1. This is an appeal filed under Section 374 of Criminal Procedure Code, 1973 against the impugned judgment and order of conviction and sentence passed by the learned Special Judge (POCSO), West Tripura District, Agartala on 15.03.2021 in connection with the case bearing Special(POCSO)20 of 2019 whereby the present appellant was sentenced to suffer S.I. for 6 months. The present appellant is also convicted under Section 354B of IPC in alternative of Section 8 of the POCSO Act and to suffer R.I. for a term of 3(three) years and to pay a fine of Rs. 15,000/- with default stipulation. Both sentences shall run concurrently.

2. The fact of the prosecution case, in brief, is that, P.W. 1, Smt. Dipali Nama being the informant and the mother of the victim (name withheld), has lodged a written ejahar with the O.C. Agartala, Women P.S., West Tripura. In the said ejahar, it is stated that on 12.02.2019 at about 20.05 hrs., her victim daughter was in the house alone and the informant went to her workplace in the morning. She alleged that at about 10.45 am, the appellant entered the house, and taking advantage of the loneliness of her daughter, the appellant touched the breast of her daughter and also tried to undress her by removing her panty. It is further stated that during the incident, the victim shouted and raised alarm. After running out of her house, the victim took shelter in the house of the neighbour, namely, Narayan Biswas when the victim narrated the incident to others. The informant prayed before the police to take appropriate steps in that regard.

3. After the receipt of the aforesaid complaint, Agartala Women P.S. registered a case bearing No. WAW004/2019 under Section 448/354(B) of IPC and Section 8 of POCSO Act, 2012 dated 12.02.2019 and endorsed the same to be investigated by the WSI, Emily Nandi, P.W. 9, I.O. of the case.

4. Subsequently, after investigation, police filed the charge sheet against the present appellant under Section 448/354/323 of IPC read with Section 8 of the POCSO Act.

5. Learned Special Judge, West Tripura District, Agartala registered the case being Special (POCSO)2O OF 2019.

6. After perusal of the materials on record, the learned Special Judge has framed charges which are reproduced herein below:-

"(i) Whether on 12.02.2019 about 10.45 a.m. the accused committed house tress press by entering into the house of the informant at Barjala and thereby committed an offence punishable under Section 448 of the Indian Penal Code

(ii) Whether on the above mentioned date, time and place, the accused used criminal force upon the victim daughter of the informant and after touching her breast, he tried to disrobe her by removing her panty and that he thereby committed an offence punishable under Section 354B of the Indian Penal Code

(iii) Whether on the above mentioned date, time and place, the accused touched the breasts of the victim girl, a child and further with sexual intent, tried to remove her panty and that he thereby committed an offence of sexual assault punishable under Section-8 of the POCSO Act

(iv) Whether on the above mentioned date, time and place, the accused caused hurt to the victim and that he thereby committed an offence punishable under Section 323 of the Indian Penal Code"

7. In course of the trial, upon consideration of the record and after hearing both sides, the learned Trial Court framed the charge against the appellant under Section 448/354B/323 of IPC and alternatively under Section 8 of the POCSO Act. The appellant pleaded not guilty and claimed to be tried.

8. The prosecution has examined as many as 9(nine) witnesses to substantiate the charge which are as follows:-

P.W. -1:-Smt. Dipali Nama(the informant).

P.W. -2:-victim(name withheld).

P.W. -3:-Smt. Bina Das.

P.W. -4:-Smt. Soma Das.

P.W. -5:-Smt. Chitra Das.

P.W. -6:-Sri Rakesh Shil.

P.W. -7:-Smt. Jaya Biswas.

P.W. -8:-Sri Upendra Sharma.

P.W. -9:-S.I. Emily Nandi(I.O.).

9. After completion of the recording of evidence of the prosecution side, the appellant was examined under Section 313 of Cr.P.C. to which he denied all the incriminating materials which appeared in the prosecution. Accordingly, two DWs were examined and those were 1) Smt. Anima Nama, D.W. 1 and Sri Loknath Roy, D.W. 2.

10. After hearing the arguments of both sides and perusing the evidence on record, learned Trial Court vide judgment dated 15.03.2021 convicted and sentenced and accused-appellant as mentioned herein-above.

11. Being aggrieved and dissatisfied with the impugned judgment and order of convicting and sentence dated 15.03.2021, the appellant has preferred this instant appeal and prayed for the following reliefs:-

"i. Admit the appeal as it is in time and filed observing all formalities;

ii. Issue notice upon the respondent state and call for the records from the learned Special(POCSO) Judge, Agartala, West Tripura, in c/w. Spl.(POCSO)20/2019;

iii. In the meantime, stay the order of conviction and sentence passed by the learned Special(POCSO), Judge, Agartala, West Tripura by his Judgment dated 15.03.2021;

iv. After hearing both sides your lordship would be kind enough to set aside the conviction and sentence passed by the learned Special Judge(POCSO), West Tripura District, Agartala on 15.03.2021 in connection with case Special(POCSO)20 of 2019 and may kindly be acquit the appellant from the charges with kind direction to set at liberty."

