STATE OF SIKKIM Vs. PINTSO BHUTIA

JUDGEMENT

(1.) The question that falls for determination before this Court is; Whether the impugned Judgment, dtd. 27/4/2021, in Sessions Trial (POCSO) Case No.10 of 2018, of the Learned Special Judge (POCSO), East Sikkim, at Gangtok, acquitting the Accused/Respondent can be said to be perverse, the word 'perverse' meaning 'against the weight of evidence".

(2.) Learned Additional Public Prosecutor for the State-Appellant canvassed the contention that the victim at the relevant time was 10 years old, while the Respondent was a married man, aged about 39 years and had children. The date of offence was 17/12/2017 and the FIR came to be lodged immediately on 18/12/2017, after the victim confided in her mother about the sexual assault. That, the victim has unwaveringly stated in her evidence before the Court and also in her Sec. 164 Cr.P.C. statement that the Respondent had pinched her right breast and as it caused her pain, she got up from the bed and went outside the room. On returning to her home that day she narrated the incident to her mother. She was then taken to the Police Station by her mother and P.W.1. Thereafter, P.W.11, the Doctor examined the victim and found pain and tenderness on the victim's right breast, which was recorded by her in Exhibit 7. That, P.W.8, the Childline Team Member, corroborated the evidence of the victim, to the effect that, she was told by P.W.3 that the Respondent had inserted his hand inside her clothing and pinched her breast, while she was watching videos at the residence of her relative on the relevant morning. She showed her the pinch mark on one of her breasts". That, P.W.4, the victim's mother also corroborated the statement of P.W.3 to the effect that, her daughter had narrated to her that the Respondent had pinched her on her breast and had tried to insert his hand on her private part. The mother had also removed the jumper which the victim was wearing and found that one of her breasts" was swollen, the evidence of the P.W.3, P.Ws 4, 8, 11 and 15, the I.O., are all corroborative. That, in Sunil Kumar Sambhudayal Gupta (Dr.) and Others vs. State of Maharashtra (2010) 13 SCC 657, it was held that the evidence of the victim is sufficient to convict the Respondent. Hence, the impugned Judgment of acquittal be set aside and the Respondent be convicted of the offence under Sec. 9(m) of the POCSO Act.

(3.) The arguments in contra raised by Learned Legal Aid Counsel for the Respondent was that the victim and the Respondent were not alone in the room when the act was allegedly committed. One Kumar Tamang who had spent the night in the same house was not examined by the Prosecution, leading to an adverse inference against the Prosecution case. That, there are inconsistencies in the statement of the victim, P.W.3, P.Ws 1 and 4, as P.Ws 1 and 4, have stated that the Respondent attempted to rape P.W.3, while P.W.3 herself has made no such allegation and only speaks of the Respondent pinching her breast. There are anomalies with regard to which breast was pinched since P.W.11, the Doctor, has stated that there was pain and tenderness present on the victim's right breast, which P.W.3 confirmed in her Sec. 164 Cr.P.C. statement, but contrarily in Court said it was the left one. That, P.W.11, in her cross-examination deposed that, breast tenderness could be due to hormonal changes and there were no external injuries on the body of the victim. P.W.8 could not state on which side the breast was swollen. P.W.13, the house owner has stated that nothing untoward happened in her house that night and neither did the Respondent commit any offence in her house. Hence, the impugned Judgment warrants no interference and the Appeal be dismissed.