THUTOP NAMGYAL BHUTIA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Appellant is aggrieved by the impugned Judgment which convicted him of the offence under Ss. 376 and 354 of the Indian Penal Code, 1860 (for short 'IPC'), in Sessions Trial (POCSO, Act) Case No.04 of 2021, dtd. 28/8/2021. He was sentenced to undergo imprisonment for a period of 10 (ten) years under Sec. 376 of the IPC, with fine of Rs.5,000.00 (Rupees five thousand) only, and a default clause of imprisonment, vide Order on Sentence dtd. 31/8/2021. No sentence was imposed upon the convict under Sec. 354 of the IPC, in view of the provisions of Sec. 220(5) of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') read with Sec. 71 of IPC.

(2.) (i). The Prosecution case is founded on Exhibit 9, the FIR dtd. 6/4/2021, lodged by P.W.9, the District Child Protection Officer (DCPO) of the area concerned, informing therein that the victim P.W.10, Prosecutrix No.1 (hereinafter, 'P.W.10') on 05-04- 2021, during counselling, revealed that in the year 2019 at the time of her cousin's death, the Appellant committed aggravated penetrative sexual assault on her and her cousin P.W.1, Prosecutrix No.2 (hereinafter, 'P.W.1') in his room, at their residence. Between the period January, 2021 up to 30/3/2021, another person also sexually assaulted her by touching her private part, kissing her and threatening her with dire consequences if she reported the assault. FIR was registered against the Appellant and the second assailant, Pema Tshering Bhutia.

(3.) Learned Counsel for the Appellant argued that in the first instance the age of the victims have not been proved. The Learned Trial Court in the impugned Judgment has concluded that although Exhibit 3 the Birth Certificate of P.W.10 and Exhibit 4 the Birth Certificate of P.W.1 were furnished, the Prosecution failed to establish their age. That, this finding has not been assailed by the State-Respondent before this Court. That, the Sec. 164 of the Cr.P.C. statement of P.W.1 and P.W.10 being Exhibit 2 and Exhibit 14 respectively, vary from the statements made by them before the Court, which, exacerbates the alleged acts of the Appellant, rendering the alleged victims as unreliable witnesses. That, the Sec. 164 Cr.P.C. statement of the P.W.1 does not reveal any penetrative sexual assault contrary to her assertion of such act in her deposition before the Court. That, the evidence of P.W.10 before the Court is in contradiction to that of P.W.1, since, according to P.W.10, she had peeped into the room of the Appellant and seen P.W.1 being undressed by the Appellant after which he committed penetrative sexual assault on P.W.1. That, he then called P.W.10 to his room and in the presence of P.W.1 undressed her and also committed penetrative sexual assault on her. Conversely, P.W.1 deposed that she and P.W.10 were together called by the Appellant to his room where he kissed both of them and thereafter inserted his private part into her vagina and into the private part of P.W.10. That strangely, it is the allegation of P.W.1 that after commission of the offence the Appellant undressed both of them. That, there are anomalies with regard to the date of incident. As per P.W.1, it may have been in the year 2018/2019, while according to P.W.10, the incident took place when her cousin passed away, but she gave no date or year of incident. That, assuming that the incident took place on the demise of their cousin, P.W.10 has specifically under cross-examination admitted that when the incident allegedly took place several persons were in the house performing 'Puja' in the Altar room. P.W.1 has substantiated this aspect by her evidence. That, in such circumstances, it would be inconceivable for the Appellant to commit the offences as alleged by P.W.1 and P.W.10 in his room which, according to P.W.1, is located in the ground floor, near the kitchen, where entry and exit of people would have been incessant, considering the bereavement in the house. That, it is also the evidence of P.W.1 that the Appellant did not bolt the door to his room when she was called by him, thereby making the entire Prosecution story unbelievable. The Prosecution has failed to explain the delay in the lodging of the FIR only on 6/4/2021, when the incident is alleged to be of 2019. It was next urged that, as per P.W.9, P.W.10 came to the Police Station on 5/4/2021, if that be so the question arises as to how the offence was one of 2019. In Exhibit 7, the Counselling Report of P.W.10, she does not reveal any threat held out to her by the Appellant and the statement regarding threat was added by P.W.10 only during her evidence in Court. The Prosecution story being rife with anomalies, the impugned Judgment of Conviction and Order on Sentence be set aside.