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Shri Kishore Debbarma vs The State Of Tripura on 8 April, 2019

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HIGH COURT OF TRIPURA
AGARTALA
CRL.A. No.30 of 2017

Shri Kishore Debbarma,
son of Shri Sakhi Chandra Debbarma,
resident of Ban Bazaar,
P.O. Ban Bazaar,
P.S. Champahour,
District: Khowai Tripura

—-Appellant(s)
Versus
The State of Tripura,
notice to be served through
the learned Public Prosecutor,
High Court of Tripura,
Agartala, West Tripura

—-Respondent(s)

For Appellant(s) : Mr. J. Bhattacharjee, Adv.

Mr. S. Ghosh, Adv.

For Respondent(s) : Mr. A. Roy Barman, Addl. P.P.

Date of hearing : 29.03.2019

Date of judgment
order : 08.04.2019
Whether fit for
reporting : YES

HON’BLE MR. JUSTICE S. TALAPATRA

Judgment Order

This is an appeal by the convict, hereinafter referred to as

the appellant, from the judgment and order of conviction and

sentence dated 16.09.2017 delivered in Special (POCSO) 27 of

2015 by the Special Judge, Unakoti Judicial District, Kamalpur.

The appellant has been convicted by the said judgment under
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Section 12 of the Protection of Children from Sexual Offences Act,

2012 (in short POCSO Act). Pursuant to the said judgment of

conviction, the appellant has been sentenced to suffer rigorous

imprisonment for three years and to pay a fine of Rs.20,000/-

(twenty thousand) with default stipulation.

02. The prosecution was launched against the appellant in

terms of the complaint dated 05.04.2014, made to the Officer-in-

Charge, Manu police station, Longthorai Valley, Dhalai disclosing

that her daughter (name withheld for protecting her identity) used

to take private tuition from the appellant. About 7-8 months back

from day of filing the complaint when her daughter went to take

tuition, the appellant closed the door from inside became

undressed, asked the victim to touch his penis and to get

undressed. It has been further alleged that he had to sit close to

the victim so that she could hold penis. By the abrupt turn of

events, the victim felt scared and started weeping. Thereafter on

02.04.2018 on Wednesday, the victim again went to his room for

tuition at about 5 p.m. when the appellant repeated the similar

act. As a result, the victim broke out tears and left the place. For

outraging modesty of her daughter, the complaint was filed by the

complainant namely Rama Debbarma. After the incident of

02.04.2018, when the complainant persuaded the victim to go to

take tuition she declined to go for taking tuition. Then, the

complainant in order to send her to take tuition had beaten up her

[the victim]. At that time, the victim divulged what she had faced.
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The victim had also stated to the complainant that she was

warned by the appellant that if she had disclosed the said incident

to anyone, then she would definitely be unsuccessful in the

examination. On the basis of the said complaint, Manu P.S. Case

No.05/2014 under Section 354(A) and 506 of the IPC read with

Section 10/12 of the POCSO Act was registered and taken up for

investigation.

03. On completion of the investigation, the police filed the

final report chargeshetting the appellant. On taking cognizance the

Special Court, Unakoti Judicial District, Kamalpur framed the

charge under Section 354(B) of the IPC and Section 8 of the

POCSO Act. The appellant pleaded innocence and submitted that

the victim had lied and such lie is manifest on the face of the

records. In order to substantiate the charge, the prosecution had

adduced as many as 12 witnesses including the victim [PW-2]. In

addition to oral evidence, the prosecution admitted six

documentary evidence including the birth certificate of the victim

[Exbt.6].

04. To rebut the evidence of the prosecution, the appellant

himself was examined along with two other witnesses [DWs- 1-3].

