SAK TSHERING LEPCHA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Appellant assails the Judgment, dtd. 28/2/2022, in Sessions Trial (POCSO) Act, Case No.03 of 2021, of the Court of Learned Special Judge (POCSO) Act, at Mangan, North Sikkim, convicting him of the Offence under Sec. 375 of the Indian Penal Code, 1860, (hereinafter, the 'IPC'), punishable under Sec. 376 of the IPC and the consequent Order on Sentence, dtd. 1/3/2022, by which he was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of ?1,000/-(Rupees one thousand) only, with a default clause of imprisonment. He was acquitted of the offence under Ss. 5(j)(ii), 5(n) and 7 of the Protection of Children from Sexual Offences Act, 2012 (for short the 'POCSO Act').

(2.) In Appeal it was the submission of Learned Counsel for the Appellant that, although the victim alleges and has deposed that the Appellant was molesting her sexually over a period of time, however, she did not inform either P.W.1, her aunt or P.W.3, her mother or for that matter her cousins, being the children of the Appellant with whom she was living, raising doubts about the involvement of the Appellant in the alleged offence. On walking this Court through the evidence of P.W.10, the victim, Learned Counsel urged that it is apparent that the victim was an intelligent individual and could well understand the questions put to her and gave rational answers. In such a circumstance, the delay of seventy-three days" in lodging the FIR is unexplained by the Prosecutrix and the Prosecution. That, P.W.1 has specifically stated that P.W.10 exhibited no behavioural changes during the time when she was allegedly being sexually assaulted, hence there were no signs of trauma to indicate sexual assault. P.W.3, the mother of the Prosecutrix who was separated from her husband, revealed that her child used to visit her occasionally at her house but she did not complain to P.W.3 of any sexual assault. P.W.4, the teacher in her school has also deposed that the victim did not inform her of her condition. (i) That, the cross-examination of P.W.1 reveals that the victim in fact had a boyfriend, therefore his role in her alleged sexual assault cannot be ruled out. That, it is only in her evidence before the Court that she stated that she screamed when the incident occurred but she made no such revelation in her statements under Ss. 161 and 164 of the Code of Criminal Procedure, 1973, (hereinafter, the 'Cr.P.C.'). That, P.W.2, who resides on the floor below, on rent, in the same house, never heard any screams from the residence of the Appellant. That, the victim"s evidence being embellished has to be approached with circumspection as she is apparently unreliable. That, although the DNA tests carried out by P.W.15 were inconclusive with regard to the paternity of the fetus, the Prosecution failed to establish even the pregnancy of the Prosecutrix in the absence of evidence of the Doctor, who allegedly conducted the abortion on the victim. Hence, the guilt of the Appellant not having been proved beyond reasonable doubt, the Appeal be allowed.

(3.) Learned Additional Public Prosecutor per contra, contended that the Prosecution has proved its case beyond all reasonable doubt. Refuting the argument pertaining to the alleged boyfriend of P.W.10, it was contended that this is a false narrative of the Appellant who was afforded an opportunity to explain such a circumstance in his examination under Sec. 313 Cr.P.C. but he failed to reveal the identity or the alleged involvement of the alleged boyfriend, who is a figment of his imagination. P.W.1 was told of the incident by P.W.10 and she has corroborated the victim"s statement with regard to the incident. That, although there is no DNA report confirming the involvement of the Appellant or the paternity of the fetus, however, it is clear that the Appellant committed the offence based on the cogent evidence of the victim. The victim being a child and living in the house of her uncle, the perpetrator, fearing adverse penal consequences was unable to narrate the incident to anyone including her parents. For the same reason she was unable to approach the concerned authorities. That, in fact the age of the victim being fourteen years has been unequivocally proved by the evidence of P.W.1, P.W.4, P.W.12 and P.W.13 although the Learned Trial Court was not convinced of it and thereby opted to ignore it and acquit the Appellant of the charges framed under POCSO Act. It was however conceded by Learned Additional Public Prosecutor that the State-Respondent has opted not to assail the finding of the Learned Trial Court pertaining to the age of the victim. That, in light of the grounds advanced the Appeal be disallowed.