PEMA TSHERING LEPCHA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The facts of the Prosecution case are that, on 31/3/2022, Exhibit P-1/PW-1, a Complaint was lodged by PW-1, the teacher of the school, where the victim, PW-6 was a Class VIII student. According to PW-1, she was informed by PW-6 that the Appellant had sexually harassed her on 29/3/2022 at around 03.00 p.m. at her residence, by touching her body and breasts. PW-1 then informed the Principal of the school, PW-2 and also lodged Exhibit P1/PW-1. Pursuant thereto, the criminal justice system was set into motion by registration of the case against the Appellant under Sec. 8 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, the "POCSO Act"). Investigation by the Investigating Officer (I.O.), PW-15, found prima facie materials against the Appellant under Sec. 354 of the Indian Penal Code, 1860 (hereinafter, the "IPC"), read with Sec. 10 of the POCSO Act. Charge-Sheet was submitted before the Court of the Learned Special Judge (POCSO Act), North Sikkim, at Mangan. The Learned Trial Court framed charge against the Appellant under Sec. 9(l) of the POCSO Act, punishable under Sec. 10 of the same Act and under Sec. 354 of the IPC. The Appellant sought a trial after entering a plea of "not guilty" to the charges. Fifteen witnesses furnished by the Prosecution, including the I.O. of the case were examined and thereafter the Appellant was examined under Sec. 313 of the Code of Criminal Procedure, 1973 (hereinafter, the "Cr.P.C."). Pertinently, after the final hearing was concluded the Learned Trial Court added a charge against the Appellant under Sec. 354B of the IPC, by invoking its powers under Sec. 216 of the Cr.P.C. On being satisfied that no prejudice was caused to either party and both parties having raised no objection to such addition, the charge under Sec. 354B of the IPC was read over to the Appellant to which he again pleaded innocence and claimed trial. The Learned Trial Court on analyzing the entire evidence on record concluded that the Prosecution had proved its case beyond a reasonable doubt against the Appellant, under Sec. 354 and Sec. 354B of the IPC and convicted him accordingly. The Appellant was however acquitted of the offence under Sec. 9(l) of the POCSO Act, punishable under Sec. 10 of the same Act on the age of minority of the victim not being proved, vide its Judgment, dtd. 5/8/2022, in Sessions Trial (POCSO Act) Case No.08 of 2022 (State of Sikkim vs. Pema Tshering Lepcha @ Mikmar). By the Order on Sentence of the same date, the Appellant was sentenced to undergo simple imprisonment for a period of one year under Sec. 354 of the IPC and to pay a fine of Rs.500.00(Rupees five hundred) only. For the offence under Sec. 354B of the IPC, he was sentenced to undergo simple imprisonment for a period of three years and to pay a fine of Rs.1,000.00(Rupees five hundred) only. Both sentences of fine bore default clauses of imprisonment and the period of incarceration were ordered to run concurrently. The fine, if recovered, was ordered to be paid as compensation to the minor victim.

(2.) Aggrieved by the Judgment and the Order on Sentence, the Appellant is before this Court urging that, the charge under Sec. 354B of the IPC was added rather belatedly when the stage was for pronouncement of Judgment with no opportunity afforded to the Appellant to cross-examine the Prosecution witnesses on the added charge. The charge under Sec. 354B of the IPC pertains specifically to disrobing of the victim by the Appellant. An opportunity ought to have been extended to the Appellant to defend himself on the fresh charge, in the absence of which, he is prejudiced having been sentenced to suffer a longer period of imprisonment under Sec. 354B of the IPC without having defended himself for the charge added by the Learned Trial Court. Hence, the impugned Judgment be set aside and the Appellant be acquitted of the charges framed against him.

(3.) Learned Additional Public Prosecutor for the State-Respondent, while contesting the arguments advanced by Learned Counsel for the Appellant, contended that Sec. 216 of the Cr.P.C. can be invoked any time during the trial by the Learned Trial Court. That, so far as the allegation of prejudice caused to the Appellant is concerned, it is evident that the charge framed for the first time under Sec. 9(l) of the POCSO Act detailed the offence committed by the Appellant, viz.; that in the guise of teaching her how to cut flowers he had lifted her in his arms, taken her inside the store room, where he touched her breasts, kissed her on her arms and neck and then tried to pull down her trousers as well as his own trousers. Thus, when the evidence was led by the Prosecution the Appellant had sufficient notice of the fact that the charge also included use of force against the victim with intent to disrobe her and the Appellant had put up his defence accordingly during cross-examination. That, the Judgment and Order on Sentence being legally sound and having caused no prejudice to the Appellant ought not to be disturbed.