On recording of the evidence of the prosecution, the appellant was

examined under Section 313 of the Cr.P.C. when the appellant

reiterated his innocence by stating that the incriminating evidence

as surfaced is false and is to frame him without any basis. After

analysing the evidence, the Special Court returned the judgment
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of conviction under Section 12 of the POCSO Act. During imposing

the sentence, the Special Judge, Unakoti District has categorically

observed as under:

“In the case at hand from the prosecution evidence the facts are
proved only that accused showed his penis to the Victim-X and
he also asked her to show her vagina. A careful analysis of the
evidence of Victim-X I am of the opinion that there is absence of
elements of section 354B of IPC and also the elements of section
8 of POCSO Act, 2012. In the prosecution evidence there is no
evidence of using criminal force or assault as define respectively
under section 350 and 351 of IPC. Further, to constitute the
offence under section 8 of the POCSO Act there is necessary
elements of sexual assault as define under section 7 of the said
Act. According to section 7 POCSO Act to constitute sexual
assault there must be evidence that accused with sexual intend
touches the vagina, penis, anus or breast of the child or makes
the child touch the vagina, penis, anus or breast of such person
or any other person, or does any other act with sexual intent
which involves physical contact without penetration. In the case
at hand there is no evidence that accused touches any part of the
body of the victim-X or compelled to touch his any of the organ
as described under section 7 of POCSO Act. So, the facts which
are proved in the instant case does not made out the offence
under section 8 of the POCSO Act.”

05. But on careful perusal of evidence, the Special Court

has observed that the appellant has committed sexual harassment

within the meaning of Section 11 of the POCSO Act. Section 11 of

POCSO Act declares the acts to be held as the sexual harassment.

Section 11 of POCSO Act catalogues the following acts:

“A person is said to commit sexual harassment upon a child
when such person with sexual intent,-

(i) utters any word or makes any sound, or makes any
gesture or exhibits any object or part of body with the
intention that such word or sound shall be heard, or such
gesture or object or part of body shall be seen by the
child; or

(ii) makes a child exhibit his body or any part of his body so
as it is seen by such person or any other person; or

(iii) shows any object to a child in any form or media for
pornographic purposes; or

(iv) repeatedly or constantly follows or watches or contacts a
child either directly or through electronic, digital or any
other means; or

(v) threatens to use, in any form of media, a real or fabricated
depiction through electronic, film or digital or any other
mode, of any part of the body of the child or the
involvement of the child in a sexual act; or

(vi) entices a child for pornographic purposes or gives
gratification therefor.”

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06. According to the Special Court the prosecution has

successfully established the sexual harassment in terms of Section

11 of the POCSO Act which culpable act is punishable under

Section 12 of the said Act. In exercise of the power conferred by

Section 222 of the Cr.P.C. the appellant has been convicted under

Section 12 of the POCSO Act considering the said Act as a minor

offence vis-a-vis the offence as defined under Section 8 of the

POCSO Act. Accordingly, the appellant has been convicted by the

impugned judgment and sentenced to suffer the imprisonment

and fine as stated.

07. Mr. J. Bhattacharjee, learned counsel has quite

emphatically submitted that the age of the victim child has not

been proved following the canons of law. Moreover, the entire

allegation is unfounded inasmuch as there is a huge gap between

two episodes as alleged in the complaint [which has not been

admitted in the evidence]. Even though, the complaint has not

been admitted in the evidence, but the complainant [the

informant] has deposed in the trial by stating that the victim used

to go to take her private tuition to the appellant at about 4 p.m. in

the afternoon. Thereafter she has stated that in the afternoon of

03.04.2014 the victim expressed her extreme reluctance to go to

the appellant for taking her private lessons. On her further query

she started weeping. On her request, the complainant closed the

door. Then, she divulged that sometimes the appellant used to

compel her to molest his penis by her hand. Lastly, he did so on
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02.04.2014. PW-1, Rama Debbarma has stated in the trial that

they waited for substantive time for lodging the complaint in the

police station as they expected the wife of the appellant (namely

Rina Debbarma) would approach her to discuss the matter but she

did not approach and for that reason on 05.04.2014, she lodged

the case in the Manu police station. One Anjati Debbarma wrote

the ejahar. The scribe did not appear in the trial. The complainant

identified her signature on the ejahar [Exbt.1].

In the cross-examination, significantly PW-1 has stated

that there are four rooms divided by partitions in the same

tenament. It was of pucca wall and tin roof. Kangsaram Reang

and Ranibala Debbarma were the tenants in a nearby house. The

appellant had only one room under his possession. Her daughter

was a student of class VIII at the time of incident. Banajit Tripura

and Sourav Chakraborty were taking tuition with the victim. She

had thereafter stated that ‘It is a fact that Banajit and Sourav

used to take private lesson from Kishore in the same batch with

her daughter’. She had voluntarily stated that her daughter used

to go more often than Balajit and Sourav. She has asserted as

follows in her cross-examination:

“I stated in the ejahar as well as before the Magistrate that
Kishore used to compel my daughter to molest his penis by her
hands. It is not a fact that my daughter did not tell me that
Kishore never asked my daughter or compel my daughter to
molest or touch his penis. It is not a fact that I did not wait for
the wife of Kishore to approach me and that is why there was
delay in lodging FIR.”

08. The most vital witness in the array of the prosecution

witnesses is PW-2 [the victim]. She has narrated the first incident.
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The appellant released one boy of class-IX who used to take

private tuition, ahead of her. One day by closing the door the

appellant got undressed by removing gamcha and stated her that

‘it was removed accidentally’. She hid her face behind her book,

out of shame. He inquired with her whether she saw anything but

out of shame she replied in the negative. Now and then, the

appellant used to sit beside her and molest his own penis with a

request to her to show her vagina as he had shown his penis to

her. She refused. One day he touched the upper portion of her

body. He used to threaten for not divulging anything to her

mother, otherwise her mother and her father would die. Initially,

she believed in such talisman. In the first week of April, 2014, on

one afternoon she refused to go to the private tuition. At that time

her mother had insisted her to tell the reason behind her not

going to take private tuition. She stated, in response, the entire

episode. Her father was informed and mother filed the case. In the

cross-examination, she had admitted that the appellant is a

teacher of Machli school whereas she was a student of Manu Girls

H.S. School. She has stated in the trial that she narrated the

episode of ‘un-wearing of gamcha’ to the Magistrate and of her

hiding face behind the book. She has further stated that the

appellant used to sit by her and molested his own penis. She

stated to the Magistrate one day, the appellant touched the upper

portion of her body. She has stated to the Magistrate that the

appellant had threatened her if any episode is leaked out to her
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mother he would make it sure that the victim did not get

promotion to the next class i.e. class-IX. She has denied

suggestion that there was no such act which can be called ‘sexual

harassment’.

09. PW-3, Margin Krishna Tripura has stated that he was

also a tenant of the same hutment with the victim and her

mother. The appellant was the other tenant. He has stated that

wife of the appellant used to go to her parental house off and on.

The victim used to take private tuition from the appellant. In the

afternoon of 4th April, 2014, Rama [the mother of the victim] had

approached her to communicate that on 02.04.2014 or on some

prior occasions, the appellant used to inflict sexual assault and

harassment by showing his penis. He has simply stated that she

advised Rama Debbarma [PW-1] to take shelter of law. He denied

the suggestion that no such sexual assault or harassment did take

place in the house of Safikur Rahaman, the owner of the said

tenement.

10. PW-4, Binapani Debbarma was present when the police

visited the house of the appellant and arrested him. PW-1

informed her that the appellant was a private tutor and he had

shown his penis to her daughter. During that time the husband of

Rama [PW-11] was posted at Dharmanagar. PW-4 has stated

further in her cross-examination that on 02.04.2014 the wife of

the appellant was present in the house. She has stated that she

used to meet Rama Debbarma [PW-1] almost everyday. She
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denied the statement that Rama Debbarma [PW-1] did not tell her

the appellant showed his penis to her daughter.

11. PW-5, Kishore Debbarma has stated that one lady

Police Officer visited their rented house and arrested the co-

tenant, another Kishore Debbarma. PW-1 informed him that

Kishore did ‘nasty things’ to her daughter. Beyond that he did not

state anything.

