SANGAM RAI Vs. STATE OF SIKKIM

JUDGEMENT

(1.) By the impugned Judgment, dated 29-06-2019, in Sessions Trial (POCSO) Case No.03 of 2017, both Appellants were convicted of the offence under Section 341/34 and Section 354/34 of the Indian Penal Code, 1860 (for short, "the IPC"). The impugned Order on Sentence directed each of the Appellants to undergo simple imprisonment for 15 (fifteen) days under Section 341/34 of the IPC and, simple imprisonment for one year each with a fine of Rs.3,000/- (Rupees three thousand) only, each, under Section 354/34 of the IPC. The sentence of fine bore a default clause of imprisonment. Aggrieved thereof, the Appellants seek the setting aside of the impugned Judgment and Order on Sentence.

(2.) Forwarding his arguments for the Appellants, Learned Counsel submitted that the occurrence of the incident is a far-fetched imaginary narrative of the Prosecution considering the improbabilities and the anomalies that are nestled in the Prosecution case. While walking this Court through the evidence of the Prosecution witnesses, it was submitted that there are apparent contradictions in the evidence of P.W.1 and P.W.2, as found in their statements under Section 164 of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C.") and their evidence before the Court. That, the consistent stand of the Prosecution has been that P.W.1 and P.W.2 after the incident on 07-12-2006 spent the night in the house of P.W.10 and on the next date, they left for Jorethang, where they spent the night in the Jorethang Car Parking Plaza area. Contrarily, the evidence of P.W.7, a driver and relative of P.W.2 is to the effect that on 08-12-2016 after his duty was over, he found P.W.1 and P.W.2 in the Parking area and took them to his home, thereby demolishing the Prosecution stand of the two girls having spent the night at the parking lot, by their own witness. That apart, it is the evidence of P.W.1 and P.W.2 that P.W.3 their school friend had requested them to drop her home, which is in contradiction to the evidence of P.W.3 who stated that P.W.1 and P.W.2 desired to reach her to her home and she was unaware of their whereabouts after they reached her village. That, her evidence nowhere reveals that they reached her home. The next glaring anomaly that arises is that in Exhibit 7, the original FIR lodged by P.W.4 and P.W.5 the time of offence is mentioned at "1300 hours", the formal FIR, Exhibit 8, reveals that the incident occurred at around 2 p.m., while the girls by their evidence seek to convince the Court that the incident took place late in the evening when it was dark by stating that they managed to escape from the clutches of the Appellants when the headlights of passing vehicles focused on the place of incident. That, the falsity in their evidence is apparent as in their statements under Section 164 Cr.P.C. they have nowhere stated that the incident took place in the late evening or for that matter when it was dark, but that it was 3.30 p.m. It is pertinent to note that P.W.1 makes no mention of any vehicle lights in her statement under Section 164 Cr.P.C. and stated that the incident took place at 3.30 p.m. P.W.2 in her Section 164 Cr.P.C. statement lends support to the statement of P.W.1 that the incident took place at 3.30 p.m., but P.W.2 in Court stated that the incident pertained to 5.30 p.m. of the relevant day. The further evidence of P.W.1 and P.W.2 is to the effect that after the incident they wanted to report the matter at the Sumbuk Police Out Post (O.P.), but no Police personnel was present at the Sumbuk O.P. However, the Investigating Officer (I.O.) P.W.23 has deposed that every Police O.P. is manned by Police personnel at any given point of time, rendering false the statement of P.W.1 and P.W.2. That, P.W.4 and P.W.5 the fathers of the two girls have stated that they went missing from 07-12-2016, but P.W.1 and P.W.2 did not inform their respective fathers of their whereabouts after they were allegedly molested, which casts a doubt on the veracity of the two girls" evidence. That, the contradictory evidence on record and the statement of the Appellants in their examinations under Section 313 Cr.P.C. reveals that the two girls were caught smoking at the place of the alleged incident by the Appellants and to ward off the consequences of their unexpected behaviour they have foisted a false case against the Appellants which is borne out by the contradictory and inconsistent evidence on record. That, there seemingly was a verbal altercation between P.W.1 and P.W.2 on one side and the two Appellants and a Child in conflict with Law (for short, "CICL") on the other, but there is no evidence whatsoever of any physical scuffle that the Appellants resorted to nor is it borne out by the medical examination of P.W.1 and P.W.2 whereby no injuries were detected on them. That, the Learned Trial Court failed to take into consideration the cross-examination of the P.W.1 and P.W.2 or any of the Prosecution witnesses which in fact demolished the Prosecution case and hence the Learned Trial Court was in error in convicting and sentencing the Appellants, who thereby deserve an acquittal. To fortify his submissions, Learned Counsel placed reliance on Lal Bahadur Kami v. The State of Sikkim 2017 SCC OnLine Sikk 173 : 2018 Cri.L.J. 439, Binod Sanyasi v. State of Sikkim 2019 SCc OnLine Sikk 111 and Deepan Darjee v. State of Sikkim 2019 SCC OnLine Sikkim 130.

(3.) For his part Learned Additional Public Prosecutor while making strenuous efforts to support the Prosecution case fairly admitted that anomalies existed in the Prosecution case with regard to the time of the offence which was reflected in Exhibit 7, Exhibit 8 and the deposition of P.W.2 who stated that it was 5.30 p.m. That, these anomalies are trivial and deserve to be ignored. That, it is now settled law that undue importance should not be attached to the minor anomalies which exist in the Prosecution case, by the Court, if they do not substantially affect the Prosecution case. It is clear that the incident indeed occurred during the evening around 5.30 p.m., as per P.W.1 and P.W.2 and the vehicles passing by the place of incident had their head lights on which deterred the Appellants from continuing with their misdemeanour. That, the evidence of the Doctor also corroborates the evidence of P.W.1 and P.W.2 with regard to the molestation perpetrated on them by the Appellants, as during their medical examination they have informed the Doctor that they were sexually assaulted by the Appellants. That, mere absence of physical injuries on the two girls is no ground for disbelieving them. That, they were traumatized by the incident and being ashamed and afraid of narrating the incident to their parents instead of returning home they went to Jorethang. It was further contended that due to the trauma the two girls continued to remain out of their house till the morning of 10-12-2016. On being found by P.W.7 on 08- 12-2016, they were able to tell him of the incident and call their parents to Jorethang on 10-12-2016. Hence, the Appellants are guilty as found by the Learned Trial Court and the Judgment and Order on Sentence suffers from no infirmities.