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HIGH COURT OF TRIPURA
AGARTALA
Crl. A(J) 34 of 2023
Shri Nanda Malakar
Appellant(s)
……
Versus
State of Tripura
.......Respondent(s)
For the Appellant(s) : Mr. S. Bhattacharjee, Advocate.
For the Respondent(s) : Mr. Raju Datta, PP
Date of hearing & delivery
of judgment & order : 30.07.2024.
Whether fit for reporting : Yes __
HON’BLE MR. JUSTICE T. AMARNATH GOUD
HON’BLE MR. JUSTICE BISWAJIT PALIT
J U D G M E N T & O R D E R(ORAL)
[T. Amarnath Goud, J]
Heard Mr. S. Bhattacharjee, learned counsel for the
appellant. Also heard Mr. R. Datta, learned PP appearing for the
State-respondent.
[2] This present appeal is filed under Section 374 of the
Code of Criminal Procedure, 1973 against the judgment of
conviction and order of sentence dated 12.06.2023 passed in
Special (POCSO) 23/2020 by the Special Judge (POCSO), Unakoti
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District, Kailashahar, sentencing the appellant to suffer rigorous
imprisonment for a term of 20 (twenty) years and to pay fine of
Rupees 500/- (five hundred) only. In default of payment of fine, to
suffer simple imprisonment for a further term of 7(seven) days.
[3] The prosecution story in brief is that on 31.08.2020, the
informant-cum-mother of the victim of the instant case went to her
father’s house leaving her daughter with her father in their dwelling
house. Thereafter, the father of her daughter committed rape upon
her on various occasion. The victim, informed the matter to the
locals residing in her neighbourhood. The local people informed her
mother about the incident. Thereafter, the mother of the victim
inquired the matter from her victim-daughter and accordingly, the
victim informed to her mother that in her absence, her father
namely Nanda Malakar has committed rape upon her on various
occasions.
[4] On the basis of written complaint lodged by the
informant against the accused person namely Nanda Malakar, a
case was lodged at Pecharthal PS on 06.09.2020 and the same was
registered as Pecharthal PS, Case No. 2020/PTL/0021, dated
06.09.2020 under sections 376 (AB) of the IPC and under section 6
of the POCSO Act. Thereafter, the case was endorsed to one
Investigating Officer for investigation. Accordingly, IO took up the
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charge of investigation. During investigation, firstly, on 06.09.2020,
the IO recorded the statement of the victim under section 161 of
the Cr.PC by one woman constable namely Dainyamala Debbarma
of Pecharthal PS. Further, on the same day, the IO seized the blood
sample of the victim and has also arranged for the medical
examination of the victim at Kumarghat CHC. During the course of
investigation process, on the same day, the IO also arrested the FIR
named accused person namely Nanda Malakar and on the following
day, he forwarded the said accused person before the court. In the
course of investigation, on the next day, the IO visited the place of
occurrence and prepared a hand sketch map along with separate
indexes. Further, on 07.09.2021, the IO has made arrangement for
the medical examination of the accused at Pecharthal CHC and
subsequently, the report of the said potency test was collected by
him. Again, on the same day the IO has seized the original birth
certificate of the victim, on being produced by the mother of the
victim. Again, during investigation, the IO forwarded the victim to
the court for recording of her statement under section 164(5-A)(a)
of the Cr.PC. Moreover, during the course of investigation, on
20.10.2020, the IO seized one transfer certificate of the victim, on
being handed over by the teacher-in-charge of Khirodcherra High
School.
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[5] On completion of the investigation, the IO submitted
charge-sheet vide Pecharthal PS C/S No.26/2020 dated 31.10.2020
under section 376(AB) of the IPC and under Section 6 of the POCSO
Act, finding prima facie evidence against the accused person namely
Nanda Malakar, appellant herein.
[6] Upon receipt of the aforesaid charge-sheet, cognizance
of the offence punishable under section 376 (AB) of the IPC and
under Section 6 of the POCSO Act was taken by the Court below
against the accused person namely Nanda Malakar. Thereafter, the
accused copies of the incriminating documents were supplied to the
accused person through his engaged counsel in accordance with
law. Thereafter, charges were framed against the accused person
namely Sri Nanda Malakar under section 376 (AB) of the IPC and
under Section 6 of the POCSO Act. Thereafter, the contents of the
charge was read over and explained to the accused person, to
which, he pleaded not guilty and claimed trial. During trial, to prove
the charge levelled against the accused person, prosecution
examined as many as 24 witnesses. The charge levelled against the
accused reads as under:
“Firstly, that you in between 31.08.2020 to 06.09.2020 in
your residential house at Shantipur under Pecharthal PS,
committed the offence of penetrative sexual assault upon your
minor daughter ******, aged about 11 (eleven) years and that
you thereby committed the offence of aggravated penetrative
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sexual assault within the cognizance of this Court and thereby
liable to be punished for offence U/s 6 of POCSO Act.
