PRANAB DEBBARMA Vs. STATE OF TRIPURA

JUDGEMENT

(1.) This appeal under Section 374(2) of the Cr.P.C. is directed against the judgment of conviction dated 18.07.2018 delivered in Case No.Special (POCSO) 29 of 2015 by the Special Judge, Unokati Judicial District, Kamalpur. The consequential sentence has been challenged as well in this appeal. The appellant was charged under Section 376(2)(1) of the IPC and under Section 4 of the POCSO Act for committing rape and penetrative sexual assault. But the appellant has been convicted under Section 8 of the POCSO Act for commission of sexual assault and sentenced to suffer three years rigorous imprisonment and to pay fine of Rs.5000/- with default stipulation. The detention as suffered by the appellant during the investigation and trial has been directed to be set off from the imprisonment.

(2.) The prosecution against the appellant has been initiated based on the complaint filed by one Bichitra Debbarma [Exbt.7] to the Officer-in-Charge, Salema P.S. informing that her minor daughter [the name is withheld for protecting her identity] on 01.10.2014 at about 1.30 p.m. was alone in their house. When the complainant [PW-15] returned home his minor daughter told him that the appellant forcibly raped her. Based on the said complaint, Salema P.S. Case No.29/2014 under Section 376(2)(1) IPC and Section 6 of POCSO Act, 2012 was registered on the very day when the complaint was lodged i.e. 02.10.2014 and taken up for investigation. Having completed the investigation, the final report was submitted in the Court of the Special Judge, Unokati Judicial District, Kailashahar and the Special Judge framed the charge as stated. The appellant however pleaded innocence and claimed to be tried.

(3.) In order to substantiate the charge as many as 17(seventeen) witnesses including the victim [PW-8], the complainant [PW-15], the victim's mother[PW-9], the forensic experts [PWs-6 and 7] and the Medical Officer[PW-18] who examined the victim immediately after the occurrence were adduced by the prosecution. After recording the prosecution evidence, the appellant was examined under Section 313(1)(b) for having his response as regards the incriminating materials as surfaced in the evidence led by the prosecution. But the appellant denied those materials as false. The appellant denied his involvement with the occurrence. But, the appellant has admitted that he was medically tested. In response to the question No.49, the appellant stated that a false complaint had been lodged against him, out of the enmity emerging from the land dispute. The trial was transferred to the court of the Special Judge, Unokati Judicial District at Kamalpur when the said Court was set up. It is apparent from the records such transfer was made after the charge was framed. Having appreciated the evidence of the prosecution, as the defence did not introduce any evidence, the Special Judge returned the finding of conviction having observed that two witnesses who according to PW-8 had witnessed a part of the transaction of crime were held back by the prosecution, but there is nothing in the cross examination of the victim and her parents to show that they had any reason for implicating the appellant in false case. It is true that the medical evidence including the forensic evidence did not support the case of rape or penetrative sexual assault, but it is clear from the evidence of the victim that the accused had sexually harassed her which act falls within the meaning of "sexual assault" as defined under Section 7 of the POCSO Act. Section 7 of the POCSO Act provides that whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child to touch the vagina, penis, anus or breast of such person or any other person, or does any other acts with sexual intent which involve physical contact without penetration, is said to commit sexual assault. That apart, when the appellant is prosecuted for committing or abetting or attempting to commit any offence as defined under Sections 3, 5, 7 and 9 of the POCSO Act. The Special Court shall under Section 29 of the POCSO Act presume that such person committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.