12. Heard Mr. H.K. Bhowmik, learned counsel appearing for the appellant as well as Mr. S. Debnath, learned Addl. P.P. appearing for the respondent.

13. Some prime witnesses to substantiate the charges framed against the accused-appellant are as under.

14. P.W. -1, the mother of the victim is the informant. She deposed that she works as a housemaid. On 12.02.2019 i.e. on the date of the incident, she left for her job at about 9.00 am leaving her daughter alone in her dwelling hut. At about 10.45 am, she received a call on her mobile phone by which she was asked to immediately return back home. She rushed back to her house and found her daughter standing in front of her house along with her grandmother and aunt. On being asked, the informant stated to have heard from her daughter that after taking food, the appellant entered into their dwelling hut and put his hands on the breasts of the victim. The appellant also tried to disrobe the victim by removing her panty. P.W. -1 deposed that the victim raised alarm, hearing which; local people gathered into their house and detained the accused-appellant. Subsequently, P.W. 1 stated to have visited West Agartala Women P.S. along with her daughter and lodged a written complaint which was prepared as per her dictation. P.W. 1 identified her signature in the ejahar as Exbt.-1/1. The witness identified the accused-appellant in the Court and as per her version, he was taken into custody by the police on spot. P.W. 1 further stated that on 13.02.2019 police seized the birth certificate of her daughter and she put her signature on a seizure list.

During the cross-examination, the informant revealed that she is staying in her marital house long before the alleged date of the incident and that the elder brother of the deceased husband along with her family also resides in the same homestead land. She also admitted that the accused-appellant is an employee of Barjala H.S. School and that on the alleged morning prior to the incident, she had visited the house of the accused. The informant further revealed that there are several other houses situated around her house including the house of one Narayan Biswas. She also denied the suggestion that Rakesh Shil did not write her ejahar or that on the alleged morning her daughter was not alone in the house or that her sister-in-law and elder brother-in-law were present. She also denied the suggestion that on the alleged morning, the accused came to her house as per her request and that when the victim was about to consume a 500mg Paracetamol Tablet, the appellant prohibited her not to have it without consulting a doctor. The informant also denied the fact that the appellant only touched the victim to check the temperate or that she lodged a false case against the appellant as he used to object her brother-in-law and his associates from trafficking intoxicants. She also denied the fact that the appellant never put his hand on the breast of the victim or that he never tried to remove the party of the victim.

15. P.W. -2, the victim is a child of about 13 years. Before recording her deposition, the Court below tried to test her ability of understanding and to give rational answers in the question-answer format. Being satisfied with her prudence and ability, her deposition was recorded. The victim stated that on 12.02.2019 in the morning, she was in the dwelling house of her uncle (elder brother of her father), as her mother left for her job. At about 10/11 am, her uncle went to the market after serving her food and also asked her to take the medicine as she was suffering from a fever. P.W. 2 stated that after food when she was about to take the medicine, one 'uncle' of their locality appeared there, and on the pretext of checking her temperature, he inserted her hands inside her wearing apparel and touched her chest. She also alleged that the 'uncle' tried to remove her wearing panty for which, she raised an alarm and rushed to a nearby house of Arpita Biswas. She deposed that subsequently, her mother and some police officials came to the house and she identified the accused-appellant to be the said 'uncle' when his picture was shown to her through a mobile phone display, though she was unable to name him. The victim also stated that she was produced before the Court where her version was recorded. She further identified her signature (Exbt.-4/1) in the said statement.

The victim was cross-examined through Court when she admitted that she did not narrate before the police officer that the accused-appellant entered her house at the time when her uncle was present. The above statement (Exbt.-1) is found to have been recorded by the I.O. as the attention of the victim was drawn to her earlier statement made under Section 161 of the Cr.P.C. The victim subsequently, denied the suggestion that the accused-appellant never put his hand on her chest and tried to remove her panty. She also denied the suggestion that the appellant touched her neck only to check her body temperature, as she was suffering from fever or that she deposed falsely.

16. P.W. -7, Smt. Jaya Biswas is the adjacent neighbour of the informant who did not stand in conformity with the expectation of the prosecution and she was declared hostile. On questions being forwarded, the witness stated that she knows the informant and her family well, but could not say if the police visited her house or not. She revealed that the appellant also is her neighbour. Subsequently, she denied to have stated before the police that the informant's daughter once came to their house crying and on asking; she told them that the accused, taking the opportunity of her loneliness, put his hand on her chest and tried to remove her wearing panty. The witness also denied to have stated before the police that the victim narrated the incident to her daughter Arpita.

During cross-examination, the witness stated that her husband usually leaves the house for his work at about 9.00 am and returns back in the evening. She also stated that she leaves the house for her work at about 10.00 am and her daughter goes to School usually at about 10.30 am. On being asked, the witness revealed that she was never interrogated by the Police in connection with this case.

