DHARI KUMAR JAMATIA Vs. STATE OF TRIPURA

JUDGEMENT

(1.) This appeal under Section 374(2) Cr.P.C. is directed against the judgment and order of conviction and sentence dated 19/07/2017 passed in case No. Special (POCSO) 02 of 2016 by the learned Special Judge (Additional Sessions Judge), Kamalpur, North Tripura Judicial district, as it was then, whereby the three(03) appellants, herein, were convicted for offence punishable under Section 376D, IPC and sentenced to RI for Twenty (20) years which is the minimum sentence prescribed for the offence and fine of Rupees Five thousand(Rs.5000/-) payable to the victim with default stipulation and though the appellants were separately charged under Section 6 of the POCSO Act and at the conclusion of trial they were found guilty of the charge, the punishment provided under Section 376D being greater than the punishment provided under Section 6 of the POCSO Act, the learned trial court, keeping in view the provision of Section 42 of the POCSO Act, imposed punishment under Section 376D on the appellants. Appellants 01 and 02 were further convicted for offence punishable under Section 323, IPC and sentenced to RI for three(03) months and it was ordered that the sentences imposed on them would run concurrently.

(2.) The case of the prosecution which led to the conviction and sentence of the appellants emerges out of FIR No. 001 of 2016 which was registered at Raisyabari Police Station in Gandacherra sub-division on the basis of the oral complaint of Sri Sumanta Jamatia(PW1) who appeared at Raisyabari police station on 17/01/2016 at around 08.30 a.m and lodged an oral complaint to the effect that on 16/01/2016, i.e. the day before, at around 06.30 p.m the victim(PW5), who is his younger sister, had gone to the house of Madhulaxmi Jamatia(PW11) in their neighbourhood for bringing one jacket. She was then accompanied by her elder sister Smt. Sima Jamatia(PW3) and her neighbour Smt. Madhulaxmi Jamatia(PW11). On their way back, the three appellants appeared and caught hold of the victim(PW5) and they had forcibly taken her away to the nearby rubber garden where she was gang raped by them. Her sister Smt. Sima Jamatia(PW3) who was accompanying the victim informed her first informant brother (PW1) about the occurrence. The first informant then rushed to the place of occurrence and found his sister lying unconscious at the rubber garden with multiple injuries on her private part. His oral complaint was reduced into writing by the duty officer of the police station and RSB PS case No.2016 RSB 001 under Sections 341, 376D read with Section 34 IPC and Section 4, POCSO Act was registered against the accused appellants and the case was endorsed to SI Jhutan Jamatia(PW19) for investigation.

(3.) The accused appellants were arrested on 17/01/2016 and the victim girl and also the appellants were then subjected to medical examination and on completion of investigation, SI Jhutan Jamatia (PW19) submitted charge sheet against the three accused appellants before the learned Special Judge at Kamalpur for trial. At the trial, the learned Special Judge framed the following charges against the 03(three) accused appellants: