MILAN KUMAR RAI Vs. STATE OF SIKKIM

JUDGEMENT

(1.) Mr. Jorgay Namka, learned counsel for the appellant, sought to assail the impugned judgment dtd. 11/10/2021 passed in S.T. (POCSO) Case No. 10 of 2020 convicting the appellant under sec. 376(2)(n) and 376(3) of the Indian Penal Code, 1860 (IPC) as well as under sec. 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) as amended by the POCSO Amendment Act, 2019 on the ground that the victim's statement is not of sterling quality and is not corroborated by other evidence. It is argued that there is no evidence to suggest when and where the alleged offence took place. Mr. Namka submitted that the FIR (exhibit-1) was lodged on 2/5/2020 after recording the statement of the victim's mother who stated that she learnt about the incident in the year 2017 which transpired earlier. The mother of the victim, however, deposed before the court that it was in the year 2016 that the incident took place as informed to her. The victim, however, did not give any date or time of the incident and barely stated that the appellant opened her clothes, fondled her breasts and committed penetrative sexual assault on her in the dairy. She also deposed about having being raped ten times before without giving any further details. The learned counsel took us through the medical records which reflect that since the victim was unable to speak history could not be elicited. He also took us through the depositions of PW-8 - a Social Worker of the District Children Protection Unit (DCPU) and PW-10 - an Outreach Worker under the DCPU. Both the witnesses deposed that the victim was uncommunicative and did not communicate much. However, the same victim is said to have narrated the story before the learned Magistrate as well as in Court. It was further argued that the entire case of the prosecution sans the cryptic deposition of the victim is based on hearsay evidence which is not acceptable. It is argued that the FIR (exhibit-1) is based on a statement of the mother (PW-1) of the victim, according to which, she was informed about the incident by two ladies PW-11 and another who was not examined by the prosecution. PW-11, however, candidly admitted that she did not have any personal knowledge about the incident and did not depose or corroborate the statement of the mother (PW-1) of the victim about the fact that she had informed her of what the victim had disclosed to her.

(2.) The learned Public Prosecutor on the other hand supported the impugned judgment and submitted that in cases like this where the victim suffers from certain disabilities it is incumbent upon the court to examine the evidence considering the social circumstances of the victim and of the area in which the crime has been committed. The stand of the father (PW-7) of the victim that since they had already settled the matter involving the victim and the appellant many years ago, he did not have anything to say about the incident reflects his indifferent attitude towards the victim who is voiceless in such circumstances. It is submitted that the victim's deposition has not been demolished by the defence and as such the presumptions under the POCSO would be available in favour of the victim. While replying to the argument of Mr. Namka, the learned Additional Advocate General took us once again to the deposition of the mother of the victim and pointed out that her deposition was based on the direct evidence of the victim and not hearsay as suggested. Since, the victim had deposed about the incident clearly, the statement of the mother of the victim to that extent cannot be termed hearsay. She also drew attention to the deposition of PW-15 who deposed about the meeting in the victim's house which was attended by a number of people from the village as well as the accused and the victim with their family members and relatives. PW-15 deposed that he heard the appellant deny the allegation but stated that in case the victim got pregnant, he would take the responsibility. It is argued that there was no reason for the appellant to take responsibility in case the victim got pregnant had he not committed the offence. The learned Additional Advocate General relied upon the judgment of the Supreme Court in Phool Singh vs. State of Madhya Pradesh (2022) 2 SCC 74 and drew the attention of this court to paragraph 5.3 thereof which is the submission of the learned counsel for the state based on what was held by the Supreme Court in State (NCT of Delhi) vs. Pankaj Chaudhary (2019) 11 SCC 575. It was held that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence and that there is no rule or practice that the evidence of the prosecutrix cannot be relied upon without corroboration.

(3.) 17 witnesses were examined by the prosecution. The defence did not lead any evidence after the examination of the appellant under sec. 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.). The impugned judgment was delivered on 11/10/2021. It was held that the statement of the victim that whenever she used to be alone at home the appellant used to have forcible penetrative sex with her and that he did it several times, as well as the allegation, that he raped her in the dairy and at home was sufficient to prove that he had committed the offence on more than one occasion. Although, the learned Special Judge noticed the apparent lapse on the part of the investigating agency of not producing an important witness, it did not deter her in holding the appellant guilty as bad investigation was no ground for acquittal. The argument of the defence that the allegation of rape was cast upon the appellant due to the relationship he had with the victim's mother was dispelled by the learned Special Judge as in her opinion the argument was farfetched. She opined that even if they had a love affair no mother would stake the reputation of a family at the cost of her minor girl child and that too as one such as the present victim, with her unfortunate ailments/condition merely on account of a soured relationship or to get even with the accused. The learned Special Judge noticed that the mother of the victim had failed to report the matter at the appropriate time and in fact settled it. She held that it would have remained unknown to the police had it not been the prompt action of the DCPU. The learned Special Judge held that once it is established that the victim is a child as defined under sec. 2(1)(d) of the POCSO then Sec. 29 and 30 come into play and as nothing contrary has been put up by the defence, presumption can be drawn against the appellant. Thus, the learned Special Judge found the appellant guilty of the offences as charged.