NANDA LALL SANYASI Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Court of the Learned Special Judge (POCSO), West Sikkim, at Gyalshing, vide Judgment dtd. 16/12/2021, in Sessions Trial (POCSO) Case No.12 of 2020, convicted the Appellant under Ss. 376(2)(n), 376(3), 506 of the Indian Penal Code, 1860 (hereinafter, the 'IPC') and under Sec. 6 of the Protection of Children from Sexual Offences Amendment Act, 2019 (hereinafter, the 'POCSO' Act). The Convict was sentenced under Sec. 6 of the POCSO Act to undergo rigorous imprisonment for twenty years, with fine of ? 20,000/- (Rupees twenty thousand) only, for the offence committed under Sec. 5(l) of the POCSO Act, duly invoking Sec. 42 of the POCSO Act as Sec. 6 of the POCSO Act provided for higher penalty than those under Sec. 376(2)(n) and Sec. 376(3) of the IPC. Under Sec. 506 of the IPC, he was sentenced to undergo simple imprisonment for a period of two years with fine of ? 1,000/-(Rupees one thousand) only. The sentences of imprisonment were ordered to run concurrently, setting off the period of imprisonment, in terms of Sec. 428 of the Code of Criminal Procedure, 1973 (hereinafter, the 'Cr.P.C.'). The sentences of fine bore default stipulations.

(2.) Aggrieved thereof, the Appellant is before this Court assailing the Judgment and Order on Sentence. Canvassing the contentions for impugning the Judgment of the Learned Trial Court, the Learned Legal Aid Counsel for the Appellant submitted that, although it was alleged that the incident took place on 8/5/2020, the First Information Report (for short, the 'FIR'), Exhibit 2 was lodged only on 27/5/2020 and the delay of 19 days went unexplained by the Prosecution. That, although the FIR drawn up on Exhibit 19, records that the incident occurred in the midnight of 23/5/2020 and the information was received at the Police Station on 27/5/2020, at 1400 hours, however, the victim, P.W.3 in her evidence did not mention the exact dates of the incident, raising doubts about the veracity of the Prosecution case. The seizure or contents of the Birth Certificate, Exhibit 4, have not been proved neither has P.W.11, the Investigating Officer (I.O.), affixed his signature on the document to indicate that he had seized it. Besides, only one witness to the seizure of Exhibit 4 was produced before the Court, whereas the second witness, one Jiwan Kumar Chettri was not produced leading to an adverse inference against the Prosecution case. The Medical Report, Exhibit 1, of the victim does not reveal sexual assault.

(3.) However, Learned Counsel fairly conceded that Exhibit 8, the School Admission Register indicating the victim's date of admission to the school and her age and Exhibit 12, the extract of the Register of Births, are genuine documents, thereby indicating that the victim was born on 1/8/2006. It was contrarily urged that, despite the said circumstance, the Registrar of Births and Deaths was not summoned as witness by the Prosecution to prove the contents of Exhibit 12. The evidence of P.W.5, the wife of the Appellant reveals that the victim's father and the Appellant had acrimonious relations, which is asserted by the Appellant in his Sec. 313 Cr.P.C. statement, in his responses to Question Nos.32 and 35. That, the Appellant is the landlord of the victim's father, P.W.2 and the entire case is based upon the fact that P.W.2, as the Appellant's tenant failed to pay the requisite house rent. That, in fact no offence was committed by the Appellant and hence, he deserves an acquittal from all the charges against him.