Point of Law: Witness unable to communicate verbally - Applicability of - Proviso of Section 119 of Evidence Act is applicable for witnesses, who cannot speak in language of court or otherwise able and can communicate otherwise than by verbal communication. Thus evidence of victim has found corroboration from prosecution witnesses, particularly evidence of PW9, mother of victim and by evidence of PW2, who saw accused giving biscuit to victim in house of PW25 wherein all of them attended invitation.

JUDGMENT :

Arindam Lodh, J

This criminal appeal is directed against the judgment and order of conviction and sentence dated 16.03.2019, passed by the learned Special Judge, Belonia, South Tripura, in case No. Special 9 (POCSO) of 2016, whereby and whereunder the appellant has been convicted for commission of offence punishable under Sections 451 and 376(2)(i) of IPC as well as under Section 6 of POCSO Act and sentenced him to suffer R.I. for life and also to pay a fine of Rs.5,000/- under Section 6 of the POCSO Act/Section 376(2)(i) of IPC. He has also been sentenced to suffer R.I. for six months under Section 451 of IPC and to pay a fine of Rs.500/-, in default to suffer further RI for seven days. It was directed that both the sentences shall run concurrently.

2. The case of the prosecution, as projected by the learned Special Judge, is reproduced here-in-below:

“On 10.02.2016 at around 2 p.m. the wife of the informant returned to her house from the house of Ranjit Mohan Tripura where she went to attend an invitation along with her victim child, but entering into her dwelling hut she found that the accused Haricharan Munda alias Chuka was cleaning blood from the legs and private parts of the victim girl and the victim was lying on the ground. The mother of the informant then asked the accused, what happened? The accused person replied that he did not know anything. But while the mother of the victim child asked her minor victim daughter then she replied that the accused person brought her from the house of Ranjit Tripura to her room and entered his penis to her vagina. In the meantime the accused person fled away from there. The wife of the informant saw that there was blood stain in the panty of the victim girl and blood was coming out from her private part. Then the mother of the victim called on some neighbours who assembled in the house of the informant and found the victim child bleeding by vagina. The victim was taken to Kalachara hospital and from there she was referred to Sabroom hospital.”

3. Depicting this episode, the informant-father of the victim lodged ejahar with the O/C, Sabroom P.S. which was registered as Sabroom P.S. Case No.8/16, under Sections 451 and 376(2)(i)(j) of IPC and under Section 6 of the POCSO Act.

4. Being endorsed by O/C, S.I. Khokan Saha took up investigation and during investigation the victim and her mother were produced before a Magistrate and their statements under Section 164(5) of CrPC were recorded. The accused-appellant was arrested. The investigating officer recorded the statements of the available witnesses under Section 161 of CrPC, arranged for medical examination of the victim-girl. Blood samples were sent to the State Forensic Science Laboratory. On completion of investigation, the I.O. filed charge-sheet against accused Sri Haricharan Munda alias Chuka for commission of offence punishable under Sections 451 and 376(2)(i)(j) of IPC and Section 6 of POCSO Act.

5. At the commencement of trial, the learned Special Judge had framed charges against the accused-appellant under Section 451 and Section 376(2)(i) of IPC and under Section 6 read with Section 5(m) of Protection of Children from Sexual Offences Act, 2012.

6. In course of trial, prosecution examined as many as 29(twenty nine) witnesses including the victim. Thereupon, the accused person was examined under Section 313(1)(b) of CrPC.

However, the accused pleaded not guilty, but denied to adduce evidence in self defence.

7. Having taken into account the submissions of the learned counsels appearing for the parties and on consideration of the materials on record, the learned Special Judge found the accused guilty of committing the offence and the charges framed against him being proved, convicted and sentenced the accused person as stated here-in-above.

8. Feeling aggrieved and dissatisfied with the judgment of conviction and sentence as afore-stated, the accused person preferred the instant appeal before this Court.

9. We have heard Mr. D