Page 1 of 19

HIGH COURT OF TRIPURA

AGARTALA

CRL.A(J) NO.47 OF 2019

Sri Narayan Debnath

S/O- Sri Nibaran Debnath
Vill- Kenania, P.S- Madhupur,
District- Sepahijala
..........Appellant

Versus

The State of Tripura

.........Respondent.

HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI

HON’BLE MR. JUSTICE ARINDAM LODH

For the Appellant : Mr. R.G. Chakraborty, Advocate

Ms. S. Chakraborty, Advocate

For the Respondent : Mr. S. Ghosh, Addl. P.P.

Date of hearing : 17.06.2020

Date of delivery of
Judgment & Order : 07.07.2020
Whether fit for reporting : YES/NO

J UDGEMENT& O RDER

(Arindam Lodh, J)

In impugnment, is the judgement and order of

conviction and sentence dated 27.06.2019 respectively, passed by

the learned Special Judge(POCSO), Sepahijala Judicial District,

Bishalgarh, in case No. Special POCSO 10 of 2016, whereby and

whereunder the appellant has been convicted under Section

 Page 2 of 19

376(2)(i) of IPC and Section 4 of the POCSO Act, and sentenced

him to suffer RI for 10 years and to pay a fine of Rs.10,000/-, in

default of payment of fine to suffer further imprisonment of 6(six)

months, and further sentenced him to suffer RI for 10 years under

Section 4 of the POCSO Act and to pay a fine of Rs.10,000/-, in

default of payment of fine to undergo further imprisonment for

6(six) months. It was directed that both the sentences shall run

concurrently.

2. The prosecution case, in a nutshell, is that on

07.12.2015, at about 6 a.m., the victim girl(here in after referred

to as “victim” or “girl”, according to the context) who was aged

about 8 years and was a student of class-II, was waiting for the

vehicle near the shop of the accused, Narayan Debnath at Kenania

to go to her school, and at that time she went to the shop of the

convict-appellant to purchase chips. The convict-appellant on

seeing the victim called her inside his shop and made her to sit on

his lap, and thereafter, he put his hand into her vagina. At that

time, some people reached near the shop of the convict-appellant

and the convict-appellant allowed the victim to leave his shop. On

that night, the victim-prosecutrix disclosed the incident to her

mother namely, Chinta Rani Debbarma. On the next day, the

informant, Radha Charan Debbarma, who is the father of the

 Page 3 of 19

victim girl, lodged a complaint with the Bishalgarh Women Police

Station about the incident.

3. On receipt of the complaint, the Officer-In-Charge of

the Bishalgarh Women Police Station registered Case No.2015

BLGW 40 of 2015 dated 08.12.2015 under Section 376(2)(i) of IPC

and under Section 4 of the POCSO Act.

4. Being endorsed, the investigating officer took up the

case for investigation, recorded the statements of the material

witnesses under Section 161 of Cr.P.C, arranged for medical

examination of the victim-girl, and also the investigating officer

had ensured recording of statements of the victim-girl(PW2) and

Smt. Chinta Rani Debbarma(PW3) under Section 164(5) of the

Cr.P.C, and accordingly, the learned Judicial Magistrate First Class

had recorded the statements of the victim-girl(PW2) as well as

Smt. Chinta Rani Debbarma(PW3) under Section 164(5) of Cr.P.C.

The investigating officer also seized the school certificate of the

victim and visited the place of occurrence accompanied by the

victim and her parents and prepared the hand-sketch map.

5. After completion of the investigation, the investigating

officer submitted the charge-sheet against the accused-appellant

and the learned Special Judge after taking cognizance had framed

the following charges:-

 Page 4 of 19

“Firstly, that you on 07.12.2015 at about 6.00

A.M at South Kenania inside your shop at Kamalasagar
under Bishalgarh PS committed rape upon xxxxx(name
kept withheld) who was 8 years old at that time and
thereby committed an offence punishable under section
376(2)(i) of the IPC and within the cognizance of this
Special Court.

Secondly, that on the same date, time and place

you committed penetrative sexual assault upon xxxx
(name kept withheld), and thereby committed an offence
punishable under section 4 of the POCSO Act, 2012, and
within the cognizance of this special court.”

6. During trial, the prosecution examined as many as 10

witnesses. On completion of recording of evidence, the accused

was examined under Section 313 of Cr.P.C, to which he strongly

denied the allegations brought against him by the prosecution and

claimed to be tried.

