Tripura High Court
Matilal Sarkar vs The State Of Tripura on 15 January, 2025
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
Page 1 of 16
HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
Crl.A(J). No. 42 of 2023
1. Matilal Sarkar, son of Sri Indrajit Sarkar of Fatik Charra Sibir, P.S.
Lefunga, District: West Tripura.
.....Appellant
-V E R S U S-
1. The State of Tripura.
..... Respondent.
_B_E_F_O_R_E_
HON’BLE MR. JUSTICE T. AMARNATH GOUD
HON’BLE MR. JUSTICE BISWAJIT PALIT
For Appellant(s) : Mr. R. Datta, Advocate.
Ms. R. Purkayastha, Advocate.
For Respondent(s) : Mr. R. Datta, Public Prosecutor.
Date of hearing : 07.01.2025
Date of delivery of
Judgment and order : 15.01.2025
Whether fit for reporting : YES
JUDGMENT & ORDER
[T. Amarnath Goud, J]
Heard Ms. R. Purkayastha, learned counsel appearing for the
appellant also heard Mr. R. Datta, learned Public Prosecutor, appearing for the
respondent-State.
[2] This criminal appeal under Section-374 of the Code of
Criminal Procedure, 1973 is directed against the judgment and order of
conviction and sentence dated 19.07.2023 passed by the learned Special
Judge (POCSO), West Tripura, Agartala in connection with case No.
Special (POCSO) 07 of 2022 whereby and whereunder, the appellant was
convicted and sentenced to suffer imprisonment for 3[three] years and fine
of Rs.10,000/- for the offence punishable under Section-366 of IPC in
default to suffer Simple Imprisonment [S.I.] for 2 months. Further, to suffer
imprisonment for three months and fine of Rs.5,000/- for the offence
punishable under Section-342 of IPC and in default to suffer SI for one
month and also to suffer rigorous imprisonment for a period of 20 years and
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to pay a fine of Rs.30,000/- only and in default to suffer RI for 6 months for
the commission of offence punishable under Section-6 of POCSO Act. All
the sentences of imprisonment shall run concurrently.
[3] The prosecution case in brief as reflected from the written
complaint of the informant/brother is that the victim was going to
Fatikcherra High School from her house at that time the accused forcibly
took her inside the tea garden and forcibly committed rape upon her.
Thereafter, the brother-in-law i.e. the husband of the sister of the above
mentioned accused, namely, Ranjit Nama of Lefunga came near the place of
occurrence along with an auto-rickshaw and then with the aid of Jawaharlal
Sarkar, Mohanlal Sarkar and Shyamal Sarkar all are the elder brothers of
accused Matilal Sarkar along with their mother, namely, Smti. Rekha Sarkar
kidnapped the victim and took her to Belonia Hrishyamukh in a house at
Krishnagar. Thereupon, the accused consecutively for two days forcefully
committed rape upon the victim several times.
[4] According to the informant, on 16.11.2021 night police with
the help of local people recovered victim and therefrom, the informant took
the victim in their house. It is also added in the complaint that after
committing rape upon the victim at Fatikcherra Tea Garden, accused also
captured some naked photographs of victim in his mobile and threatened her
with dire consequences to kill her. But in result, the learned Special Judge
(POCSO) sentenced to suffer as stated above.
[5] On the basis of the aforesaid complaint, investigation started.
During investigation the I.O. namely, Dibyajyoti Majumder, SI of police on
19.11.2021, examined the complainant and the witness Biswajit Sarkar and
recorded their statements under Section-161 of Cr.P.C., visited the place of
occurrence and prepared hand sketch map with separate index. Thereafter,
he arranged for recording the statement of the victim under Section-164(5)
Cr.P.C. before the learned Magistrate, examined the victim and the
witnesses and also recorded their statements under Section-161 of Cr.P.C.
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[6] During the course of investigation, on 23.11.2021, the I.O. of
the case seized some articles in connection with this case by preparing a
seizure list and arranged for medical examination of the victim at the
Bamutia CHC. He also received the medical report of the victim on the
same date itself. On 28.11.2021 the I.O. seized the original birth certificate
of the victim girl by preparing a seizure list and further examined the
witness namely, Sailendra Ch. Dey and recorded his statement under
Section-161 of Cr.P.C. Thereafter, on 29.11.20221 I.O. of the case made a
prayer before the learned Court for adding Section-376 of IPC and Section-4
of POCSO Act, which was allowed by the learned Court.
