BIJAY CHETTRI Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Victim in the instant case was at the time of the alleged offence, seven years old, the Appellant was thirty eight years old. The Appellant is before this Court assailing the Judgment and Order on Sentence of the Learned Special Judge, Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO Act'), South Sikkim at Namchi, in Sessions Trial (POCSO) Case No.33 of 2018, dated 02.02.2021. He stood convicted under Section 9(m) of the POCSO Act and was sentenced to undergo Simple Imprisonment for a period of five years and to pay a fine of Rs.5,000/- (Rupees five thousand) only, with a default Clause of Imprisonment. Set off was granted in terms of Section 428 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.').

(2.) The grounds raised herein by the Appellant are that; (i) The Victim did not identify the Appellant in the Courtroom; (ii) The testimony of the Victim was not of sterling quality and the Learned Trial Court placed reliance on the Section 164 Cr.P.C. Statement of the Victim to convict the Appellant, despite the Statement being at variance from her Statement before the Learned Court. Hence, the Appellant deserves an acquittal. In support of his contentions, Learned Counsel placed reliance on the Judgments of this Court in Milan Rai v. State of Sikkim 2016 CriLJ 4591, Lall Bahadur Kami and Another v. State of Sikkim 2017 SCC OnLine Sikk 173, Binod Sanyasi v. State of Sikkim 2017 SCC OnLine Sikk 28 and State of Sikkim v. Karna Bahadur Rai 2020 SCC OnLine Sikk 33. Reliance was also placed on State of U.P. v. Krishna Gopal and Another (1988) 4 SCC 190, Vijayee Singh and Others v. State of U.P. (1990) 3 SCC 190 and Navin Dhaniram Baraiye v. The State of Maharashtra 2018 CriLJ 3393.

(3.) While resisting the arguments of Learned Counsel for the Appellant, the Learned Additional Public Prosecutor submitted that as the Appellant was present in the Courtroom, there was no question of him not being recognized or identified by the Victim. That, the Section 164 Cr.P.C. Statement of the Victim clearly establishes the act committed by the Appellant as also her evidence before the Learned Court, therefore there ought to be no leniency shown to the Appellant for his heinous act against the innocent Victim. That, consequently, there is no requirement for interference with the impugned Judgment and Order on Sentence.