The State ofTripura, represented by the learned Public Prosecutor, High Court of Tripura, Agartala vs Sri Mitan Debnath, son of late Akhil Debnath

This is an appeal by leave under section 378 (1) (b) of the Cr.P.C. from the judgment and order of acquittal dated 04.04.2014 by the Assistant Sessions Judge, North Tripura, Dharmanagar in Case No. ST 39(NT/D) of 2012 acquitting the accused, the respondent herein from the charge under section 366A of the IPC.

By the written ejahar dated 25.04.2012, one Nirmal Debnath (PW-1) had disclosed that when his daughter [the name is withheld for protecting her identity] did not return home after taking tuition on 24.04.2012, on search he came to know that his daughter was forcefully dragged into an unidentified car from the front of a shop which situate in the northern part of the Pecharthal Market. With the help of police, he could rescue his daughter from a place called Cham Tilla and the accused Litan Debnath was apprehended by the police from that place.

Based on the said written ejahar Pecharthal P/S case No. 17/12 was registered under Section 366 A of the IPC and taken up for investigation. On completion of the investigation, the final police report was filed charge-sheeting the accusedrespondent. The case was committed to the court of the Additional Sessions Judge. The Additional Sessions Judge transferred the case to the Court of the Assistant Sessions Judge, North Tripura, Dharma Nagar for trial in accordance with law. In turn, the said court framed the charge against the accused-respondent under Section 366 of the IPC for kidnapping/abducting to compel the woman to marry any person against her will or to seduce her to illicit intercourse. The accused-respondent had pleaded not guilty and claimed to face the trial.

In order to substantiate the charge, the prosecution adduced as many as 9(nine) witnesses including the victim (PW-3) and the investigating officer (PW-7). Apart that, some documentary evidence including the written ejahar (Exbt. 1) and the seizure list (Exbt.3) by which one birth certificate of the victim was seized were introduced by the prosecution. On closure of the prosecution evidence, the accused-respondent was examined under Section 313 of the Cr.P.C. for having his response to the incriminating materials as surfaced in the record of evidence. During the said examination, the accused-respondent denied the veracity of the evidence and reiterated his plea of innocence.

On appreciation of the evidence introduced by the prosecution, as for the defence no evidence was introduced separately, by the impugned judgment and order, the accusedrespondent was acquitted from the charge after returning the finding that prosecution has totally failed to establish the charge. The trial court did not rely on the evidence of the victim as that might have caused "prejudice and miscarriage of justice". Being aggrieved by the said judgment and order of acquittal the state has filed this appeal with leave from this court.

Ms. S. Deb Gupta, learned special Public Prosecutor appearing for the appellant has stated that the finding as returned by the trial court is perverse inasmuch the testimony of PW-3 has been corroborated by the other witnesses such as PW-1, PW-4 and PW-7 on material parts. Ms. Deb Gupta, learned special Public Prosecutor has contended that there is no reason to discard the testimony of the victim who has elaborately stated every moment of transaction of crime. The finding of the trial court that corroboration of the solitary witness is essential to avert prejudice is manifestly erroneous. The trial court has thus acted with material irregularity. Its appreciation of evidence lacks coherence and it is to that extent that it shocks the sense of justice.

Ms. S. Deb Gupta, learned special Public Prosecutor has in order to laying analogy referred to the testimony of PW-3, the victim who has stated that on 24.04.2012, in the morning at

30 a.m., she was going to private tuition. When she reached near the house of the private tutor, she saw the accusedrespondent waiting in a red-coloured Alto Vehicle. He called her. When she came nearer to the vehicle, the accused-respondent came out of the vehicle and pressed her mouth to drag her inside the vehicle forcefully. She tried to get rid of from the clutch of the accused-respondent but she failed. The vehicle was taken to Cham Tilla. From there, she was taken to a house. She met there an old man whom the accused-respondent called Dadu (grandfather). She was locked in a room by the said old person. She was also given some food there. At that time, one lady came there and changed her dress and she was compelled to wear Saree. That lady put vermilion on her forehead applying force. She was also forced to wear conch-bangle. At one point of time, she was taken to a different room. The said house was raided by the police and found her in captivity in one of the rooms of the said house. From there, she was taken to Panisagar Police Station. Thereafter she was taken to Pecharthal Police Station. In the Pecharthal Police Station, she was handed over to her guardian and the accusedrespondent was sent to the police custody. She has also admitted that she was a student of Class-X of Pecharthal Class-XII School. She identified her statement recorded by one Judicial Magistrate under Section 164 (5) of the Cr.P.C.