[7] On 02.12.2021 he arrested the accused namely, Matilal Sarkar
and forwarded him before the learned Court on the following day and also
examined the witnesses namely, Promod Sarkar and Smti. Supriti Sarkar
and recorded their statement under Section-161 of Cr.P.C. Further, during
the course of investigation the I.O. made arrangement for medical
examination of the accused and also received the medical examination
report of the accused. Thus, after completion of investigation I.O. laid
charge-sheet vide Lefunga P.S. Case No. 01/22 dated, 09.01.2022 under
Sections-341/366A/506 of IPC and added Section-376 IPC and Section-4 of
the POCSO Act against the accused person namely, Matilal Sarkar as a
prima facie case against the accused person was well established for facing
trial in the open Court of law.
[8] After hearing both sides and on perusal of the documents
submitted by the prosecution, the learned trial Court, framed charges against
the above named accused-persons, the appellants herein, for the offence
punishable under Sections-366/376(3)/342 of IPC and Section-6 of the
POCSO Act, to which the appellants pleaded not guilty and claimed to be
tried.
[9] To substantiate the charge, the prosecution has adduced as
many as 8 witnesses including the complainant and also exhibited certain
relevant documents and materials [Exbts.1 to 9].
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[10] On closure of prosecution evidence, the accused-person was
examined separately under Section-313 of Cr.P.C. for having his response in
respect of the incriminating materials surfaced in the evidence, as adduced
by the prosecution, wherein, the accused-person declined to adduce any
evidence in support of his case. Thereafter, on appreciation of the evidence
and materials on record, the learned Court below by the judgment and order
dated 19.07.2023, convicted the accused-person and sentenced him to suffer
rigorous imprisonment as mentioned above. For the purpose of reference,
the finding as arrived at by the learned Court below may be reproduced
hereunder:
“In this case, the prosecution has successfully discharged the bounded duty of
establishing the fundamental facts against the accused. The accused could not
at all rebut the presumption under Sections-29 and 30 of the POCSO Act and
there is nothing present before the Court from the evidence on record that the
accused has not committed the offence.
Hence, all the points for determination are answered in the affirmative and in
favour of the prosecution.
9(o). Having regard to the discussion as hereinabove, I am of the opinion that
the prosecution has proved the charge punishable under Section-
366/342/376(3) of the IPC and Section-6 of the POCSO Act.
10. Accordingly, the accused Matilal Sarkar stands convicte4d for the offence
punishable under Section-366/342/376(3) of the IPC and Section-6 of the
POCSO Act.
As the Sections prescribe imprisonment up to life, the benefit of the Probation
of Offenders Act cannot be extended to the convict.
Convict is taken into custody.
He will be heard on the question of sentence at 2:45 p.m.”
[11] Being aggrieved by and dis-satisfied with the said judgment
and order of conviction dated 19.07.2023 passed by the learned Court of
Special Judge (POCSO), West Tripura, Agartala in Case No. Special
(POCSO) 07 of 2022, the appellant herein has preferred this appeal before
this Court.
[12] Ms. R. Purkayastha, learned counsel appearing for the appellant
has submitted that the learned trial Court has failed to appreciate the law,
facts, evidence and circumstances and merely on conjectures and surmise
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has convicted the appellant which need to be set aside. The victim girl i.e.
PW-2 deposed that she took birth in Bangladesh yet this fact was not at all
considered by the learned Court below.
[13] The facts elicited in cross examination were not at all
considered by the learned Court below and hence the order of conviction
and sentence is liable to be set aside. PW-6 during her cross examination has
stated that at the time of examination of the victim, she did not find any
injury, pain, discomfort, uneasiness, swelling in the body of the victim
including her private parts and the victim did not make any complaint in
respect of the same.