And I do hereby direct that you be tried on the said
charge.
Secondly, that you on the date, time and place as
mentioned in the aforesaid charge, committed the offence of rape
with the victim ******* aged about 11(eleven) years and that you
thereby committed an offence punishable U/s 376 AB of IPC and
within the cognizance of this Court.
And I do hereby direct that you be tried on the said
charge."
[7] After completion of prosecution evidence, statement of
accused person was recorded under Section 313 of Cr.P.C. The
accused person stated that he is innocent and he has been falsely
implicated in the instant case and that he has not committed the
said offence. During his examination, the said accused person
declined to adduce any defence witness, in his favour.
[8] Learned Court below after taking into consideration the
deposition of the witnesses and upon hearing the rival contention of
the parties, framed the following points for determination:
“(1) Whether the prosecution has proved beyond all reasonable doubt that
the victim on the alleged date and time of occurrence of offence was a
’child’ within the meaning and definition of ’child’ contemplated and
stipulated under section 2(1)(d) of the POCSO Act?
(2) Whether the prosecution has been successfully able to prove the delay
in lodging of the instant case?
(3) Whether the prosecution has been able to prove beyond reasonable
doubt that the accused in between 31.08.2020 to 06.09.2020 in his
dwelling house situated at Shantipur under Pecharthal PS, committed
penetrative sexual assault upon her minor daughter, which is an offence
punishable under section 6 of the POCSO Act?
(4) Whether the prosecution has been able to prove beyond reasonable
doubt that the accused in between 31.08.2020 to 06.09.2020 in his
dwelling house situated at Shantipur under Pecharthal PS, forcefully
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committed rape upon her minor victim girl, aged about 11 years, which is
an offence punishable under Section 376(AB) of the IPC?”
[9] Thereafter, learned Court below on 12.06.2023
sentenced the accused person, appellant herein in the following
manner:
“........O R D E R
16. In the result, the convict namely, Sri Nanda Malakar stands
sentenced to suffer rigorous imprisonment for a term of 20(twenty)
years and to pay fine of Rupees 500/- (Five Hundred) only, in
accordance with the provisions engrafted under section 6 of the
POCSO Act. In default of the payment of fine, the said convict shall suffer
simple imprisonment for a further term of 7(seven) days........”
[10] Aggrieved by the aforesaid sentence by the Court below,
the appellant has preferred this present appeal seeking following
reliefs:
“I. Admit this appeal.
II. Call for the record of case no. Special (POCSO) 23/2020 by
the Special Judge (POCSO), Unakoti District, Kailashahar.
III. After hearing the parties may be pleased allow this appeal
by quashing/setting aside the impugned judgment of conviction
and order of sentence dated 12/06/2023 passed in Special
(POCSO) 23/2020 by the Special Judge (POCSO), Unakoti District,
Kailashahar and may please set the appellant at liberty.........”
[11] Mr. S. Bhattacharjee, learned counsel for the appellant
submits that the learned Court below misread the evidence on
record and came to a wrong conclusion that the appellant is guilty
of the offence. He further contends that the learned Court below
ought to have analyzed the exhibits in its proper perspective. It is
further contended that the birth certificate of the victim exhibit P11
was marked on the basis of the deposition of P.W. 20, the mother of
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the victim. In her cross-examination, P.W. 20 stated that she
cannot say the basis on which the birth certificate of her daughter
was prepared and even the P.W. 22, the Tehsildar, who produced
the birth register also in cross-examination could not say the basis
of which documents, the birth certificate of the victim was issued.
He also submits that the prosecution has failed to produce any
documents to prove that at the time of alleged offence, the victim
was minor. He, therefore, urges this Court to set aside the
impugned order of conviction and order of sentence dated
12.06.2023 passed by the Court below.
[12] Per contra, Mr. R. Datta, learned PP appearing for the
State submits that the birth certificate and the school certificate of
the victim have been duly proved in accordance with law. The
prosecution has successfully adduced both the Transfer Certificate
as well as birth certificate to determine the age of the victim. Apart
from the above, the prosecution has also proved the contents of the
said Transfer Certificate as well as the Birth Certificate of the victim
by calling its authors (i.e. P.W.22, P.W. 23 & P.W. 24) as witnesses
before the Court below to show the reliability of the documents
along with its contents. He further submits that learned Court below
examining all the material evidences on record and observing all the
facts and circumstances of the case, has passed the impugned
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sentence against the appellant herein and the same should not be
interfered with. He, therefore, prays for dismissal of the instant
appeal.
