SUBASH CHANDRA CHETTRI Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The prosecution examined 18 witnesses to establish two charges framed by the learned Special Judge, Protection of Children from Sexual Offences Act, 2012 (POCSO Act), Gyalshing, under sec. 376 AB of the Indian Penal Code, 1860 (IPC) and sec. 5(m) of the POCSO Act on 23/10/2020. The prosecution was successful during trial and by the judgment and order on sentence, both dtd. 19/10/2021, the learned Special Judge (POCSO Act), West Sikkim at Gyalshing, convicted and sentenced the appellant under sec. 376 AB of the IPC and sec. 5(m) of the POCSO Act. The appeal is directed against the impugned judgment and order on sentence passed by the learned Special Judge.

(2.) Mr. B.K. Gupta, learned counsel for the appellant, drew the attention of this court to the medical report (exhibit-21) of the victim (PW-1) prepared by Dr. Tukki Dolma Bhutia (PW-15), which recorded that there were no visible external injuries and local examination revealed only redness over the labia minora, although the charge was of penetrative sexual assault. It was submitted that PW-4 was a vital prosecution witnesses who turned hostile and did not support the prosecution case. The learned counsel also drew the attention of the court to the deposition of PW-5 in which she deposed that the victim had told her mother in her presence in Nepali - "malai Subash Uncle le paisa dera jabarjasti naramro kaam garyo". He also drew the attention of this court to the deposition of PW-9 in which she deposed that when she asked the victim as to what happened, she told her that the appellant had given her Rs.15.00 and done "naramro kaam". It was submitted that in the matter of Ash Bahadur Subba vs. State of Sikkim : Crl. A. No. 02 of 2021, a similar situation had been considered where the victim had stated that the accused had committed "chara" on her and the Division Bench of this Court had held that the victim's understanding of the word "chara" without further explanation cannot be assumed as the word may be used variously to describe sexual acts and may not necessarily be an expression of penetrative sexual assault.

(3.) Mr. S.K. Chettri, learned Additional Public Prosecutor, submitted that the impugned judgment and order on sentence are sound and need no interference. He took us to the charge framed and the deposition of the victim, the victim's mother (PW-3), victim's father (PW-2), PW-4, PW-5, PW-6, PW-9 and PW-12, and submitted that the prosecution had been able to establish the charges beyond reasonable doubt. He relied upon the judgment of the Supreme Court in Swaroop Singh vs. State of Madhya Pradesh (2013) 14 SCC 565, in which it was held that:-