[14] The material discrepancies between the statements of the
witnesses, yet these facts were not at all considered by the learned Court
below. There is no alleged intention f the accused person that the victim girl
abducted or kidnapped would be compelled to marry any person against her
will which the requirement under Section-366 of IPC. PW-1 has stated
before the I.O. that Subhash Nama, brother-in-law of the accused kidnapped
his aforesaid sister by an auto-rickshaw. Also the crime was not reported as
the earliest opportunity and reason was given illness of the victim which the
learned Court below did not consider this aspect while convicting the
appellant. No investigation was done by the I.O. at Belonia and no evidence
of any police personnel of Belonia Women P.S. has also been recorded by
the I.O. of t his case.
[15] It has been further contended that the learned Court below has
not taken into consideration that there are several latches on that part of the
IO of this case, so far as the investigation conducted by him in the case.
There is no connectivity of events regarding the alleged offence of
kidnapping brought against the accused person. The learned Court below
has not taken the same into consideration and hence, the judgment and order
of conviction and sentence is liable to be quashed.
[16] During arguments, it has been contended that PW-6 i.e. the
Medical Officer has medically examined the victim girl on 23.11.2021 and
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the date of occurrence is 15.11.2021. She raised a contention that PW-6
during her cross-examination has stated that “My report reflecting my final
opinion also uses the expression hymen torn suggesting the fact that any
activity of sexual intercourse may have taken place within a span of 1/2
days.”This, according to her goes to prove that the medical report does not
support the prosecution case.
[17] In support of her case, Ms. Purkayastha, learned counsel for the
appellant has placed her reliance on certain decisions of the Hon‟ble Apex
Court in Rajoo & Others v. State of M.P., reported in AIR 2009 SC 858
wherein, it has been observed that:
“8. The observations in Gurmit Singh’s case were reiterated in Ranjit Hazarika
vs. State of Assam (1998) 8 SCC 635 in the following terms:
“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 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. The inherent
bashfulness of the females and the tendency to conceal outrage of sexual
aggression are factors which the courts should not overlook. The testimony of
the victim in such cases is vital and unless there are compelling reasons which
necessitate looking for corroboration of her statement, the courts should find
no difficulty to act on the testimony of a victim of sexual assault alone to
convict an accused where her testimony inspires confidence and is found to be
reliable. Seeking corroboration of her statement before relying upon the same,
as a rule, in such cases amounts to adding insult to injury. Why should the
evidence of a girl or a woman who complains of rape or sexual molestation be
viewed with doubt, disbelief or suspicion? The court while appreciating the
evidence of a prosecutrix may look for some assurance of her statement to
satisfy its judicial conscience, since she is a witness who is interested in the
outcome of the charge leveled by her, but there is no requirement of law to
insist upon corroboration of her statement to base conviction of an accused.
The evidence of a victim of sexual assault stands almost on a par with the
evidence of an injured witness and to an extent is even more reliable. Just as a
witness who has sustained some injury in the occurrence, which is not found
to be self-inflicted, is considered to be a good witness in the sense that he is
least likely to shield the real culprit, the evidence of a victim of a sexual
offence is entitled to great weight, absence of corroboration notwithstanding.
Corroborative evidence is not an imperative component of judicial credence
in every case of rape. 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. It must not be overlooked that a woman
or a girl subjected to sexual assault is not an accomplice to the crime but is a
Page 7 of 16victim of another person’s lust and it is improper and undesirable to test her
evidence with a certain amount of suspicion, treating her as if she were an
accomplice. Inferences have to be drawn from a given set of facts and
circumstances with realistic diversity and not dead uniformity lest that type of
rigidity in the shape of rule of law is introduced through a new form of
testimonial tyranny making justice a casualty. Courts cannot cling to a fossil
formula and insist upon corroboration even if, taken as a whole, the case
spoken of by the victim of sex crime strikes the judicial mind as probable.
…..This clearly shows that in so far as allegations of rape are concerned, the
evidence of a prosecutrix must be examined as that of an injured witness
whose presence at the spot is probable but it can never be presumed that her
statement should, without exception, be taken as the gospel truth…..”
[18] Another case in Alamelu and another v. State, represented by
Inspector of Police WITH Sekar and another v. State, represented by
Inspector of Police, reported in AIR 2011 SC 715, wherein, the Court has
observed as under:
“We will first take up the issue with regard to the age of the girl. The High
Court has based its conclusion on the transfer certificate, Ex.P16 and the
certificate issued by PW8 Dr. Gunasekaran, Radiologist, Ex.P4 and Ex.P5.
Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl’s date of
birth was 15th June, 1977. Therefore, even according to the aforesaid
certificate, she would be above 16 years of age (16 years 1 month and 16
days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer
certificate has been issued by a Government School and has been duly signed
by the Headmaster. Therefore, it would be admissible in evidence
under Section 35 of the Indian Evidence Act. However, the admissibility of
such a document would be of not much evidentiary value to prove the age of
the girl in the absence of the material on the basis of which the age was
recorded. The date of birth mentioned in the transfer certificate would have no
evidentiary value unless the person, who made the entry or who gave the date
of birth is examined. We may notice here that PW1 was examined in the
Court on 9th August, 1999. In his evidence, he made no reference to the
transfer certificate (Ex.P16). He did not mention her age or date of birth. PW2
was also examined on 9th August, 1999. She had also made no reference
either to her age or to the transfer certificate. It appears from the record that a
petition was filed by the complainant under Section 311 Cr.P.C. seeking
permission to produce the transfer certificate and to recall PW2. This petition
was allowed. She was actually recalled and her examination was continued on
26th April, 2000. The transfer certificate was marked as Ex.P16 at that stage,
i.e., 26th April, 2000. The judgment was delivered on 28th April, 2000. In her
cross-examination, she had merely stated that she had signed on the transfer
certificate, Ex.P16 issued by the School and accordingly her date of birth
noticed as 15th June, 1977. She also stated that the certificate has been signed
by the father as well as the Headmaster. But the Headmaster has not been
examined. Therefore, in our opinion, there was no reliable evidence to
vouchsafe for the truth of the facts stated in the transfer certificate.
Page 8 of 16
Considering the manner in which the facts recorded in a document may be
proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1,
observed as follows:-
The date of birth mentioned in the scholars’ register has no evidentiary value
unless the person who made the entry or who gave the date of birth is
examined…………………………………………………
…………………………………………………………… Merely because the documents
Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of
documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11
and 12 would not tantamount to proof of all the contents or the correctness of
date of birth stated in the documents. Since the truth of the fact, namely, the
date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere
proof of the documents as produced by the aforesaid two witnesses does not
furnish evidence of the truth of the facts or contents of the documents. The
truth or otherwise of the facts in issue, namely, the date of birth of the two
candidates as mentioned in the documents could be proved by admissible
evidence i.e. by the evidence of those persons who could vouchsafe for the
truth of the facts in issue. No evidence of any such kind was produced by the
respondent to prove the truth of the facts, namely, the date of birth of Hukmi
Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as
mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no
probative value and the dates of birth as mentioned therein could not be
accepted.”
[19] Mr. R. Datta, learned Public Prosecutor, appearing for the
respondent-State has submitted that PW-8, the I.O. during his cross-
examination has stated that though he has verified the authenticity of the
birth certificate of the victim girl but he has to mention the said fact in the
charge sheet and the I.O. has also voluntarily stated that he has found the
birth certificate to be genuine. He has further contended that the counsel for
the appellant has not denied the contents of the seizure list dated 28.11.2021
and for that the same cannot be disputed by the counsel for the appellant.
[20] At this juncture, the prosecution stressed the fact that as per
General Rule of Interpretation, if any fact, is not disputed by the adverse
party, then the same shall be deemed to be admitted and hence, in the light
of the above, there is no any iota of doubt, to hold that the victim is a „child‟
within the meaning and sphere of the POCSO Act. If the fact is not denied
by the adverse party, then it shall be deemed to be admitted.
[21] Learned P.P. has argued that the place of birth is not a
parameter of the date of birth of the victim girl. Mere fact that the girl was
born in Bangladesh will not be sufficient to throw out this case, out of the
Page 9 of 16purview of the POCSO Act, which shall be detrimental to the interest of the
victim girl, who is a victim of the lust of the accused person. It has already
been discussed that contents of the birth certificate of the victim girl has got
evidentiary value.