12. PW-6, Kangsharam Reang has stated that police visited

the rented house of PW-1 and seized one original birth certificate

of the victim and he stood the witness to that seizure and in

acknowledgment thereof he put his signature on the seizure list

[Exbt.4].

13. PW-7, Ranibala Debbarma has stated in the trial that

she was a tenant of nearby hutment. One day one police officer

visited the house of PW-1 and seized one birth certificate of her

daughter. She has witness to such seizure and she has identified

her signature on the seizure list.

14. PW-8, Pankaj Debnath denied any knowledge about the

occurrence. PW-9, Lilabati Rahaman has stated that the appellant

is a school teacher whereas the other Kishore Debbarma is a

Constable of Police.

15. PW-10, Kallol Purakayastha is the Assistant Teacher of

Prikarma Tuisa H.S. School. The appellant is also an Assistant

Teacher in that school. He stated nothing which is relevant in the

context of the case.

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16. PW-11, Madan Debbarma is a Fire Service Personnel.

He visited the hut of Safikur Rahaman where his family used to

reside. His wife, PW-1 informed him that the appellant by

removing his ‘gamcha’ showed his penis to the victim when she

went for tuition and asked her to get undressed. The victim get

scared and hurriedly left the hut of the appellant. On the following

day the victim showed reluctance to go for taking the tuition. The

victim was scolded by PW-1. Under persuasion the victim divulged

that 7-8 months prior to that day, the appellant showed his penis

to the victim and also asked the victim to show her vagina. During

that time, the appellant’s wife was away from home. The victim

was further scared by stating that if she divulged the ‘conduct’ to

anyone the victim will not allow her to get promotion to the next

class or her family would face evil hours. On such revelation, his

wife PW-1 lodged the complaint to the local police station on

05.04.2014 narrating the occurrence what PW-1 had heard from

the victim.

17. According to PW-11 as stated by him in the cross-

examination that the victim was subjected to the sexual

harassment on 02.04.2014 and before that another incident of

sexual harassment occurred 7/8 months prior to that. The

daughter did not state anything to him. But one day his wife [PW-

1] informed him over telephone that in the afternoon of

02.04.2014 the appellant did sexually harass their daughter and

also on previous occassion 7/8 months prior to that day. Even PW-
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1 informed him of the threat posed by the appellant. He denied

the suggestion, contrary to his statement made in the

examination-in-chief.

18. PW-12, Smt. Shiuli Das, is the Investigating Officer

who arranged the examination of the victim under Section 164(5)

of the Cr.P.C. As the investigating officer she had seized the birth

certificate of the victim by preparing a seizure list. However the

original birth certificate was released by the Magistrate on

execution of a bail bond. She has further narrated how she

conducted the investigation by visiting the place of occurrence and

preparing the hand sketch map with index etc. However the

original birth certificate [Exbt.6] was later on reproduced in the

record. PW-12 has stated that having been prima facie satisfied by

the evidentiary materials collected in the investigation she had

filed the chargesheet against the appellant under Section

354A/506 of the IPC along with Section 12 of the POCSO Act. She

has denied that during examination no fact to the effect that

Banajit Tripura and Sourav Chakraborty used to go for private

tuition along with the victim to any private tutor has surfaced. She

has denied that her investigation was perfunctory and the

evidence that she collected is nothing to do with the relevant fact.

She has also asserted in the trial that there was a football

tournament on 24.08.2013 and 26.08.2013 at Manughat class XII

school ground. The investigating Officer has categorically stated

that she did not find any evidence from the witnesses that
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accused touched the private parts of the victim girl. She did not

mention in the case diary or did not ascertain how many days in a

week the victim used to go to accused for taking private tuition.

