DEEPAK CHETTRI Vs. STATE OF SIKKIM

JUDGEMENT

(1.) This Appeal pertains to the sexual assault of a six year old boy child, by a twenty-seven year old man, after alluring the minor with some edibles. The Prosecution case is that the Appellant was working in the house of PW-5, the elder paternal uncle of the victim PW-1, as a domestic help since two months prior to the incident. On the relevant day, the Appellant came to the house of PW-1, with eggs and 'chips' and asked him to accompany the Appellant to the nearby jungle. There, on the pretext of playing some game, the Appellant inserted his genital into the mouth of PW-1. Later, he took him home and told him not to disclose the incident to anyone. PW-1 however told PW-6, his uncle, who paid scant attention. Later, he told PW-2, his mother who in turn informed his father PW-8, which led to the lodging of Ext-2, on 5/8/2020, to the effect that on 3/8/2020, PW-1 disclosed to him that the Appellant took him to a nearby jungle and sexually assaulted him. The Police Station registered a case against the Appellant under Sec. 8 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, the 'POCSO Act'), on the same date and endorsed it to PW-10, the Investigating Officer (IO) for investigation, on completion of which he submitted Charge-Sheet against the Appellant under Sec. 8 of the POCSO Act.

(2.) Charge was framed against the Appellant under Sec. 363 of the Indian Penal Code, 1860 (hereinafter, the 'IPC') and Sec. 3(a)/4 and Sec. 5(l)/6 of the POCSO Act. Ten Prosecution witness came to be examined to establish its case beyond a reasonable doubt. The Learned Trial Court on analysing the evidence before it observed that PW-1 identified the Appellant as the offender, deposed of the way the incident was perpetrated on him in his statement under Sec. 164 of the Code of Criminal Procedure, 1973 (hereinafter, the 'Cr.P.C.') and in his deposition before the Court. That, he could not be said to have been tutored and his evidence inspired the confidence of the Court. That, the Appellant for his part failed to rebut the presumption as provided under Sec. 30 of the POCSO Act. That, no explanation was forthcoming in his response under Sec. 313 of the Cr.P.C. Consequently, the Court of the Learned Special Judge (POCSO Act, 2012), at Namchi, Sikkim, in Sessions Trial (POCSO) Case No.08 of 2021, (State of Sikkim vs. Deepak Chettri), vide its Judgment, dtd. 28/9/2023, convicted the Appellant under Sec. 3(a)/4 of the POCSO Act and sentenced him to undergo simple imprisonment for a period of ten years, the fine imposed was half the earnings that would accrue on his working in the prison, payable to the victim. A default stipulation followed. He was acquitted under Sec. 5(l) of the POCSO Act and Sec. 363 of the IPC.

(3.) Assailing the finding of the Learned Trial Court, Learned Counsel for the Appellant argued that there was a delay in the lodging of the FIR, the offence was allegedly committed on 3/8/2020 but the FIR was lodged only on 5/8/2020, sans explanation for the delay. That, PW-1 in his evidence stated that he told 'O dada', pusai (uncle) and his father about the incident, contrarily PW-2 his mother stated that the victim told her about the incident. That, PW-1 deposed that he was going for his tuition when the incident took place, while PW-2 stated that it was when PW-1 returned from the tuition as told to her by PW-1. Neither 'O dada' nor pusai were listed as Prosecution witnesses to test the veracity of the statements of PW-1. That, the informant of the details in the original school admission register to prove the date of birth of the victim was not examined. In view of the foregoing anomalies, the Prosecution case deserves a dismissal and the Appellant an acquittal.