17. The investigating officer deposed as P.W. -9 and stated that on 12.02.2019, in the afternoon, an information came to the police station that one minor girl has been sexually harassed in the Barjala area, for which she was asked to verify the matter. She stated to have attended the place near Barjala Gas Office and found that the accused appellant with bleeding injuries and under detention of the local people. She stated to have taken the accused-appellant with bleeding injuries and under detention of the local people. She then took the accused to IGM hospital, Agartala for his treatment and subsequently, took him to the police station. She deposed that at about 8.05 pm, the informant lodged her written complaint before the police, which was received by O.C. S.I. Mina Debbarma and registered the same as West Agartala Women P.S. Case No. 2019/WAW/004 and further filled up the printed form of FIR. P.W. 9 being a colleague of the O.C., identified her receipt and registering note including her signatures on both. It has been deposed by the witness that she was endorsed with the charge of the investigation of this case. During the investigation, she visited the P.O. and prepared a hand sketch map along with the separate index. She also examined the available witnesses and recorded their statements under Section 161 of Cr.P.C. P.W. -9 deposed that she arrested the accused-appellant and forwarded him to the Court and also produced the victim before the Magistrate for the recording of her statement under Section 164(5) of Cr.P.C. She also seized the birth certificate of the victim and identified the seizure list. On completion of the investigation, P.W. -9 stated to have found a prima facie case against the accused appellant under Section 448/354B of the IPC read with Section 8 of the POCSO Act and submitted the charge sheet accordingly.

During cross-examination, she revealed that in the first instance, she visited the P.O. in uniform on the basis of a GDE number. To a question put forth, she stated that the victim has stated to her that on the alleged morning, the accused-appellant visited her house while her senior uncle (jethu) was present. She further revealed that as per the victim, she took shelter in the house of the neighbour, Narayan Biswas, immediately after the incident, but she only examined the wife of Narayan Biswas and nobody else in that family. The investigating officer also admitted to have not tried to ascertain the names and identities of those local people who allegedly gathered at the alleged spot on the relevant date. On being asked, she admitted to have not ascertained nor examined the person who allegedly informed the informant about the incident over the telephone. It is also admitted by the I.O. that the witness Soma Das did not state that she came to know about the incident from the victim. The witness lastly denied the suggestion that she never visited the P.O. nor examined the witnesses Bina Das and Jaya Biswas or that her investigation in perfunctory.

18. Mr. H.K. Bhowmik, learned counsel appearing for the accused-appellant submitted that the informant as well as the victim has categorically stated that the incident was firstly disclosed and narrated to the inhabitant of the nearby house namely, Smt. Arpita Biswas, D/o Narayan Biswas and Smt. Jaya Biswas. Neither Narayan Biswas nor Arpita Biswas was examined by the prosecution. Smt. Jaya Biswas, P.W. 7 has supported the case of prosecution though she was declared hostile. In the present case, after careful scrutiny, it would be seen that neither the neighbouring people nor the probable witnesses of the nearby P.O. were examined. Only the relatives of the informant from other paces were examined and produced from the side of the prosecution and it is also evident that they are contradictory to one another. As per the FIR i.e. exhibit-1, the P.O. is the hut of the informant. P.W. -1 adduced the evidence that her daughter narrated to her that the offence was committed by the accused-appellant in the dwelling hut and at that time the Sr. uncle (Jethu) of the victim served her food. But the Sr. uncle (Jethu) was not produced before the Court. From the cross-examination of the witnesses, of the prosecution, and from the defence case, it came to light that there was enmity and unrest between the victim's family and the family of the appellant. It was also evident that the appellant was seriously assaulted by the people who were very much associated with the informant. Stating this, the learned counsel prayed to allow this instant appeal.

19. Mr. S. Debnath, learned Addl. P.P. appearing for the respondent submitted that the guilt of the accused-appellant has been proved beyond reasonable doubt and that the witnesses have sufficiently supported the case. Learned Addl. P.P. further submitted that there is every proof of the fact that the accused-appellant was detained in the house of the informant and he also molested the victim. Stating thus, learned Addl. P.P. urged to uphold the judgment and order passed by the Court below as the same is just and proper.

20. Heard both sides and perused the evidence on record.

21. Before delving into the conclusion of this case, let us reproduce the question No. 25 of the examination of the accused-appellant under Section 313 of Cr.P.C.:-

"Q. No. 25-Do you have anything more to say about this case

Ans:-The cause of grudge of the complainant is that I did not extend help in the matter of her son's admission to school. The son of the complainant's sister-in-law is a drug peddler and I have raised voice against him. So, I am implicated falsely."

22. It is categorically stated in the above-mentioned question No. 25 of the examination of the accused-appellant under Section 313 of Cr.P.C., that the accused-appellant was falsely implicated in this case, when he raised his voice against the parents particularly, the brother-in-law of the informant i.e., the mother of the victim-girl with regard to involvement in Narcotic Drug cases. Further, this Court feels that the evidence of P.W. 2, the victim girl, and the evidence of other witnesses are shaky. Hence the case has not been proved beyond reasonable doubt by the prosecution and the benefit of the doubt is extended to the accused-appellant herein.

23. The order of the Court below in Special (POCSO)20 of 2019 dated 15.03.2021 is liable to be set aside and accordingly it is set aside.

24. Thus with the above observation and direction, this instant appeal is allowed and thus disposed of.

25. Consequently, pending application(s), if any, also stand closed.

Send down the LCRs.