19. After the prosecution evidence was recorded the

appellant was examined under Section 313 of the Cr.P.C. when he

stated that the evidence, as led by the prosecution, suffered from

falsification. However the appellant examined himself as DW-1. He

has stated that on 04.04.2014 at 10 a.m. the police of Manu

police station called him. He went there and learnt that PW-1 had

filed a case against him. The police arrested him in connection

with the said case. He used to stay in the house of Md. Safikul

Rahaman with his wife Rina Debbarma and his son Rikon

Debbarma whose age at that point of time was only 8 months. He

took rent of one single hut of Md. Safikur Rahaman as he was

posted in Tuikarma Tuisa H.S. School as a Post Graduate Teacher.

He has admitted that he used to give tuition to three students

namely Banajit Tripura, Sourav Chakraborty and the victim.

Banajit and Sourav were the students of class-IX whereas the

victim was the student of class VIII. They used to go to his house

at about 5 to 6.30 p.m. and take the tuition. He has asserted that

he used to give tuition to those students on wearing the formal

dress. According to him, the allegation as brought are unfounded.

20. DW-2, Smt. Rina Debbarma is the wife of the appellant.

She has stated that her husband used to live as the tenant in the

house of Md. Safikur Rahaman. In the same tenement Rama
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Debbarma, mother of the victim girl used to stay. Sourav

Chakraborty, Banajit Tripura and the victim used to take tuition

from her husband. She has stated that Sourav and Banajit told

her that they came to know from the victim that as the appellant

had rebuked her for her less attention she made the allegations to

her mother to avoid tuition from the appellant. In the cross-

examination, nothing material could be derived from this witness.

21. True it is that, Banajit Tripura, DW-3 was examined,

and so was done for obvious reason. DW-3 [Banajit Tripura] has

stated that he along with the victim used to take tuition at about

5.00 hours for one and half an hour. On 04.04.2014 in the

evening he came to know from the police of Manu P.S. that

appellant has been arrested. On 05.04.2014 itself Banajit went to

the house of the victim along with Sourav Chakraborty to ask the

victim why she had leveled such a wild and false allegation against

their teacher. In reply to their question she had told them that the

teacher was very tough and he used to rebuke her and for that

reason, she made the false allegation to her mother to avoid

tuition from him. He has also asserted in the trial that he

communicated the conversation that he had with the victim to the

wife of the appellant [DW-2]. Thereafter all of them meaning

Sourav himself and DW-2 went to the police station and reported

the same to the lady Officer. The Police Officer had stated that if

they were required for any purpose she would call them. But the

police did not call them at any point of time. In the cross-
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examination he denied that he was not taking tuition from the

appellant or that the victim did not tell him that she had brought

the false allegation against the appellant.

22. The statements of PWs 1 and 2 were also recorded

under Section 164 (5) of the Cr.P.C. The statement of the victim

was brought in the evidence as Exbt.3 series. In that statement

PW-2 has categorically stated that one boy used to study with her

in the tuition but the appellant used to ask him to leave.

Thereafter he used to start to exhibit his sexual organ to her and

asked her to show her organ. He used to realise assurance that

she would not reveal anything to anyone. He used to scare her by

stating if she disclosed anything to anyone her parents would die.

23. Mr. Bhattacharjee, learned counsel appearing for the

appellant has submitted that the victim has constructed lie and

such lie is debunked by the evidence led by the prosecution. He

has stated that in the cross-examination, PW-1 has categorically

stated that Banajit and Sourav used to take private tuition from

Kishore in the same batch with her daughter. But the victim has

not accepted that fact, on the contrary she had brushed the story

with more colour. Another aspect Mr. Bhattacharjee, learned

counsel has highlighted is that there was no separate room for

giving the tuition. It is the single room where the appellant used

to give the tuition to the students. Moreover, the room next to the

appellant is the room of the PWs 1 and 2. One witness as noticed
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has stated on the very day of occurrence, the wife of the appellant

was in that hut.