7. The learned Special Judge(POCSO) took up the

following points for discussions and decision:

“(i) Whether on 07.12.15 at about 6 a.m. at south

Kenania accused Narayan Debnath committed rape on
the victim girl who was aged about 8 years?

(ii) Whether on the same date, time, and place accused

committed penetrating sexual assault upon the victim
girl.”
 Page 5 of 19

8. After hearing the arguments of both sides and on going

through the evidences and materials available on record, the

learned Special Judge found the accused-appellant guilty of

committing offence and, accordingly, convicted and sentenced him

as afore-stated.

9. Being aggrieved by and dissatisfied with the said

judgment and order of conviction and sentence, the accused

appellant has preferred the instant appeal before this Court.

10. Mr. Chakraborty, learned counsel appearing for the

convict-appellant has strongly argued that the presence and

participation of the accused in the commission of the alleged

offence is absolutely doubtful and on the basis of such evidence the

appellant could not be convicted. The learned counsel further

argued that there was no eyewitness of the alleged incident,

except the girl (PW 2) herself, who has only deposed in course of

trial that the accused took her on his lap and put his hand on her

private part. Nowhere the victim stated that the accused-appellant

penetrated finger or hand in the private part of the victim.

Learned counsel for the appellant further argued that

the Medical Officer, Dr. Rajib Karmakar(PW9), who examined the

victim, had categorically stated that there was no external injury

detected on the body of the victim, but, the hymen was torn, bleed
 Page 6 of 19

and tender on touch and there was evidence of vaginal

penetration. However, two specimen of vaginal swab was taken

but, the prosecution had failed to produce any forensic report in

this regard. He further argued that if the victim had suffered

injuries on her private parts due to sexual assault, she would have

felt pain and there must be bleeding, but, during the whole day,

she did not state to anyone about any pain or bleeding. Learned

counsel further argued that the entire story of rape is false and the

appellant is the victim of family rivalry for purchasing goods on

credit and no such incident took place at all.

11. Per contra, Mr. Ghosh, learned Addl. PP. relying on the

testimony of the victim-girl and P.W.3, the mother of the victim-

girl and also on the basis of the evidence of the P.W.9, i.e., Dr.

Rajib Karmakar, argued that prosecution has been able to prove

the charge levelled against the appellant. Learned Addl. P.P.

further argued that the prosecution has proved the case beyond

any shadow of doubt, and the learned Special Judge has not

committed any error in convicting the accused-appellant as stated

above.

12. In view of the aforesaid submissions of the learned

counsels appearing for the parties, we have perused the

 Page 7 of 19

evidence and materials on record decide the sustainability of

the conviction imposed by the trial court upon the appellant.

13. PW1, Sri Radhacharan Debbarma, in his deposition

stated that the victim was his younger daughter and she was 8

years old. On 07.12.2015 during night time, his daughter, while

going to sleep divulged to his wife that on that day while she went

to the shop of Narayan Debnath for purchasing chips on her way to

school, the accused-appellant, Narayan called her daughter inside

his shop and made her sit on his lap and put his hand into her

vagina. After that she went to school and attended her private

tutor. PW1 further stated that he discussed the incident with some

of the village people, namely, Mallika Debbarma, Krishna Bhowmik,

Narayan Chandra Choudhury and on the following day PW1 lodged

ejahar against accused Narayan Debnath.

In his cross-examination PW1 stated that he did not

state to the I.O. that on the night of occurrence he did not go to

the house of Krishnapada Bhowmik, Mallika Debbarma and

Narayan Choudhury to discuss to matter. All the suggestive

questions put by the defence lawyer has been denied by the PW1.

14. PW2, the victim in her deposition stated that few

months back, on her way to school, she went to the shop of Naru

kaka to purchase a packet of chips and Naru kaka took her on his
 Page 8 of 19

lap and put his hand on her private parts. Thereafter, she went to

school. PW2 further stated that she narrated the whole incident to

her mother. Thereafter, a case was lodged and she was produced

before a Magistrate at Bishalgarh and further she was produced

before a Doctor.

In her cross-examination PW2 deposed that she usually

used to go to the bus stand at 6 a.m. for going to her school. On

the date of the incident she reached home at around 10.30 a.m.

After that her mother used to take care of her throughout the day.

PW2 further stated that the accused cannot speak kokborok

language. However, she denied the suggestion that the accused

appellant did not outrage her modesty on that date and time.

