against her honour such as is involved in the
commission of rape on her. In cases
involving sexual molestation, supposed
considerations which have no material effect
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on the veracity of the prosecution case or
even discrepancies in the statement of the
prosecutrix should not, unless the
discrepancies are such which are of fatal
nature, be allowed to throw out an
otherwise reliable prosecution
case.............Seeking corroboration of her
statement before replying upon the same as
a rule, in such cases, amounts to adding
insult to injury............Corroboration as a
condition for judicial reliance on the
testimony of the prosecutrix is not a
requirement of law but a guidance of
prudence under given circumstances.
** ** ** **
21.The courts should examine the broader
probabilities of a case and not get swayed by
minor contradictions or insignificant
discrepancies in the statement of the
prosecutrix, which are not of a fatal nature,
to throw out an otherwise reliable
prosecution case. If evidence of the
prosecutrix inspires confidence, it must be
relied upon without seeking corroboration of
her statement in material particulars. If for
some reason the court finds it difficult to
place implicit reliance on her testimony, it
may look for evidence which may lend
assurance to her testimony, short of
corroboration required in the case of an
accomplice. The testimony of the prosecutrix
must be appreciated in the background of
the entire case and the trial court must be
alive to its responsibility and be sensitive
while dealing with cases involving sexual
molestations.
[emphasis in original]”
Relying upon the same Mr. Ghosh, Learned Addl.
P.P. submitted that in a case of this nature it is the duty of
the court to consider the cases with utmost sensitivity and
minor contradictions or insignificant discrepancies in the
statement of the victim should not be a ground for discard
the prosecution case.
23. In Joubansen Tripura vs. State of Tripura
reported in (2021) 2 TLR 367 our High Court in para
No.12 observed as under:
“12. Upon meticulous reading of Sections 29 and 30 of
the POCSO Act, according to us, prosecution will
commence the trial with an additional advantage that
there will be presumption of guilt against the accused
person, but, in our considered view, such presumption
cannot form the basis of conviction, if that be so, it would
offend Article 20(3) and 21 of the Constitution of India.
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Perhaps, it is not the object of the legislature to
incorporate Sections 29 and 30 under the POCSO Act.”
Relying upon the same Learned Addl. P.P.
submitted that here in the case at hand there is every scope
to draw adverse inference under Section 29 and 30 of the
POCSO Act against the convict appellant and the Learned
Court below in delivering the judgment relied upon those
provisions of law and also submitted for taking note of the
aforesaid citation in deciding the case.
24. In Kazi Rafikul Islam vs. State of Tripura
reported in (2022) 1 TLR 879, in para-31 our High Court
observed as under:
“31.It is settled proposition of law that the court is not
supposed to give undue importance to omissions,
contradictions and discrepancies which do not go to the
heart of the matter, and shake the basic version of the
prosecution witness. Thus, the court must read the
evidence of a witness as a whole, and consider the case
in light of the entirety of the circumstances, ignoring the
minor discrepancies with respect to trivial matters, which
do not affect the core of the case of the prosecution. The
said discrepancies as mentioned above should not be
taken into consideration, as they cannot form grounds for
rejecting the evidence on record as a whole.”
Relying upon the same Learned Addl. P.P.
submitted that the court is not supposed to give undue
importance to minor contradictions, omissions and
discrepancies which do not go the heart of the matter and
shake the basic version of the prosecution case. Finally
Learned Addl. P.P. submitted before the court that since the
prosecution has been able to prove the charge before the
Learned court below beyond reasonable doubt and Learned
court below after considering the evidence on record found
the appellant to be guilty which do not warrant any
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interference and urged for upholding the judgment of the
Learned Trial Court.