24. From the other side, Mr. A. Roy Barman, learned Addl.

P.P. has forcefully submitted that the prosecution has proved the

case of sexual harassment within the meaning of Section 11 of the

POCSO Act inasmuch as it has been demonstrated by the legal

evidence that the appellant exhibited part of his body with

intention that shall be seen by the victim. According to Mr. Roy

Barman, learned Addl. P.P., no interference is called for in the

impugned judgment.

25. Mr. Bhattacharjee, learned counsel appearing for the

appellant while making his reply to the said submission of Mr. Roy

Barman, learned Addl. P.P. has relied on a decision of the apex

court in Rameshwar vs. State of Rajasthan reported in AIR

1952 SC 54 to contend that the corroboration of the statement of

the victim in such case is essentially required. In Rameshwar

(supra) the apex court has dealt with Section 118 and 157 of the

Evidence Act. As observed, the question of competency is dealt

with in section 118 of the Evidence Act. Every witness is

competent unless the Court considers he is prevented from

understanding the questions put to him, or from giving rational

answers by reason of tender years, extreme old age, disease

whether of body or mind, or any other cause of the same kind. It

is observed that there is always competency in fact unless the

court considers otherwise. No other ground of incompetency is
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given, therefore, unless the Oaths Act adds additional grounds of

incompetency section 118 must prevail. In Rameshwar (supra)

the apex court had occasion to observe as follows:

“I would add however that it is desirable that judges and
magistrates should always record their opinion that the child
understands the duty of speaking the truth and state why they
think that, otherwise the credibility of the wit- ness may be
seriously affected, so much so, that in some cases it may be
necessary to reject the evidence altogether. But whether the
magistrate or judge really was of that opinion can, I think, be
gathered from the circumstances when there is no formal
certificate. In the present case, it is plain that the learned Judge
had the proviso in mind because he certified that the witness
does not understand the nature of an oath and so did not
administer one but despite that went on to take her evidence. It
is also an important fact that the accused, who was represented
by counsel, did not object. Had he raised the point the Judge
would doubtless have made good the omission. I am of opinion
that Mst. Purni was a competent witness and that her evidence is
admissible. In the Privy Council case which I have just cited,
their Lordships said-

“It is not to be supposed that any judge would accept as a
witness a person who he considered was incapable not
only of understanding the nature of an oath but also the
necessity of speaking the truth when examined as a
witness.”

[Emphasis added]

It is to be noted at this juncture that trial Judge did not

followed that procedure of deciding the competence of the girl who

is no doubt is of the 14 years of age. But the oath was

administered to her under the Oaths Act, 1969.

26. The other decision that has been relied by Mr.

Bhattacharjee, learned counsel is titled Radhakrishna Nagesh

vs. State of Andhra Pradesh reported in (2013) 11 SCC 688.

In Radhakrishna Nagesh (supra) the apex court has observed

that while appreciating the evidence of the prosecutrix, the court

must keep in mind that in the context of the values prevailing in

the country, particularly in rural India, it would be unusual for a

woman to come up with a false story of being a victim of sexual
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assault so as to implicate an innocent person. Such a view has

been expressed by the judgment of the apex court in the case

of State of Punjab v. Gurmit Singh reported in (1996) 2 SCC

384 and has found reiteration in Rajinder @ Raju v. State of

H.P. reported in (2009) 16 SCC 69. In Radhakrishna Nagesh

(supra) the apex court has restated the principle of Rajinder’s

case where it was observed that:

“In the context of Indian culture, a woman – victim of sexual
aggression – would rather suffer silently than to falsely implicate
somebody. Any statement of rape is an extremely humiliating
experience for a woman and until she is a victim of sex crime,
she would not blame anyone but the real culprit. While
appreciating the evidence of the prosecutrix, the courts must
always keep in mind that no self-respecting woman would put
her honour at stake by falsely alleging commission of rape on
her and therefore, ordinarily a look for corroboration of her
testimony is unnecessary and uncalled for. But for high
improbability in the prosecution case, the conviction in the case
of sex crime may be based on the sole testimony of the
prosecutrix. It has been rightly said that corroborative evidence
is not an imperative component of judicial credence in every
case of rape nor the absence of injuries on the private parts of
the victim can be construed as evidence of consent.”