15. PW3, Smt. Chinta Rani Debbarma is the mother of the

victim-girl and in her deposition she stated that on 07.12.2015 the

victim on way to her school went to the shop of the accused and

the accused took her on his lap and put his hand on her vagina.

PW3 further deposed that the victim divulged the fact at night

while she was going to sleep. After that she informed the matter to

her husband. PW3 further deposed that her husband on that night

approached Narayan Choudhury, a local leader. On the following

day, her husband lodged a case and her statement was recorded

by a Magistrate at Bishalgarh.
 Page 9 of 19

In her cross-examination, PW3 stated that she used to

purchase household articles from the shop of accused-appellant,

Narayan on credit. PW3 denied the suggestion that prior to lodging

the case, the accused-appellant refused to sell any article to her on

credit and to take the revenge she manufactured a false case

against Narayan i.e. the accused.

16. PW5 Sri Rabindra Debbarma in his deposition stated

that on 07.12.2015 during night time, Radhacharan Debbarma

informed him that while the victim went to the shop of Narayan

Debnath for purchasing a packet of chips, the accused offered two

chocolates to the victim-girl and put his hand on the private part of

the victim. PW5 further deposed that on the following day he

inquired the victim and she told him that when she went to the

shop of Narayan Debnath for purchasing chips, Narayan put his

hand on her vagina.

In his cross-examination he deposed that he stated to

the I.O that in the night of 07.12.2015 Radhacharan called him and

narrated the whole incident that when the victim went to the shop

of the accused, the accused put his hand in the vagina of the

victim.

17. PW6, Jumeli Debbarma in her deposition stated that

on 08.12.2015 she was posted in Bishaighar as JM 1st Class, and

 Page 10 of 19

she recorded the statement of Chinta Rani Debbarma(PW3). PW6

further deposed that the PW 3, the mother of the victim girl on

oath stated that on the previous day in the morning her daughter,

while proceeding towards her school, went to the shop of the

accused for purchasing chips and the accused took her daughter

inside the shop and on alluring to give a chocolate made her to sit

on his lap and thereafter touched her vagina. At night, the victim

told her about the incident.

PW6 further stated that she also recorded the

statement of the victim-girl. The victim was 8 years old and PW6

put her three questions, i.e. about her school, the colour of sun

and about her brother and sister, which she answered correctly

and she certified her to be a competent witness. PW6 stated that

the victim stated that while she went to the shop of the accused,

he took her inside the shop and gave her chocolate and made her

to sit on his lap and touched her vagina. Thereafter, on hearing

that some people were coming, the accused had left her.

In her cross-examination, PW6 stated that she did not

mention in the statements of both the witnesses that except

Kokborok language they were not proficient in any other language

although they gave statements in Kokborok language which she

herself interpreted and recorded in English.

 Page 11 of 19

18. PW8, Shri Haradhan Nama deposed that he had a

sweet shop at Kanania Bazar and besides his shop there was the

grocery shop of accused-Narayan. He further deposed that about

one year back one day when he was in his shop he heard from the

local people of the market that Narayan Debnath ill behaved with a

minor tribal girl in his shop. PW8 identified the accused in the dock.

In his cross-examination, he stated that the time of

movement of the student is at about 7.10 a.m. to 7.15 a.m. PW8

further deposed in cross-examination that some shop owners used

to open the shop in the early morning and the vendors also used to

come in the market in the morning time prior to 7.00 a.m. and he

used to open his market at about 6.00/6.30 a.m.

19. PW9, Dr. Rajib Karmakar, in his deposition stated that

on 08.12.2015 he was posted as medical officer on deputation at

Bishalgarh Sub-Divisional Hospital. On that day he examined the

victim girl, aged about 8 years in connection with Bishalgarh

Women P.S. Case No.40/15 as the victim was produced by a

women constable. PW9 further deposed that in the report he

opined that there was evidence of recent vaginal penetration. PW9

also deposed that in the report he also mentioned that “In the

private parts there was redness and swelling on vulva region and

the hymen found torn on superior margin, bleed and tender on

 Page 12 of 19

touch”. PW9, further deposed that “The age of torn was 1/2 days

fresh”.

In his cross-examination, PW9 stated that according to

the dental surgeon the age of the victim is above 6 years and the

private parts of a girl of 6 to 8 years shall have delicate and tender

in nature. He further revealed that the victim girl was not in a

normal condition. PW9 further deposed that the victim girl must

have suffered pain on her private parts just after the occurrence

and while clarifying physical condition of the victim the doctor

stated that the gait of the victim was not normal.