25. I have heard detailed arguments of Learned
counsel of the parties at length and also gone through the
record of the Learned court below very carefully and the
principles of law laid down by the Hon’ble Apex court and
High court in the aforenoted cases. In the given case there
is no dispute on record regarding identity of the alleged
appellant as the accused of the case. The appellant also did
not dispute anything regarding the age of the victim in
course of hearing of arguments and from the record it
appears that before the Learned Trial court, prosecution
proved the birth certificate of the victim which was duly
proved by the witnesses of the prosecution. Now we are to
see how far the prosecution has been able to prove the
charge levelled against the convict appellant. As already
stated, Learned court below framed charge against the
appellant under Section 354A of the IPC and also under
Section 8 of POCSO Act and accordingly witnesses were
adduced by the prosecution.
26. I have discussed the evidence on record of the
prosecution as well as the defence in detail earlier. From the
evidence on record specifically from the evidence of the
informant, his wife and the victim i.e. PWs 2, 3 and 4 it
appears to me that according to them the alleged incident
took place in the month of April, 2019 and the case was
registered in the month of June i.e. on 18.06.2019, after a
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long gap. Although prosecution tried to establish that due to
fear there was delay in lodging the FIR. But surprisingly,
none of the witnesses of the prosecution i.e. PWs 2, 3 and 4
could say about the exact date of alleged occurrence of
offence. Prosecution before the Learned Trial court and also
at the time of hearing of argument before this court could
not give any explanation in this regard. From the evidence
on record it appears that there was only one allegation
against the convict appellant to outrage modesty of the
victim by the convict appellant by pressing her breasts and
also with allegation that the appellant showed obscene
pictures to the victim and according to the prosecution save
and except the victim no other witnesses could witness the
occurrence of offence on the alleged date. Now if we go
through the evidence of PW-2, i.e. the informant and the
FIR it appears that he heard the fact of incident from his
wife. But when he turned up to the witness box for the first
time he made a different statement that the convict
appellant outraged the modesty of the victim by touching
her various parts of the body including her breasts and
showed her pornographic videos in his mobile phone. This
fact was never stated by the informant in his FIR nor to the
I.O. in course of recording his statement under Section 161
of Cr.P.C and prosecution could not give any explanation in
this regard. So it appears that, that portion of evidence of
the informant made first time by him before the court, so no
reliance could be placed upon it.
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27. Now if we go through the evidence of PW-4, i.e.
the wife of the informant it also appears that she also
deposed in the same manner like her husband i.e. PW-2.
She is not the eye witness of the occurrence of offence. She
deposed just after hearing the fact of alleged incident from
her daughter. It is also on record that when the victim used
to go to the residence of the convict appellant that time
either PW-2 or PW-4 used to accompany her. From the
evidence on record it appears that the alleged incident took
place only one day. As already stated neither the victim nor
her parents could say the exact date when the actual
incident took place which creates a doubt about the
genuineness of the prosecution story.
28. Now if we go through the evidence of PW-3 i.e.
the victim it appears that she could not say the exact date
of alleged occurrence of offence. But she took the plea that
she went to take extra class of computer at the dwelling
house of convict appellant where the accused showed her
some obscene videos and touched her breasts. But during
cross-examination this victim girl she specifically stated that
in her computer class there were three students including
her, namely one Shibojyoti and after some time Bhairab
Das, Arkaprava Barman, Somraj Dipta, Anubhav Debnath
and others attended the class. Had there be any sort of
incident definitely the victim could divulge the fact to those
students and there is also no evidence on record that in
absence of those students the convict appellant committed
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the offence on that day. Furthermore, according to the
prosecution, the victim witness used to accompany her
parents when she used to attend the classes of Teacher.
Soon after the incident the victim definitely could divulge
the fact to her parents at least to her mother, but
surprisingly after a period of one and half month she all on
a sudden narrated the said incident to her mother who in
turn reported the fact to her father i.e. PW-2. This genesis
of the prosecution story appears to be very confusing and
appears to be manufactured and not at all trustworthy.
