PEMA TSHERING BHUTIA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Appellant was convicted under Sec. 354 and Sec. 506 (First Part) of the Indian Penal Code, 1860 (for short "IPC"), in Sessions Trial (POCSO, Act) Case No.05 of 2021, vide the impugned Judgment, dtd. 28/8/2021. By the impugned Order on Sentence, dtd. 31/8/2021, he was directed to undergo imprisonment for one year under Sec. 354 of the IPC, with fine of Rs.1,000.00 (Rupees one thousand) only, and imprisonment of one year under Sec. 506 of the IPC, with fine of Rs.1,000.00 (Rupees one thousand) only, both sentences of fine bore default clauses of imprisonment. The sentences of imprisonment were ordered to run concurrently. Aggrieved thereof, the Appellant is before this Court assailing both and seeking an acquittal.

(2.) (i). The Prosecution case arose on the basis of Exhibit 1, an FIR, dtd. 6/4/2021, lodged by P.W.1, the District Child Protection Officer (DCPO), informing therein that the victim, P.W.9, aged about 11 years, was produced before the Child Welfare Committee (CWC), North Sikkim, on 5/4/2021, by the Police. During the victim's counselling by P.W.1, she revealed that in 2019, one 'A.N.' committed aggravated penetrative sexual assault on her and her cousin in his room. Thereafter, when she along with her foster parents changed residence to a place 'C' the present Appellant sexually assaulted her by touching her private parts and kissing her from January, 2021, up to March, 2021. He threatened her with dire consequences if she reported the assault to any person. Exhibit 1 was duly registered at the concerned Police Station on the same date, under Ss. 376/506 of the IPC read with Ss. 6 and 10 of the Protection of Children from Sexual Offences Act, 2012 (for short "POCSO Act"), against the Appellant and the said 'A.N.' jointly.

(3.) In Appeal, Learned Counsel for the Appellant contended that the entire Prosecution case is based on the victim's statement which however has been consistently improved, from her Sec. 161 Cr.P.C. to her Sec. 164 Cr.P.C. statements and in her deposition before the Court. Her evidence does not qualify as being that of a sterling witness and conviction cannot be sustained on such erratic evidence. Towards this end, Learned Counsel placed reliance on Sangam Rai and Another v. State of Sikkim SLR (2020) Sikkim 511 and Rai Sandeep alias Deepu v. State of NCT of Delhi (2012) 8 SCC 21. Learned Counsel carefully led this Court through the evidence of the Prosecution witnesses and urged that the question of the Appellant sharing the victim's room did not arise as it is the victim's own statement that when guests came to the house she used to share a room with her foster mother. That, her foster father, a teacher was posted in a remote area of North Sikkim and occasionally came home. That apart, it is not clear when the alleged incident took place in view of the variations in her statement, viz., in her Sec. 164 Cr.P.C. statement the incident(s) allegedly took place in 2019, whereas in Exhibit 1 lodged by P.W.1, she reported that the incident took place from January, 2021 up to 30/3/2021. In her evidence before the Court she has deposed that it was till April, 2021. That, the description of the acts of sexual assault also vary in her statements. As per the FIR the sexual assault by the Appellant was by touching the victim's private parts and kissing her. In her Sec. 164 Cr.P.C. statement, she has added that he asked her to fondle his private part. In her evidence before the Court she has exaggerated her previous statements and added that besides touching her private parts, breasts and kissing her on her lips he also committed penetrative sexual assault. The attention of the Court was also invited to Exhibit 3, the counselling report of the victim prepared by P.W.1 where the acts of sexual assault committed by the Appellant differs from the acts described in the FIR, Sec. 164 Cr.P.C. statement and deposition in Court. That, the Appellant in fact is a permanent resident of another place in North Sikkim and sometimes visited the victim's foster mother (his sister) but very rarely spent the night in her house. Considering that the entire case of the Prosecution is based on the evidence of the victim which is neither cogent nor consistent, the impugned Judgment deserves to be set aside and the Appellant acquitted of the offence under Ss. 354 and 506 of the IPC.