[22] In support of his case, he has placed his reliance on certain
decisions of the Hon‟ble Apex Court in Birbal Nath v. State of Rajasthan
and Others, reported in 2023 SCC Online SC 1396, wherein, the Hon‟ble
Apex Court has observed as under:
“19. Statement given to police during investigation under Section 161 cannot
be read as an “evidence”. It has a limited applicability in a Court of Law as
prescribed under Section 1622 of the Code of Criminal Procedure (Cr.P.C.).
20. No doubt statement given before police during investigation under Section
161 are “previous statements” under Section 145 of the Evidence Act and
therefore can be used to cross examine a witness. But this is only for a limited
purpose, to “contradict” such a witness. Even if the defence is successful in
contradicting a witness, it would not always mean that the contradiction in her
two statements would result in totally discrediting this witness. It is here that
we feel that the learned judges of the High Court have gone wrong.
The contractions in the two statements may or may not be sufficient to
discredit a witness. Section 145 read with Section 155 of the Evidence Act,
have to be carefully applied in a given case. One cannot lose sight of the fact
that PW-2 Rami is an injured eye witness, and being the wife of the deceased
her presence in their agricultural field on the fateful day is natural. Her
statement in her examination in chief gives detail of the incident and the
precise role assigned to each of the assailants. This witness was put to a
lengthy cross examination by the defence. Some discrepancies invariably
occur in such cases when we take into account the fact that this witness is a
woman who resides in a village and is the wife of a farmer who tills his land
and raises crops by his own hands. In other words, they are not big farmers.
The rural setting, the degree of articulation of such a witness in a Court of
Law are relevant considerations while evaluating the credibility of such a
witness. Moreover, the lengthy cross examination of a witness may invariably
result in contradictions. But these contradictions are not always sufficient to
discredit a witness. In Rammi v. State of M.P. (1999) 8 SCC 649, this Court
had held as under:
“24. When an eyewitness is examined at length it is quite possible for him to
make some discrepancies. No true witness can possibly escape from making
some discrepant details. Perhaps an untrue witness who is well tutored can
successfully make his testimony totally non- discrepant. But courts should
bear in mind that it is only when discrepancies in the evidence of a witness are
so incompatible with the credibility of his version that the court is justified in
jettisoning his evidence. But too serious a view to be adopted on mere
variations falling in the narration of an incident (either as between the
evidence of two witnesses or as between two statements of the same witness)
is an unrealistic approach for judicial scrutiny.”
Page 10 of 16
In the same case, how far a contradiction in the two statements can be used to
discredit a witness has also been discussed.
“25. It is a common practice in trial courts to make out contradictions from
the previous statement of a witness for confronting him during cross-
examination. Merely because there is inconsistency in evidence it is not
sufficient to impair the credit of the witness. No doubt Section 155 of the
Evidence Act provides scope for impeaching the credit of a witness by proof
of an inconsistent former statement. But a reading of the section would
indicate that all inconsistent statements are not sufficient to impeach the credit
of the witness. The material portion of the section is extracted below:
“155. Impeaching credit of witness.–The credit of a witness may be
impeached in the following ways by the adverse party, or, with the consent of
the court, by the party who calls him– (1)-(2)*** (3) by proof of former
statements inconsistent with any part of his evidence which is liable to be
contradicted;”
26. A former statement though seemingly inconsistent with the evidence need
not necessarily be sufficient to amount to contradiction. Only such of the
inconsistent statement which is liable to be “contradicted” would affect the
credit of the witness. Section 145 of the Evidence Act also enables the cross-
examiner to use any former statement of the witness, but it cautions that if it is
intended to “contradict” the witness the cross-examiner is enjoined to comply
with the formality prescribed therein. Section 162 of the Code also permits the
cross-examiner to use the previous statement of the witness (recorded
under Section 161 of the Code) for the only limited purpose i.e. to
“contradict” the witness.”