There is no evidence on record that the victim individually
attended classes and there is no evidence on record that the
convict appellant committed the offence in absence of other
students rather there is evidence on record on that day
apart from the victim some other students were there, then
how the convict appellant committed the offence in
presence of other students on that day. There is also no
evidence on the record from the side of the prosecution that
prior to the arrival of students the convict appellant
committed the offence. No explanation in this regard from
the side of the prosecution before the Trial court nor to this
court at the time of argument. Other witnesses of the
prosecution such as PWs 5 and 6, they are the heresay
witnesses and they could not say anything about the
prosecution story rather they after hearing the alleged fact
from PW-4 deposed before the court. So virtually there is no
scope to place any reliance upon their evidence.
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29. Now if we go through the evidence of DWs 1 and
2, i.e. the students of the convict appellant who are also the
classmates of the alleged victim very specifically stated that
on the alleged date their teacher i.e. the appellant
rebuked/scolded her for her poor performance and she was
asked to bring her report card/marksheet but she did not
turn up for a long period. The prosecution by the trend of
cross-examination of DWs 1 and 2 could not in any manner
raise any doubt to disbelieve their evidence. Learned Trial
court below took the plea that those witnesses being
tutored by their teacher deposed against the prosecution
case. But there is no evidence on record that those
witnesses were tutored or being feared by the teacher they
supported his case going against the prosecution case.
Further from the evidence on record specifically the
evidence of PWs 2 and 4 it is crystal clear that they heard
the fact of incident from their daughter. So here this case is
based only upon the evidence of PW-2. i.e. the victim. When
the victim herself is admitting that on that relevant day
apart from her some other students were there and those
witnesses i.e. DWs 1 and 2 are the classmates of the said
victim girl, so it is surprising as to how the Learned court
below decided to disbelieve their evidence rather it is on
record that the victim was attending the classes of the
alleged accused since last 2/3 years. There is no other
evidence on record that apart from the alleged day of
occurrence of offence the convict appellant also tried to
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commit such type of offence in earlier dates also. There was
a long delay which the prosecution could not explain
properly before the court rather from the evidence on
record i.e. the evidence of PWs 2 and 3 it appears that the
victim herself and her father made such statements for the
first time before the court nor those facts were divulged
either by the victim or her father at the time of lodging of
FIR nor to the I.O. during investigation. Even to the
Magistrate who recorded her statement under Section
164(5) of Cr.P.C. during investigation and this fast time
statement before the court does not make any credence in
the eye of law. There was no explanation in this regard from
the side of the prosecution. The citations as referred
although are relevant but the principle of the aforesaid
citations are in my considered view cannot be applied in this
case.
30. From the statements of object and reasons of the
POCSO Act it appears that since the sexual offences against
the children were not adequately addressed by the existing
laws, and the large number of offences were neither
specifically provided for nor were they adequately penalized
the POCSO Act was enacted by the Parliament to protect the
children from the offence of sexual harassment and
pornography and to provide for establishment of special
courts for trial of some offences and for the matters
connected therewith or incidental thereto. Herein the given
case although the Learned Trial court below framed the
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charge under Section 354A of the IPC and Section 8 of the
POCSO Act, but to substantiate the charge prosecution in
my considered view could not place any cogent materials
before the Trial court to sustain conviction against the
convict appellant. Then one question may arise about the
allegation of the victim against her teacher. In this regard it
is submitted that since the victim was attending the classes
of convict appellant since last 2/3 years and there was no
evidence on record that the present convict appellant also
tried to harass the victim in earlier occasions also. There is
also no evidence on record that the accused committed the
offence finding the victim alone in a room or there is no
evidence on record that in absence of the other students the
convict appellant committed the offence on the alleged day
rather there is evidence on record that on the alleged day
apart from the victim some other students were there and
furthermore the parents of the victim used to accompany
her to the residence of her private tutor. So had there be
any such of offence, in that case in my considered view the
