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2016 Supreme(Tri) 202
IN THE HIGH COURT OF TRIPURA, AGARTALA
S. TALAPATRA, J.
Sri. Nakul Sharma, son of late Rajyeswar Sharma – Appellant
Vs.
The State of Tripura – Respondent
CRL. A(J) NO. 29 OF 2016
Decided On : 02-08-2016
For the Appellant :Mr. H. Debnath, Advocate
For the Respondent: Mr. A. Ghosh, P.P.
The central legal point established in the judgment is the importance of proving the age of the victim as a prerequisite for the offence under the POCSO Act, and the requirement for reliable evidence to establish the age of the victim.
Headnote:
POCSO - Conviction under Section 8 of the Protection of Children from Sexual Offences Act, 2012 - [Section 8 of POCSO Act, 2012] - The court discussed the insufficiency of evidence to prove the age of the victim, the legal provisions under the POCSO Act, and the interpretation of the definition of 'child' under Section 2(d) of the Act. The court also referenced the decision of the apex court in Alamelu and Another vs. State, Represented by Inspector of Police, and highlighted the importance of reliable evidence to establish the age of the victim.
Fact of the Case:
The appellant was convicted under Section 8 of the Protection of Children from Sexual Offences Act, 2012 based on an incident where he allegedly attempted to disrobe a minor. The appellant challenged the judgment citing insufficient evidence to prove the age of the victim.
Finding of the Court:
The court found that the evidence presented by the prosecution to ascertain the age of the victim was insufficient and did not establish confidence to rely on. The court emphasized the importance of proving the victim's age as a prerequisite for the offence under the POCSO Act.
Issues: The key issue revolved around the insufficiency of evidence to prove the age of the victim, which was crucial for the conviction under Section 8 of the POCSO Act.
Ratio Decidendi: The court's decision was influenced by the insufficiency of evidence to establish the age of the victim, as required by the POCSO Act. The court referenced the legal provisions and the interpretation of the definition of 'child' under Section 2(d) of the Act, emphasizing the need for reliable evidence.
Final Decision: The appellant's conviction under Section 8 of the POCSO Act was set aside, but the court found sufficient material to convict the appellant under Section 354 of the IPC. The appellant was sentenced to 6 months rigorous imprisonment and a fine of Rs.5,000.
Heard Mr. H. Debnath, learned counsel appearing for the appellant as well as Mr. A. Ghosh, learned P.P. for the state.
2. By means of this appeal filed under Section 374(2) of the Cr.P.C., the judgment of conviction and order of sentence dated 30.04.2016 passed by the Special Judge, North Tripura, Dharmanagar in Special (POCSO) 04 of 2015, convicting the appellant under Section 8 of the Protection of Children from Sexual Offences Act, 2012 and sentencing him to suffer rigorous imprisonment for 5(five) years and to pay a fine of Rs.10,000/-(ten thousand), in default, to suffer further rigorous imprisonment for 6(six) months, has been challenged.
3. Based on the written ejahar filed by one Sri Sukumar Malakar (PW-2) disclosing that when the victim [her name is withheld for protecting the identity] visited the house of the appellant on 29.01.2015 at about 10 O’clock in the morning, the appellant called her inside, laid her back on his bed and tried to disrobe her with ill motive by using force. At that time, one Nirmal Mallik called the appellant from outside the door as the door was bolted from inside. When the appellant opened the door, somehow the victim managed to escape from that room.
4. On the basis of the said written ejahar, Panisagar P.S. Case No. PNS 006/2015 under Section 354 was registered. After investigation, the charge-sheet was filed under Section 8 of the Protection of Children from Sexual Offences Act, 2012 [POCSO Act in short] and under Section 354 of the IPC. When the charge was read to the appellant, he denied the charge and claimed innocence to face the trial.
5. To substantiate the charge, the prosecution adduced as many as 8(eight) witnesses and admitted 4(four) documentary evidence including the written ejahar (Exbt.-1), statement of the victim as recorded under Section 164(5) of the Cr.P.C. (Exbt.-7) etc. After recording the evidence, the appellant was examined under Section 313 of the Cr.P.C when the appellant repeated his plea of innocence. But the appellant did not adduce any evidence at all. Thereafter, on appreciating the evidence on record, the Special Judge delivered the impugned judgment convicting the appellant under Section 8 of the POCSO Act, 2012 and the appellant has been sentenced as stated.
6. Mr. H. Debnath, learned counsel appearing for the appellant has submitted that the evidence in respect of the age of the victim is so inadequate and insufficient that this court would be reluctant to hold that the victim was below the age of 18(eighteen) years. He has urged this court to revisit the evidence on record. By aid of PW-8, Smt. Smiriti Debnath, one certificate dated 03.01.2003 from the Anganwadi Center was introduced in the evidence and admitted as Exbt.-8. According to Mr. Debnath, this is the basis of determining the age of the victim. Mr. Debnath, learned counsel has urged this court that the testimony of PW-8 is not at all reliable, inasmuch as, PW-8 has stated in the examination-in-chief that the victim was admitted in the Anganwadi Center, Jalabassa Barabari Rongomoyee Anganwadi Center, Panisagar, North Tripura on 03.01.2003. PW-8 has further stated in her examination-in-chief that the name of the victim was entered in the register of the Anganwadi Center on 03.01.2003. Even in the cross-examination, PW-8 has stated that, he did not know whether the said certificate (Exbt.-8) is related to the victim or not. Mr. Debnath, has thus stated that such witness cannot be believed by any court. Even though it has been claimed that the original register of the Anganwadi center was brought by PW-8, but neither the said register nor any page thereof had been admitted in the evidence by marking the same nor there is any statement disclosing the source of the birth of the victim. Mr. Debnath, learned counsel has urged this court not to believe those evidence inasmuch such evidence cannot be relied on in view of the decision of the apex court in Alamelu and Another vs. State, Repres
