SANJAY MANGER Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Appellant on being convicted under Sec. 9(m) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter the "POCSO" Act), was sentenced to undergo simple imprisonment for five years and to pay a fine of Rs.10,000.00(Rupees ten thousand) only, under Sec. 10 of the POCSO Act with a default clause of imprisonment. The Learned Trial Court, South Sikkim, at Namchi, while convicting the Appellant recorded that it had relied mainly on the evidence of P.W 1 the minor victim and P.W 2, P.W 3, P.W 5 and the Investigating Officer.

(2.) (i). The Prosecution case is that, on 20/3/2019, Exhibit 1 the First Information Report (for short the "FIR") was lodged by P.W 2, informing that the same morning around 3.30 a.m., his daughter aged about six years old had been sexually assaulted by the Appellant who had spent the night in his house.

(3.) Learned Counsel for the Appellant, assailing the conviction and Sentence canvassed that the Appellant was indeed falsely implicated as the evidence of P.W 3 and P.W 5 indicates the animosity of P.W 2 and P.W 5, the victim's parents, towards the Appellant. Secondly, the age of the victim being six years has not been proved in view of the fact that the contents of the Birth Certificate, Exhibit 4, were not proved in terms of the legal provisions. Reliance on this aspect was placed on the ratio in Alamelu and Another vs. State Represented by Inspector of Police (2011) 2 SCC 385. That, the date of incident was said to be 20/3/2019 at around 3.30 a.m. and the victim was examined the same morning at 10.30 a.m. but the evidence of the Doctor P.W 7 clearly reveals that there were no injuries on the genital or person of the victim. The Register of the Births and Deaths where the date of birth of the victim was allegedly entered was not seized or furnished before the Learned Trial Court without which it cannot be gauged as to whether P.W 7 was privy to the entries therein. The Prosecution also failed to furnish a true copy of the Register and did not enumerate the reasons for non-production of the Register. The evidence of P.W 2 and P.W 5 are also unreliable being contradictory since P.W 2 claimed to be present at home when the incident took place, while his wife P.W 5 contrarily admitted under cross-examination that P.W 2 was not present at the place of occurrence at the relevant time. The victim herself with clarity, under cross-examination admitted to being tutored by her parents. In view of the anomalies in the Prosecution's case and the specific statement of P.W 1 about having tutored, the Learned Trial Court erroneously convicted the Appellant. Hence, the impugned Judgment and Order on Sentence be set aside.