In State of T.N. v. Ravi Alias Nehru, reported in (2006) 10 SCC 534, the
Hon‟ble Apex Court has observed as under:
“6. PW-2, the prosecutrix has stated in examination in chief that she was
studying in UKG and on the fateful day after the school was over she went to
her aunt’s house (father’s sister’s house) at about 2 p.m. On the way the
accused accosted her and took her stating that they would watch TV. She
further stated that there were two other persons watching TV and the accused
took her to another room and made her sit on his lap. The accused then
removed his pant and brief and also removed the prosecutrix’s brief. The
accused pressed his sexual organ on her sexual organ. Then she started
weeping and the other two brothers scolded the accused. The accused then ran
away by putting his pant and shirt. Thereafter, the prosecutrix after putting her
brief went to the house sobbing. She narrated the story to her mother. She also
stated that on seeing her coming sobbing her mother fainted and fell down and
then PW-8 Kamalam and PW-9 Rani received her clothes and drenched them
in water. She further stated that PWs 8 and 9 also washed her sexual organ.
Her statement was well corroborated by PWs 1, 3, 6, 7, 8 and 9.
15. We may also notice the opinion expressed by Modi in Medical
Jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads
thus:
“Thus to constitute the offence of rape it is not necessary that there should be
complete penetration of penis with emission of semen and rupture of hymen.
Partial penetration of the penis within the labia majora or the vulva or
Page 11 of 16pudenda with or without emission of semen or even an attempt at penetration
is quite sufficient for the purpose of the law. It is therefore quite possible to
commit legally the offence of rape without producing any injury to the
genitals or leaving any seminal stains. In such a case the medical officer
should mention the negative facts in his report, but should not give his
opinion that no rape had been committed. Rape, is crime and not a medical
condition. Rape is a legal term and not a diagnosis to be made by the medical
officer treating the victim. The only statement that can be made by the
medical officer is that there is evidence of recent sexual activity. Whether the
rape has occurred or not is a legal conclusion, not a medical one.”
[23] In B.C. Deva alias Dyava v. State of Karnataka, reported in
(2007) 12 SCC 122, the Hon‟ble Apex Court has discussed thus:
“18. The plea that no marks of injuries were found either on the person of the
accused or the person of the prosecutrix, does not lead to any inference that
the accused has not committed forcible sexual intercourse on the prosecutrix.
Though, the report of the Gynaecologist pertaining to the medical
examination of the prosecutrix does not disclose any evidence of sexual
intercourse, yet even in the absence of any corroboration of medical evidence,
the oral testimony of the prosecutrix, which is found to be cogent, reliable,
convincing and trustworthy has to be accepted.
19. Though, the FSL Report marked as Ex.C-1 pertaining to the
undergarments of the accused and the victim did not contain any seminal
stains, yet the said report cannot be given any importance because the
underwear of the accused was taken into possession by the police on the next
day of the incident when he was arrested. There is no evidence brought on
record to show that the accused handed over the same under wear to the
police, which he was wearing on the day of incident or he had handed over
some other underwear which was seized under mahazer (Ex.P-5) by the
police. The possibility of absence of seminal stains on petticoat of the
prosecutrix which she was wearing at the time of the incident, could not be
ruled out due to the fact that the petticoat got drenched in the water and the
seminal stains might have been washed away.”
[24] In view of the above discussions and observations as cited by
both the learned counsel appearing for the parties, this Court is of the
opinion that either in criminal case or civil case, fact remains all through and
the same cannot be supplemented nor there can be two versions of a single
fact. As seen from the evidence of PW-2, the victim girl in her deposition
and the statement recorded under Section-164 of Cr.PC both are coupled
together and extracted for consideration.
“The informant is my brother and I am the victim in the instant case. On
15.11.2021, at about 10/10.30 a.m., while I was proceeding towards my
school, at that time, accused person namely, Matilal Sarkar forcibly
kidnapped me and took me to a nearby jungle and forcibly committed rape
upon me. Thereafter, the accused took me to some other place but, I have no
Page 12 of 16idea about the exact place. On the following day, i.e., 16.11.2021, I boarded a
Commander Jeep and during that time I communicated with my elder brother
who advised the driver of the said vehicle to drop me to the Belonia PS.
Accordingly, my brother also reached the PS and took me back to our home.