20. PW10, Smti. Shipra Das, in her deposition stated that

after receipt of the complaint the Officer-In-Charge of the

Bishalgarh Women Police Station registered a case under Section

376(2)(i) of IPC and under Section 4 of the POCSO Act. Being

endorsed PW10 took up the investigation, recorded the statements

of the victim and also examined the parents of the victim. PW10

further deposed that she visited the place of occurrence

accompanied by the victim and her parents. PW10 also prepared

the hand-sketch map, also seized the birth certificate of the victim-

girl. PW10 further deposed that she arranged for medical

examination of the victim-girl and the potency test of the accused

by medical officer. She also ensured the recording of the

statements of the victim-girl under section 164(5) of Cr.P.C as well

 Page 13 of 19

as PW3, and accordingly, the learned Judicial Magistrate 1st Class

had recorded the statements of the victim and her mother.

In her cross-examination, PW10 deposed that a women

constable, namely Smt. N. Suganthi Devan was an expert in

Kokborok language and also acted as an interpreter, but, the PW10

in the case dairy did not mention any note in regard to the

examination of the women constable. PW10 further deposed that

PW5 did not state in his 161 statement that in the night of

07.12.15, Radhacharan Debbarma informed her about the incident.

21. This Court has meticulously scrutinised the testimonies

of the victim girl (PW2) as well as Smt. Chinta Rani Debbarma

(PW3) and also the medical report of the victim (Exbt. 7/1) along

with other evidences. From the evidence of P.W 2, the prosecutrix,

it is found she had categorically stated that she went to the shop of

the accused to purchase a packet of chips, when the accused-

appellant made her to sit on his lap and thereafter put his hand on

her private parts. The testimony of the prosecutrix could not be

shaken during cross-examination. Further, the statement of the

victim girl is found to be consistent to her statement recorded

under Section 164(5) Cr.P.C. before the Magistrate. It is extremely

difficult for us to consume that a girl of 8 years would fabricate

such a story, against the appellant. According to PW 2, she went to

the shop of the accused. It is not the case of the appellant that no
 Page 14 of 19

such shop was there in the locality at that time. There is no

material on record to show that this part of her deposition is

incorrect. Therefore, the testimony of the girl remains totally un-

impeached during examination and that by itself is sufficient to

prove the guilt attributed to the appellant.

22. PW3, Smt. Chinta Rani Debbarma also corroborated

the version of the victim-girl that on her way to school the accused

appellant offered two chocolates to the victim and made her to sit

on his lap and put his hand on her vagina. Though PW3 is not an

eyewitness, but, she is the first person to whom the girl divulged

the whole incident as she is the mother of the victim and this

circumstance is most natural. Further, this circumstance leads us

to accept the statements of the victim girl with more credence. The

victim was a girl of eight years at the time of incident who was not

supposed to understand the motive and action of the accused

person, who is a grown up man and because of this she did not tell

the incident to any other person except her mother.

23. The defence has tried to build a case that the

appellant, he has been falsely implicated in this case because he

had a quarrel with the mother of the victim, though there is no

credible evidence to prove it. It is inconceivable that a mother

would implicate a person with whom she had minor dispute on

 Page 15 of 19

purchase of household items on credit, in a case of this nature and

that too at that cost of staking the future welfare of her own 8

years old daughter.

24. In the case of State of Rajasthan vs. Biram Lal,

reported in AIR 2005 SC 2327, the Apex court held that if the

sole testimony of the prosecutrix is free from blemish and implicitly

reliable, then a conviction can be recorded on that basis. It was

observed as follows:

“It is not the law that in every case version of the

prosecutrix must be corroborated in material
particulars by independent evidence on record. It all
depends on the quality of the evidence of the
prosecutrix. If the court is satisfied that the evidence of
the prosecutrix is free from blemish and is implicitly
reliable, then on the sole testimony of the prosecutrix,
the conviction can be recorded. In appropriate cases,
the court may look for corroboration from independent
source or from the circumstances of the case before
recording an order of conviction.”

25. In the case of State of Rajasthan vs. Om Prakash,

reported in AIR 2002 SC 2235, the Apex court observed a well

settled proposition that conviction for an offence under Section 376

of the IPC can be based on the sole testimony of the rape victim. A

woman or a girl subjected to sexual assault is not an accomplice to

a crime but a victim of another person’s lust and it is improper and

 Page 16 of 19

undesirable to test her evidence with a certain degree of suspicion,

treating her as if she were an accomplice. It was further observed

that 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

in acting on the testimony of a victim of sexual assaults alone to

convict an accused where her testimony inspires confidence and is

found to be reliable.

