ASH BAHADUR SUBBA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Appellant, aged about 40 years, was accused of having committed the offence of aggravated penetrative sexual assault, as defined under Sec. 5(m) of the Protection of Children from Sexual Offences Act, 2012 (for short "POCSO Act "), on the victim, aged about 10 years. Exhibit 2, the FIR, came to be lodged on 12/10/2019 by P.W.2, the victim"s mother, alleging therein that on 5/10/2019, at around 3 p.m., she had gone to wash utensils, at a nearby water source, close to the house of the Appellant, having left her daughter the victim (P.W.1) alone at home. When she returned home after her chore and entered the house, suddenly she heard her child scream. Hurriedly she entered the room where she saw the Appellant committing penetrative sexual assault on the victim, mortified, she reprimanded the Appellant.

(2.) Aggrieved thereof this Appeal has been filed assailing both the conviction and the sentence supra. In Appeal, it is contended by Learned Counsel for the Appellant that Exhibit 2, FIR was lodged belatedly on 12/10/2019, the incident allegedly having taken place on 5/10/2019, but the delay is unexplained. That, in Exhibit 1, the Sec. 164 Cr.P.C. statement of the victim, she has enumerated the persons who are her family members leading to an assumption that her younger sister was also present in the house when the incident occurred hence she was not left alone as alleged by P.W.2. That, the Investigating Officer (I.O.), P.W.15 in his evidence has admitted that the vaginal swab of the victim and the penile swab of the Appellant were sent for chemical analysis to RFSL Saramsa, however neither the document nor the examiner were before the Court. The I.O. admitted that no bodily fluids, blood or semen could be detected on the items forwarded to the FSL, which thereby negatives the Prosecution case. The evidence of P.W.2 the victim"s mother does not corroborate that of P.W.3 who followed her into the room where the alleged incident took place nor does the evidence of P.W.4 the victim"s wife, who also reached the spot, support the Prosecution case. More importantly, the evidence of P.W.13 the Doctor who examined the victim found no traces of penetrative sexual assault. That, the Learned Trial Court, despite this Court having cautioned in the ratio of State of Sikkim vs. Sashidhar Sharma 2019 SCC OnLine Sikk 154 that the use of the word chara ' in the Nepali vernacular may be used variously to describe different sexual acts and may not necessarily be an expression of penetrative sexual assault, has proceeded to foist the Appellant with the commission of penetrative sexual assault only on the basis of the Appellant having used the word chara ', without making an effort to understand the correct context of the word used by the victim. In the light of the above arguments and evidence, the impugned Judgment and Order on Sentence be set aside and the Appellant be acquitted of the offence.

(3.) While conceding to the arguments of Learned Counsel for the Appellant that the medical evidence does not support the Prosecution case and that the FSL report failed to find its way to the Learned Trial Court it was contended that the age of the victim is not disputed by the Appellant. That, mere non-existence of injuries on the genital of the victim does not necessarily rule out the commission of the offence under which he was convicted. That, the finding of the Learned Trial Court is based on the unwavering evidence of the Prosecutrix P.W.1 who asserted that the Appellant had committed penetrative sexual assault on her fortified by the evidence of P.W.2, who witnessed the Appellant committing the said act. Hence, the impugned Judgment of the Learned Trial Court requires no interference.