SANJIB RAI Vs. STATE OF SIKKIM

JUDGEMENT

(1.) Both Appellants No.1 and 2 (for short, A1 and A2) herein were convicted vide impugned Judgment dtd. 22/10/2020 in Sessions Trial (POCSO) Case No.05 of 2019, under Sec. 376 of the Indian Penal Code, 1860 (for short "IPC") and sentenced to undergo imprisonment for 10 (ten) years, each, with fine of Rs.500.00 (Rupees five hundred) only, each, and default clauses of imprisonment, vide impugned Order on Sentence dated 23-10- 2020, for sexually assaulting the victim.

(2.) (i). The Prosecution case as it unfolds is that on 13-09- 2019, source information was received at the Police Station, that the minor girl was missing from her home from 11/9/2019 which had remained unreported. The Investigating Officer (I.O.), P.W.13 visited her parents to request them to lodge a First Information Report (FIR). Meanwhile, the Police took necessary steps, traced and brought the victim, P.W.1 to the Police Station. P.W.2, an Outreach Worker, District Child Protection Unit (DCPU) was intimated about the situation and P.W.1 handed over to her for counselling, during which, P.W.1 revealed to P.W.2 that she had been with A1 for two days and had been sexually assaulted by him. On such revelation, P.W.2 lodged the FIR, Exhibit 4, on 13-09- 2019.

(3.) Learned Counsel for the Appellants put forth the arguments before this Court that it was the victim who had voluntarily gone to the place of residence of A1 and A2 and also voluntarily spent nights therein. The testimony of the victim was neither trustworthy nor unblemished in view of the contradictions which appear in her Sec. 164 Cr.P.C. statement and her deposition in Court. The Evidence of P.W.5 and P.W.12 do not support the evidence of P.W.1 thereby indicating that her testimony is a concocted story. That, in her Sec. 164 Cr.P.C. statement she has made no mention of A2 or of having been sexually assaulted by him, but before the Learned Trial Court she had made an effort to falsely implicate him. The evidence of P.W.1 is unbelievable also for the reason that there was only one door for entry into the place of residence of A1 and A2 and she herself has testified that every room in that place was occupied. She could well have raised an alarm to obtain the assistance of the occupants in the event that she was raped, but her evidence reveals no such attempts leading to a conclusion that the acts with A1 and A2 were consensual. The I.O. has failed to investigate and identify the person who allegedly came to open the door of the room where she was allegedly confined by A1, raising doubt about her version and the Prosecution case. The Doctor"s evidence reveals that there were no injuries on the person of the victim nor did she opine that the victim was forcibly sexually assaulted by any of the Appellants. No blood or semen was detected on M.O.I, the quilt forwarded for forensic tests. The Prosecution case has thus no legs to stand, the impugned Judgment and Order on Sentence be set aside and the Appeal dismissed.