[13] Heard the submissions made at the Bar. Perused the
record.
[14] P.W. 19 is the victim and daughter of the informant.
Being the victim, she deposed that about two years back, one day,
she was sleeping with her father as her mother went to the house of
her maternal uncle. At that time, her father opened her wearing
apparels and committed rape upon her. She disclosed about the
incident to her elder DiDi residing adjacent to her house.
Subsequently, the neibour (DiDi) disclosed the incident to the
persons of the locality of the victim. Thereafter, the neighbours
informed her mother about the incident and she lodged the case
against the accused. It was also deposed by the victim that during
investigation, police seized her birth certificate from the possession
of her mother. She further deposed that during investigation, one
day, she was produced before the Magistrate whereupon, her
statement was recorded on a paper and her signatures were taken
upon it. Further, one day, police made arrangement for her medical
examination at Kumarghat, CHC. It was recorded in the deposition
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of the victim that she identified the accused person when his picture
was shown through the mobile phone display.
In the cross-examination the victim denied that at that
time, her father did not open her wearing apparels and did not
commit rape upon her. It was also denied that in the following
morning, she did not disclose about the incident to her elder Didi
residing adjacent to her house and subsequently, she did not
disclose the incident to the persons of their locality.
[15] P.W. 20 is the informant-cum- mother of the victim. She
deposed that on 25.08.2022, the IO of this case, seized one original
birth certificate of her victim daughter by preparing a seizure list
and took her signature upon it as a possessor of the said birth
certificate. It was recorded in the deposition of P.W. 20 that the
signature of the witness on the aforesaid seizure list dated
25.08.2022 was identified by her and was exhibited earlier. This
was the said birth certificate of the victim which on identification
stands marked as Exhibit- P11.
In the cross-examination she replied in response to a
query that she could not say the basis on which the birth certificate
of her victim-daughter was prepared.
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[16] It is observed that prosecution adduced both the
Transfer Certificate as well as birth certificate to determine the age
of the victim. Prosecution to prove the contents of the said Transfer
Certificate as well as the Birth Certificate of the victim, produced
authors (i.e. P.W.22, P.W. 23 & P.W. 24) as witnesses before the
Court below. The Court below observed that the contents of the
birth certificate as well as transfer certificate were duly proved by
the authors.
[17] In the F.I.R. dated 06.09.2020, the age of the
complainant i.e. the mother of the victim was reflected as 25 years
approximately. It is also seen from the said F.I.R. that the victim
would read in Class-V at that time. The accused person never
disputed the age of the mother of the victim recorded in the F.I.R.
In the Form of Recording Examination of Accused Person under
„ ‟
Section 313(1)(b) of the Criminal Procedure Code, which was
recorded on 06.05.2023, the age of the accused person namely,
Nanda Malakar was reflected as 30 years and if it is assumed to be
true, the age of the accused person was about 28 years at the time
of lodging of the F.I.R. Now, if the age of the mother was 25 years
and the accused father was 28 years, the plea of the accused
appellant herein that the victim was not a minor at the time of
alleged incident, does not hold water.
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[18] P.W. 8, the Doctor deposed that she examined the
victim. The time of commencement of the examination was
06.09.2020 at 11-35 P.M. to 07-09-2020 at 12-08 A.M. As per the
deposition, it was found that there were signs of suggestive forceful
penetration of vagina.
In the cross-examination, she denied that she gave final
opinion without proper examination.
[19] In view of the above discussions, we are of the opinion
that the appellant herein has committed a heinous offence
punishable under Section 6 of the POCSO Act and thus, he is not
entitled to get any relief by way of filing this appeal. There is no
infirmity in the impugned judgment of conviction and order of
sentence dated 12.06.2023 passed in Special (POCSO) 23/2020 by
the learned Court below and accordingly, the same are affirmed.
Thus, the instant appeal is dismissed. As a sequel,
miscellaneous application(s), pending if any, shall also stand closed.
B. PALIT, J T. AMARNATH GOUD, J
Sabyasachi G.
Digitally signed by RAJKUMAR
RAJKUMAR
SUHANJIT SINGHA
SUHANJIT SINGHA Date: 2024.08.02 17:03:07
+05'30'