NANDA LAL BANIK Vs. STATE OF TRIPURA

JUDGEMENT

(1.) THIS petition under section 397 of the Code of Criminal Procedure is directed against the judgment dated 29 -03 -2010 passed by the learned Additional Sessions Judge, Belonia, South Tripura in Criminal Appeal No. 03 of 2010 whereby he dismissed the appeal filed by the petitioner and upheld the judgment dated 06 -02 -2010 passed by the learned Judicial Magistrate 1st Class, Belonia, South Tripura in G.R. 362 of 2007 convicting the accused of having committed offences punishable under sections 448 and 354 of the Indian Penal Code(IPC). The accused was sentenced to undergo rigorous imprisonment for 3 (three) months and also to pay fine of Rs. 500/ -(rupees five hundred) in respect of each of the offences and in default of payment of fine to undergo simple imprisonment for one month. Both the sentences were to run concurrently.

(2.) NORMALLY , this Court in exercise of its revisional jurisdiction is very reluctant to interfere in pure findings of fact recorded by the Courts below but in a case where the conviction is based on no evidence or total misreading of evidence, then this Court would be abdicating its functions if it did not interfere.

(3.) AS far as the child (PW -3) is concerned, I am indeed shocked and surprised to note that this 7 year old child was examined in Court and the Magistrate did not deem it fit or proper to ask some simple questions from the child to test whether the child could understand what the child was saying. The intelligence of a child witness has to be gauged by first testing the child's intelligence by putting some simple questions to her. In any event, this witness has only stated that she saw Nandu uncle (accused) having caught hold of the mother and gagged her and then she asked Nandu uncle to leave the house and he left. In her statement, there is nothing to show that the blouse was torn or any other such occurrence took place. No evidence can be placed on the statement of this child witness.