26. When the girl was examined in the hospital on

08.12.2015, Dr. Rajib Karmakar(PW9) stated that her hymen was

found torn and there was an evidence of recent vaginal

penetration. PW9 further stated that the age of torn was 1/2 days

fresh. The prosecutrix being a girl aged about 8 years at that time

and her hymen, having been found torn, when she was examined

in hospital, is drawing expression of the fact that she had been

subjected to rape in terms of Section 4 of POCSO Act and

Section376(2)(i) of IPC. The medical report produced by PW9, Dr.

Rajib Karmakar is sufficient to convict the appellant and establish

the credibility of the statement of the victim girl (PW 2) that the

accused-appellant put his hand in her private parts.

27. In Aman Kumar & Other vs. State of Haryana,

reported in (2004) 4 SCC 379(para 7), the Apex Court held that:
 Page 17 of 19

“Penetration is the sine qua non for an offence of rape.

In order to constitute penetration, there must be
evidence clear and cogent to prove that some part of the
virile member of the accused was within the labia of the
pudendum of the woman, no matter how little. The depth
of penetration is immaterial in an offence punishable
under section 376 of IPC. Even a slight penetration in the
vulva is sufficient to constitute the offence of rape and
rupture of the hymen is not necessary. Vulva penetration
with or without violence is as much rape as vaginal
penetration. The statute merely requires evidence of
penetration, and this may occur with the hymen
remaining intact. The actus reus is complete with
penetration. Thus, to constitute the offence of rape, it is
not necessary that there should be complete penetration
of the penis with emission of semen and rupture of
hymen. Partial penetration within the labia majora of the
vulva or pudendum with or without emission of semen is
sufficient to constitute the offence of rape as defined in
the law.”

28. Section 4 of the POCSO Act provides the punishment

for “penetrative sexual assault” which may be read as follows:-

“Whoever commits penetrative sexual assault

shall be punished with imprisonment of either description
for a term which shall not be less than seven years but
which may extend to imprisonment for life, and shall also
be liable to fine.”
 Page 18 of 19

29. Section 3 of the POCSO Act defines “penetrative sexual

assault” which may be read as follows:-

“A person is said to commit “Penetrative sexual

assault” if-

(a) He penetrates his penis, to any extent, into the

vagina, mouth, urethra or anus of a child or makes the
child to do so with him or any other person; or

(b) He inserts, to any extent, any object or a part of the

body, not being the penis, into the vagina, the urethra or
anus of the child or makes the child to do so with him or
any other person; or
(c) He manipulates any part of the body of the child so as
to cause penetration into the vagina, urethra, anus or any
part of body of the child or makes the child to do so with
him or any other person; or

(d) He applies his mouth to the penis, vagina, anus,

urethra of the child or makes the child to do so to such
person or any other person.”

30. In the case in hand, it has come to the fore that the

accused appellant has inserted his finger in and around the private

parts of the girl and falls within the purview of definition of Section

3(b) of POCSO Act.

31. After meticulous appreciation of the evidence on

record, it can safely be opined that the testimony of the girl finds

full corroboration not only from the injuries, including torn vagina

found on her person when she was examined in the hospital but
 Page 19 of 19

also from the statement of PW 3, her mother to whom she first

divulged the entire episode. When the medical evidence supported

the victim and there was nothing in the cross-examination of the

victim to discard her evidence or brand it as unbelievable or

untrustworthy, then, the facts stated were sufficient to come to the

conclusion that the accused committed the offence.

32. By giving our thoughtful consideration to the evidence

and materials on record, this Court is of the view that there is no

scope to draw any other inference other than the guilt of the

accused appellant to the crime. There is no reason to disbelieve the

testimony of the victim and, therefore, the learned Special Judge

was justified in holding that the prosecution had been able to prove

the guilt of the accused beyond reasonable doubt and proceeded to

convict him. The Judgement and order of conviction and sentence

dated 27.06.2019 as returned by learned Special Judge are upheld

and affirmed.

33. Consequently, the appeal fails and the same is

dismissed.

Send down the LCRs.

(ARINDAM LODH),J (AKIL KURESHI),CJ

Suhanjit