[Emphasis added]

27. According to Mr. Bhattacharjee, learned counsel this

report does remotely connect to the present context of the case.

The observation of the apex court is definitely is an observation of

relativity inasmuch as in all circumstances, if there is absence of

evidence, the victim cannot be blindly relied, if court finds that she

had tendency to exaggerate or to state with a purpose.

28. Having scrutinized the records this court finds that the

victim [PW-2] has made three important statements viz. she used

to attend the tuition with one boy of class-IX but she did not

disclose the name of the boy. The victim has stated that the

appellant had threatened that if she did reveal anything to anyone
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she would not be promoted to the next class. But in the statement

recorded under Section 164(5) of the Cr.P.C. such allegation is not

found there so she stated exaggerating thing, in order to lend

credence. On the contrary, there surfaces altogether a different

allegation on cautioning her not to reveal to anyone and if she

revealed her parents would die. Regarding the threat relating to

the promotion is improbable inasmuch as the victim was a student

of class VIII of Manu Girls Higher Secondary School whereas the

appellant was a teacher of Machli school. That apart, the

statement of the victim that one day he touched the upper portion

of her body did not find place either in the complaint filed by PW-1

or in the deposition of PW-1. Even PW-1 has grossly exaggerated

the statement when she has stated in the cross-examination that

she stated in the ejahar and in the statement recorded under

Section 164(5) that the appellant used to compel her daughter to

molest his penis by her hand. Those are unfounded, as revealed

by the investigation officer. The said statement was not available

in the ejahar [Exbt.1] not in her statement recorded under Section

164(5) of the Cr.P.C. Moreover, for 7/8 months if the appellant

was behaving that way it is only expected that the victim would

have told her mother much earlier. In this perspective, this court

finds a serious doubt about the culpable state of mind [see Section

30 of the POCSO Act] from the evidence recorded in the trial. That

apart, the statement of DW-3 which has been corroborated by

DW-2, cannot be brushed aside without giving due value. DW-3,
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the other student has categorically stated that the victim told him

that the appellant was very tough in handling her and she would

avoid tuition from him and that was the reason why she brought

those false allegations against the appellant. In the cross-

examination, the meeting of DW-3 with the victim has not been

challenged.

29. Having all the joints taking together, this court is of the

view that definitely there was a serious furore and PW-1 reacted

to the story told by PW-2. But her one statement in the trial court

stokes doubt. The statement of PW-1 reads as follows:

“I did wait for Rina to approach me for discussion since Kishore
is her husband but she did not approach me as such, on
05.04.2014 I lodged a case with Manu PS.”

But nowhere she has stated the purported allegation

was brought to the notice of DW-2 by PW-1 at any point of time.

Reason therefore as provided in that manner is a reason for the

delay is quite unbelievable. Moreover, DW-2 and DW-3 after

getting the knowledge from the victim about the real reason

behind her conduct had reported what DW-3 had learnt from the

victim to the police officer. But the Police Officer did not examine

them. Their statement might not go along with the prosecution

design. If the statements of PWs 1, 2 and 11 read together those

will be perforated by incongruities. On the other hand, the

appellant has proved absence of culpable state of mind. Hence, no

presumption in this regard be taken against him. It has to be

stated that this court is reluctant to believe the statement of PW-2

that for 7/8 months she suffered the same conduct of the
Page 20 of 20

appellant in the situs of crime. Even that was not allegation in the

complaint. Inconsistencies on the face of the records make the

prosecution case largely incredible to survive the test of

reasonable doubt. The impugned judgment and order is therefore

interfered with and set aside on benefit of doubt. The appellant is

discharged from the criminal liability or acquitted from the charge

under Section 12 of the POCSO Act. As the appellant is on bail, his

sureties are discharged from their respective liabilities.

In the result, this appeal stands allowed.

LCRs be sent down forthwith.

JUDGE

Moumita

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