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IN THE HIGH COURT OF TRIPURA AT AGARTALA
Arindam Lodh, J.
Md. Masuk Ali - Appellants
Vs.
State of Tripura - Respondent
Crl. A.(J) No. 51 of 2016
Decided On : 14-05-2020
POCSO - Sexual Assault - IPC 448, POCSO Act, 2012 - Section 8 - Section 448/354-B of IPC and also under Section 8 of the POCSO Act, 2012 - The court analyzed the evidence and found that the age of the victim girl was not proven beyond reasonable doubt, and the prosecution failed to establish the essential ingredients of Section 8 of the POCSO Act. The court also discussed the applicability of Section 354-A of IPC and imposed a fine of Rs. 10,000 for committing the offence under Section 354-A of IPC.
Fact of the Case:
The victim girl was alone in her rented house when the appellant entered and demanded 'paan'. He then touched her body from behind, and she shouted, causing the appellant to flee. The prosecution charged the appellant under Section 448/354-B of IPC and also under Section 8 of the POCSO Act, 2012.
Finding of the Court:
The court found that the age of the victim girl was not proven beyond reasonable doubt, and the prosecution failed to establish the essential ingredients of Section 8 of the POCSO Act. The court also discussed the applicability of Section 354-A of IPC and imposed a fine of Rs. 10,000 for committing the offence under Section 354-A of IPC.
Issues: The main issue was the age of the victim girl and the applicability of Section 8 of the POCSO Act, 2012.
Ratio Decidendi: The court held that the age of the victim girl was not proven beyond reasonable doubt, and the prosecution failed to establish the essential ingredients of Section 8 of the POCSO Act. The court also discussed the applicability of Section 354-A of IPC and imposed a fine of Rs. 10,000 for committing the offence under Section 354-A of IPC.
Final Decision: The conviction and sentence under Section 8 of the POCSO Act, 2012 were set aside and quashed. The conviction under Section 448 of IPC was upheld, and the sentence was modified to a fine of Rs. 1,000. The appellant was also convicted under Section 354-A of IPC and sentenced to pay a fine of Rs. 10,000.
Key Points: - The appeal challenged conviction under Section 448 IPC and Section 8 POCSO Act for house trespass and sexual assault on a girl [28000026840002][28000026840003]. - Victim's age not proven beyond reasonable doubt as PRTC unreliable and parents silent on age; court noted she was approximately 17 years 8 months at incident [28000026840011][28000026840019][28000026840020]. - Section 8 POCSO requires sexual assault under Section 7, involving touch to specific private parts or similar act with sexual intent; vague "touched body from behind" insufficient [28000026840021][28000026840022]. - Conviction under Section 8 POCSO set aside due to unproven age and lack of essential ingredients [28000026840037]. - Conviction under Section 448 IPC upheld but sentence modified to fine of Rs. 1,000 only [28000026840038] (!) . - Appellant convicted under Section 354-A IPC (sexual harassment via physical contact and advances) using appellate powers under Section 386 CrPC and Section 222 principles, fined Rs. 10,000 [28000026840033][28000026840036][28000026840039] (!) . - Court relied on Jarnail Singh for age proof hierarchy and Tarkeshwar Sahu for convicting minor offences from major charge facts [28000026840018][28000026840024]. - Evidence of victim (PW1) and res gestae witness (PW3) credible for establishing unauthorized entry and touching [28000026840016][28000026840017].
ORDER :
Arindam Lodh, J.
1. Heard Mr. Raju Datta, learned counsel appearing for the appellant. Also heard Mr. S. Ghosh, learned Addl. P.P. appearing for the State-respondent.
2. The present appeal is directed against the judgment and order of conviction dated 10.08.2016 passed by the learned Special Judge, Unakoti Judicial District, Kailashahar, in case No. Special 34 of 2015(POCSO), whereby and where-under the appellant has been sentenced to suffer RI for 6(Six) months under Section 448 of IPC and also RI for 3 (three) years and to pay a fine of Rs. 1,000/- for committing offence punishable under Section 8 of the Protection of Children from Sexual Offences(for short POCSO) Act, 2012 with default stipulations. However, both the sentences shall run concurrently.
3. Briefly stated, the prosecution case is that, on 04.11.2015 at about 11.30 am when the victim was alone in her rented house, one person, namely, Masuk Ali, the appellant herein, had entered into the rented house of the victim to take bamboo from her father and at that time he demanded "paan"(betel-leaf). While she was looking for 'paan' the appellant, Masuk Ali had entered inside the room and touched her body from behind. A case was registered by the Officer-In-Charge of Kailashahar Women Police Station bearing registration No. 29 of 2015 dated 04.11.2015 under Sections 448/354 of IPC. During investigation, the investigating officer recorded the statements of the available witnesses. The statement of the victim girl was also recorded under Section 164(5) of CrPC. The I.O. had seized the Permanent Resident of Tripura Certificate ("PRTC" for short) of the victim to prove the age of the victim girl and subsequently, arrested the accused appellant. After completion of the investigation, the I.O.(PW-7) submitted charge-sheet against the appellant under Section 8 of the POCSO Act, 2012 and also under Sections 448/354-B of IPC.
4. Being committed, charges were framed against the appellant under Sections 448/354-B of IPC and also under Section 8 of the POCSO Act, 2012, and trial was commenced. The prosecution had examined 6(six) witnesses to establish the charges framed by the learned Special Judge, as aforestated.
5. PW -1 is the victim(name withheld). During her evidence, her age was mentioned as 18 years by the Court. She deposed that one day on 04.11.2015 when she was alone in their rented house, the appellant, Masuk Ali had entered into their house to purchase bamboo from her father and at that time, she was insisted to open the door. Accordingly, PW-1 had opened the door. Thereafter, the appellant had demanded 'paan'(betel-leaf) from her and while she was looking for 'paan', the appellant suddenly had touched her body from behind. Out of fear, she shouted and at that time, the appellant had fled away. Hearing hue and cry, one Bani Sinha(PW-3) whom she used to address as 'aunty' came to her room when she narrated the whole story to her. A complaint was lodged by the victim herself. The Officer- In-Charge of Women Police Station recorded her statement on the basis of which an FIR was registered (Exbt. 5). Police had seized her PRTC(Exbt. 4) and her statement was also recorded under Section 164(5) of Cr.P.C.
6. PW -2, Smti. Manchala Sinha, the mother of the victim girl deposed the facts as were narrated to her by her victim-daughter.
7. PW-3, Bani Sinha deposed before the Court that she saw accused Masuk Ali to go out from the house. She further stated that the victim was crying inside the house and told her that Masuk Ali came to their house and suddenly caught hold her from behind with ill motive to outrage her modesty.
8. PW-4, Minati Singh deposed the fact which was narrated to her by the victim-girl.
9. PW -5, Prakash Sinha stated that he heard hue and cry and came to know that Masuk Ali had outraged the modesty of the victim girl.
10. PW-6, Bimal Sinha, the father of the victim girl deposed that after the incident police had seized one PRTC of her daughter by preparing the sei
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