In the cross examination, she has stated that she was going by bicycle. She kept her bicycle beside the road when the accused-respondent called her. She has categorically stated that within 20 cubits from the place of occurrence, there were people. She has also admitted that after alighting from the vehicle, she walked to that house at Cham Tilla. PW-3 had failed to show from her previous statement, as recorded by the Investigating Officer (PW-7), that she stated to PW-7 that she was taken to a house where an old man whom the accused-respondent called the grandfather kept her inside the room and locked the room from outside. Similarly, in the second room where she was replaced, the said old man locked her from outside. PW-7 has made some significant statements in the trial viz. i) When the victim girl was produced before PW-7 she was not wearing conch bangle, Vermilion or new saree and

ii) PW-7 did not seize any certificate from the school when the victim was continuing her studies, for proving the age.

PW-4, Suprakash Debbarma has stated that he got information that "a boy and a girl is remaining there after fleeing from Pecharthal". He had along with other persons recovered the boy and girl. The victim did not state to PW-4 that the accusedrespondent had forcibly taken her away. Thus there had been no adverse material in the GD entry recorded by PW-4. PW-4 has categorically stated there was only dwelling hut in that house. They found the boy and the girl lying in the same bed. PW-1, father of the victim has stated in the trial that his daughter was forcibly kidnapped by the accused-respondent and hence he filed the ejahar in the police station. He has also stated that his daughter was admitted in Class-I at the age of seven. But he denied the suggestion that his daughter was aged about 18 years.

PW-2, Sajal Debnath is the younger brother of PW-1 and he has stated to have learnt the incident from PW-1 initially, but later on while he was in search of the victim, he came to know that someone namely Litan Debnath was driving the vehicle.

PW-5, Ratna Debnath is the seizure witness and grandmother of the victim. She has stated that the victim had gone to Cham Tilla for meeting her relative after giving information to her. But she could not communicate that information to her son, PW-1 and PW-2. This witness has however been declared hostile.

PW-6, Kishan Debnath who identified the accused respondent in the dock, has made the following statement in the trial: "In the way of return from Kumarghat accused Mithan Debnath gave signal and accordingly I stopped the vehicle and took Mithan Debnath inside the vehicle. I was coming towards Dharmanagar and Mithan Debnath was also intended to come to Dharmanagar. In the way at Pecharthal one girl named Sumana gave signal for stopping the vehicle. I dropped the girl Sumana at Chamtila and the boy Mithan came at Dharmanagar. I did not give any statement to darogababu."

PW-6 was also declared hostile.

PW-8, Smt. Sadhana Nath has stated in the trial that her grandson, the accused-respondent came to our house with a girl and remained with the same girl in her house. In the night, the police came from Panisagar Police Station and had taken away her grand son and the girl.

PW-9, Smt. Minati Nath has stated that the accused respondent came with "a lady" to the house of Upendra Nath. Neither PW-8 nor PW-9 were relied by the prosecution. They did not notice or state that the girl or the lady were brought there on applying force.

On appreciating the evidence thus what has surfaced is that the prosecution did not take any attempt at all to prove the age of the victim. If the statement of PW-1 is relied, the victim should be above the age of 17 years, if not more. The prosecution did not introduce in the evidence, the certificate of birth which was exposited to have been seized by PW-7 and no explanation therefor has been given. That no doubt being a vital piece of evidence was withheld from the trial and hence adverse inference is reasonably to be drawn against the prosecution. On overall assessment of the evidence, this court is constrained to hold that the prosecution has totally failed to prove the age of the girl whether she was having the consenting age or not. From the scrutiny of evidence what has appeared is that no force was applied on the girl by the accused-respondent and it has further appeared that she was a willing partner in the escapade. But later on, when she was recovered she had changed her version. Even in the statement recorded by the Judicial Magistrate she did reveal that she kept the bicycle in the road-side and went near the vehicle. Hence, the benefit of doubt could be extended to the accused.

The law relating to interfering with the judgment and order of acquittal to a greater extent has been crystallized by the apex court in Chandrappa Versus State of Karnataka reported in (2007) 4 SCC 415 where some guiding principles has been laid down. Those are as under : "(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as ''substantial and compelling reasons'', ''good and sufficient grounds'', ''very strong circumstances'', ''distorted conclusions'', ''glaring mistakes'', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such pharaseologies are more in the nature of ''flourishes of language'' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is no doubt presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty be a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

Since the age of the victim, the prosecution has failed to establish and from the statement of the father it clearly appears that she was above 17 years of age no prudent person can conclusively come to an inference that the victim was not in the consenting age. There is no reliable evidence that the accused respondent applied force on her. On the contrary, it has surfaced that her participation in the escapade was voluntary.

Having held so, we are not persuaded despite Ms. Deb Gupta, special Public Prosecutor has strenuously argued that there cannot be earthly reason to disbelieve the evidence of PW-3, to reverse the finding as returned by the trial court for the reasons as noted above. In the result, this appeal stands dismissed.

Send down the LCRs forthwith.