KISHORE GURUNG Vs. STATE OF SIKKIM

JUDGEMENT

(1.) By its Judgment dtd. 31/5/2022, in Sessions Trial (POCSO) Case No.36 of 2018, the Learned Trial Court convicted the Appellant under Sec. 3(a)/4 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act'). On the same date, he was sentenced to undergo simple imprisonment for a period of 10 years and to pay a fine of ? 10,000/- (Rupees ten thousand) only. The sentence of fine bore a default clause of imprisonment and set off the period of imprisonment undergone during trial. He was however acquitted of the offence under Sec. 5(j)(ii)/6 of the POCSO Act. Aggrieved, the Appellant now assails both the Judgment of Conviction and the Order on Sentence.

(2.) The victim, P.W.1, aged about 16 years, lodged Exhibit 1, the FIR before the concerned Police Station on 10/8/2018, at 1650 hours, informing that, on 1/1/2018 she and her friend had gone on a picnic to Gangtok. As it was late in the evening, her friend (hereinafter, 'S') telephonically called her friend to drop them home, he arrived at 'Jalipool' where they had awaited him, accompanied by another boy. Both boys suggested that all four of them spend the night together. 'S' was agreeable to the proposition despite the insistence of the Prosecutrix to return home. 'S' and her boyfriend slept on one bed while the Prosecutrix slept in another bed. At night, one 'Sudesh Rai' forcibly sexually assaulted her. After the incident, she did not meet him, however she stopped menstruating. On 10/8/2018, two of her teachers, P.W.4 and P.W.5, took her to the Hospital for a medical check-up where she was found to be pregnant. Thereafter, the Doctor forwarded her to the Police Station with two personnel from the 'Child Care', hence she sought legal action against the said 'Sudesh Rai'.

(3.) In the arguments advanced by Learned Senior Counsel for the Appellant it was contended that the FIR was lodged against one 'Sudesh Rai', but the trial proceeded against 'Kishore Gurung' with no reasons put forth by the Prosecution as to how both were identified by them to be one and the same person. That, the Learned Trial Court had concluded that the Appellant was the perpetrator of the offence sans Test Identification Parade (for short, 'TI Parade') and chose to rely on the evidence of the victim who had deposed that the actual name of the Appellant was 'Kishore Gurung' and not 'Sudesh Rai' although she admitted to having learnt of it from the police sources. It was urged that it was at the behest of the Police that the victim identified the Appellant as the perpetrator and it was not her independent identification. That, the Trial Court erroneously observed that identification of the Appellant even after about one year and three months of the alleged incident could not be doubted as the victim and the Appellant spent one whole night in the room. That, in Exhibit 1, the Prosecutrix had informed that all of them slept in one room and she occupied one bed separately, contrarily in her deposition before the Court, she stated that the accused came and slept with her while his friend slept with 'S'. That, again contrary to the above statements, in her Sec. 164 Cr.P.C. statement, the victim had stated that 'S' and her boyfriend went to one room and she was given one extra room where she slept, thus conjuring up one room suddenly. That, 'Sudesh Rai' came to her room after parking the vehicle and forcibly removed her clothes and sexually assaulted her. This allegation also found no place either in the FIR or in her Sec. 164 Cr.P.C. statement. That, in light of the foregoing contradictions in her statements, the victim's evidence is unreliable.