After reaching home, I disclosed the aforesaid incident to my brother and
other family members. Accordingly, my brother lodged the instant before the
Lefunga PS. During investigation, one day, I was examined by the police and
thereafter, I was produced before the Magistrate, whereupon, my statement
was recorded on a paper whereupon I have put my signatures. This is the said
signatures on the said statement. On identification, the signatures of the
witness on the statement recorded by the Magistrate, under Section-164(5-
A)(a) of the Cr.P.C stands marked as Exhibit-2/1 series. Also, during
investigation, one day, police made arrangement for my medical examination
to a hospital. Witness duly identified the accused Matilal Sarkar while his
picture was shown to her through a mobile phone display.”
“On 15.11.2021 at about 10.30 am when I was going to my school Fatikcherra
Uchya Bidyalay, a person Motilal Sarkar he came from the back side and
pressed by mouth and dragged me to a forest type land. He then torn open my
school uniform he beat me with his hand. He then pressed both my breasts
and also touched me between the thighs in the female organ. He then clicked
my photographs in his mobile phone [black] in colour. He also raped me by
tying my hands. He then forced me to go with him. He made me were a saree
as I could not do it properly. He assaulted me severely.
He then took me to his relatives place in Belonia. I was in unconscious
condition.
I woke up at 11 pm and found that I was in Belonia. We took food at about 1
am. He forced me to sleep with him or else he would circulate my photos over
social media.
He then opened the saree which I was wearing and inserted his male organ but
is resisted him but he still raped me.
The next morning I called my sister in law, she was busy in phone. I then
called his brother and informed him. Then I went to the main road, he
followed me. Motilal Sarkar then made me set in a car and then I informed the
matter to my sister in law and after talking with the car driver, he dropped me
in Belonia P.S. The statement is recorded in English after interpreting from
Bengali. The statement is read over to the witness after interpretation who
admits to be correctly recorded.”
[25] It is seen from the above that in 164 statements the version she
made that on telephone she called her sister-in-law. This is contradictory
version of the fact. As per the evidence of PW-1, the informant/complainant
he stated that he received phone call from his sister/victim girl and he went
to rescue her. PW-5, sister-in-law of the victim and wife of the PW-1
categorically stated that on receipt of phone call one of the family members
went to rescue the victim girl but in cross, she has given three names i.e.
Page 13 of 16
Bijoy Sarkar, Pramode Sarkar and Biswajit Sarkar. PW-2 deposed that she
first called her sister-in-law PW-5 and as she did not pick up the call, PW-2
called brother of PW-5. Thus, the statement of PW-1 that PW-2 called him
stands disbelieved. A fact is a fact it cannot be changed.
[26] PW-7 who is a neighbor has categorically stated that there was
a land dispute between both the brother i.e. the father of the accused person
and the victim girl and even after the incident; he deposed that the victim
girl went way from house and for that the relevant portion may be extracted
thus: “during the year 2021, in the month of November, one day I came back
from work and came to know from the local people that, the daughter of
Ramjit and the son of Indrajit i.e. Motilal Sarkar have eloped with each
other.”
[27] PW-8 is the witness to the seizure list and birth certificate
issued by the IGM Hospital. As per the evidence of the victim girl, she is
born in Bangladesh and 8 years ago she came to Tripura with her family.
Admittedly, no birth certificate from the Bangladesh is procured and even
the medical certificate which is obtained from IGM Hospital, Agartala, is
not exhibited and the author has also not been examined on the point of
determination of birth certificate and also the age of the victim girl.
Ossification test has not been conducted to determine the age of the victim
girl.
[28] It is only the sole and solitary statement of the victim girl
declaring her age as 15 years none of them have been examined to prove the
age. No document is mentioned. In view of the above discussion, since the
age is not established, it cannot be said that the victim is a minor girl. Now,
it falls for consideration with regard to the issue of rape as has been
committed or not. To establish the committal of rape and for this purpose,
statement of PW-6, Dr. Sanghamitra Dhar is necessary to be extracted:
“On 23.11.2021, the period of examination commenced at about 2.15 p.m.
and was concluded at 2.50 p.m. prior to medical examination, consent for
such medical examination was taken and I have reflected the same in my said
report. After the examination of the victim, aforesaid, finally, I have
Page 14 of 16submitted my report dated 23.11.2021 and in my said report I have opined
that “Based on the above findings, I am of the opinion that, the victim is
having hymen torn which is not so old, this may be suggestive of recent sexual
intercourse”. The report consisting of 5 sheets was prepared by me, in my
own handwriting bearing my signatures upon it. On identification, the report
stands marked as Exhibit-3 and the signatures stands marked as Exhibit-3/1
series, respectively.