victim definitely could divulge the fact at least any of the
students or to her mother soon after the incident on the
alleged day. There was long delay in lodging the FIR to
which the prosecution could not explain properly. Even none
of the witnesses of the prosecution that is the victim or her
parents could say about the exact date and time of the
alleged occurrence of offence. It may so happen that due to
scolding the victim by the convict-appellant for her poor
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performance of the exam she became annoyed and since he
(the appellant) rebuked her in presence of other students so
she ultimately tried to manufacture a new story because it
is on record that after a long period after the alleged
occurrence she did not attend her private class because of
vacation and later on being enquired by her mother she
divulged the fact and more interestingly the classmates of
the victim who according to the victim herself on the alleged
date were also present to the residence of alleged accused
for taking private tuition did not in any manner support the
version of the victim girl and her parents. Thus it appears to
me that the evidence of prosecution suffers from various
infirmities which prosecution has failed to explain in the
case and the Learned Trial Court ignoring the evidence on
record of the accused i.e. DWs 1 and 2 on the ground that
they might have under the pressure or threatening of the
accused being their teacher to save him from the charge
have deposed contrary against the prosecution case. There
is also no evidence on record that those two boys had
inimical relation at any point of time with the victim girl to
draw an adverse inference and as already stated during
their cross-examination by the prosecution save and except
denial the prosecution could not take at least any negative
inference against the convict-appellant from their evidence
at the time of recording evidence by the court.
31. Furthermore, on perusal of hand sketch and the
index of hand sketch map it also appears that in the index
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of hand sketch map ‘A’ is shown as the alleged PO and ‘L’ is
shown the tuition room. The prosecution also could not
explain through the evidence of witnesses actually in which
place the alleged occurrence took place. This discrepancy
also creates serious doubt regarding prosecution story. More
interestingly, the I.O. ought to have examined at least some
of the students who used to go to the residence of convict-
appellant for private tuition, but surprisingly the I.O. did not
take any effort in this regard. Rather during cross-
examination she stated that nothing was revealed to her
that some other students used to take private tuition and
also stated that victim used to take tuition class alone from
the accused. In this regard it is further submitted that if for
argument sake, it is found that the victim alone took private
tuition in that case also the I.O. could examine the family
members of the accused also to verify the truth. But I.O.
did not proceed in this manner and where the victim herself
during her cross-examination stated that on that relevant
day some other students were there apart from her, so it
was the bounded duty to the I.O. to examine some other
students who attended private tuition in the residence of the
convict appellant. But the I.O. also did not proceed in this
way which shows clear negligence of investigation by the
I.O. in the given case. The prosecution in course of hearing
of argument could not explain anything in this regard.
32. Thus it appears to this court that the way the
prosecution has projected this case and there are serious
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contradictions and inconsistencies in the statements of the
witnesses in course of trial, so it would be difficult for this
court to believe the projected case of the prosecution. So after
going through the evidence on record this court finds it
difficult to drawn the hypothesis of the guilt against the
convict-appellant. Thus in my considered view this is a fit case
where the appellant deserves to be acquitted on benefit of
doubt for want of proper evidence on record.
33. In the result, the appeal filed by the convict-
appellant is hereby allowed. The judgment and order of
conviction and sentence passed by the court of the Special
Judge (POCSO), West Tripura, Agartala in connection with
Case No. Special (POCSO) 27 of 2019 is thus hereby set aside.
The appellant namely Samar Debnath is hereby acquitted from
the charges levelled against him on benefit of doubt and he is
set at liberty. The surety of the convict-appellant also stands
discharged from the liability of the bail bond. Since the
appellant has been acquitted from the charge levelled against
him, so in pursuance of the order of the court the fine money
amounting to Rs.20,000/-(twenty thousand) if already been
deposited by the appellant be released by the Learned Trial
court (Special Court) henceforth. With this observation, this
case is disposed of on contest. Send down the LCR along with
a copy of this judgment. Pending application, if any, Stands
disposed of.
JUDGE
MOUMITA
Digitally signed by MOUMITA
DATTA
DATTA
Date: 2024.03.02 00:37:59 -08'00'
Moumita