BINAY TAMANG Vs. STATE OF SIKKIM

JUDGEMENT

(1.) (i). By filing this Appeal, the Judgment of the Learned Special Judge (POCSO), West Sikkim, at Gyalshing, dated 07-10- 2021, in ST (POCSO) Case No.08 of 2020 (State of Sikkim v. Binay Tamang), is being assailed. The Learned Trial Court convicted the Appellant of the offence under Ss. 376(2)(f), 376(2)(n) and 376(3) of the Indian Penal Code, 1860 (for short "IPC") and under Ss. 5(j)(ii), 5(l) and 5(n) of the Protection of Children from Sexual Offences Act, 2012 (for short, "POCSO Act, 2012") punishable under Sec. 6 of the Protection of Children from Sexual Offences (Amendment) Act, 2019 (for short "POCSO Amendment Act, 2019").

(2.) The matter has its genesis in the FIR, Exhibit 8, dtd. 11/2/2020 lodged by P.W.5, Dr. Geeta Rai, in-charge of the concerned Public Health Centre (PHC), informing the Officer-in- Charge of the jurisdictional Police Station, that the minor victim, P.W.4, 13 years of age, had been brought to the PHC with a complaint of having missed her period (menstrual cycle). On examination, she was found to be pregnant. Based on the said information, FIR No.02/20, dtd. 11/2/2020, was registered against the Appellant, aged 39 years and taken up for investigation. On completion of investigation, Charge-Sheet was submitted against the Appellant under Ss. 376(2)(f), 376(2)(n) and 376(3) of the IPC and, under Ss. 5(j)(ii), 5(l) and 5(n) of the POCSO Act, 2012 punishable under Sec. 6 of the POCSO Amendment Act, 2019. The Learned Trial Court took cognizance of the offences and framed Charges against the Appellant under the above-mentioned Ss. . The Prosecution examined fifteen witnesses. Following the closure of the Prosecution evidence, the Appellant was examined under Sec. 313 Cr.P.C. and his responses recorded. In his defence he claimed that he had been a paying guest in the house of the victim, paying a rent of Rs.1,500.00 (Rupees one thousand and five hundred) only. He was not married to the victim's mother and when he wanted to return home she had told him she would see how he would do so. The Learned Trial Court on consideration of the evidence, pronounced both the impugned Judgment of Conviction and Order on Sentence.

(3.) (i). Assailing both before this Court, Learned Counsel for the Appellant in the first prong of his arguments contended that the opinion of the Expert stating that the DNA of the fetus matched the DNA of the Appellant is beset with suspicion as the extraction of the blood samples of the Appellant, the victim and the fetus and the chain of safe custody thereof has not been detailed by the Prosecution. Exhibit 15 is the requisition dtd. 19/3/2020 for extraction of the Appellant's blood sample for DNA analysis but records do not reveal as to who the blood sample was handed over to by the Doctor who extracted it, apart from which there were no independent witnesses who saw the extraction or the containers in which the samples were kept. Similarly, vide Exhibit 17, the Investigating Officer (hereinafter, I.O.), P.W.15 made a requisition, dtd. 5/3/2020, for extraction of blood sample of the victim, but the records do not indicate who received the extracted sample. As per the I.O. vide Exhibit 33 the blood samples collected from the Appellant, the victim and the fetus of the victim were forwarded to the Centre for DNA Fingerprinting and Diagnostics (CDFD), Hyderabad, Telengana, but records are devoid of the date of such forwarding, neither is there any evidence to show that the I.O. sealed the alleged samples, thus rendering the root of the Prosecution story suspicious.