In rape cases, if a conviction is based on the sole evidence of a
single witness, even that of the victim herself, such evidence should inspire
confidence in the Court. While the victim’s statement is given a very high
value, the Court must carefully examine the same.
[29] During the course of argument, upon direction of this Court, the
learned P.P has also obtained the report from the I.O. to say about the status
of the parties. Since the crime has taken place on 2021 and it is difficult to
know the status of their marriage since they were relatives, the report has
been placed on record stating that both the father of the victim girl and the
accused person are coldblooded brothers and their children are cousin and
thus, the relationship for marriage cannot be accepted. The victim girl is
already married and she is leading a healthy family life and blessed with a
child. Both the accused person and the victim girl were teenagers and the
accused is languishing in jail an innocent person cannot be penalized. This
Court is not declaring the accused person as innocent but the guilt is not
proved beyond reasonable doubt.
[30] It is evident from the statement of the victim girl that she
accompanied the accused person and she was there with him. Both being
teenagers, it was not possible to believe the version of the victim in absence
of any bodily injury that he forcefully tied her and disrobed her and changed
her school uniform by wearing saree and travelled together from place to
place. In view of such in-consistent versions, this Court is not inclined to
accept the charge leveled under Section-366 of IPC against the accused
person and the same stands set aside.
[31] Evidence of doctor PW-6 who conducted the medical
examination upon the victim girl on 23.11.2021 and opined that hymen torn
Page 15 of 16and the same is fresh and it is just one or two days ago. But it is seen from
the record that the alleged rape has taken place on 15.11.2021 and thus, it is
one week old and no samples collected for analysis and there is no forensic
report as the medical examination was conducted after a week and in the
meanwhile, she had her daily bathe and changing of clothes. Though, the
only witness to the said crime is the victim girl and there is no other witness
examined to say that the victim and the accused person were together in a
room and both were in privacy in a room/house during the date from 15 th to
16th of November, 2021 and the FIR came to be filed on 19.11.2021.
[32] There was no reason when both the accused person and the
victim girl were together from 15th to 16th of November, 2021 and she was
recovered on 16th and complaint was filed on 19.11.2021, medical
examination was conducted on 23.11.2021 but prosecution has not acted
immediately when it is a serious case according to them under POCSO and
rape.
[33] The statement of independent witnesses stating that there were
land dispute and this girl again left the house cannot be brushed and not to
tarnish her conduct but at the same time, in a criminal case it becomes
necessary to examine the veracity of the statement of the victim girl in this
regard. Therefore, the statement of PW-7 has more weight-age than the
evidence of PW-2. So, prosecution has not proved the case beyond
reasonable doubt and accordingly, this Court is of the opinion that the
accused person is entitled for acquittal. For the aforesaid reasons as
discussed above, the judgment and order or conviction of the learned Court
below stands set aside and the accused is acquitted from charges leveled
against him as the prosecution has not proved the case beyond reasonable
doubt. Therefore, this Court is of the opinion that it cannot be treated as
POCSO as the age is not proved. Insofar as rape under Section-376(3) of
IPC is concerned except the statements of PW-2 there is no evidence against
the accused. More so, the statement of the PW-2 is not sufficient to hold
accused as guilty for the reasons indicated above and statement of PW-6
also do not support the case of PW-2.
Page 16 of 16
[34] In that view of the matter, we are of the opinion that the
judgment and order of conviction and sentence passed by the learned Court
of Special Judge (POCSO), West Tripura, Agartala, in connection with case
No. Special(POCSO) 07 of 2022, stands set aside and quashed.
[35] Hence, the instant appeals filed by the accused-person, namely,
Matilal Sarkar, stand allowed and the accused-appellant shall be released
forthwith, if not wanted in connection with any other case. As a sequel,
miscellaneous applications pending, if any, shall stand closed. Send down the
LCRs.
B. PALIT, J T. AMARNATH GOUD, J A.Ghosh