STATE OF SIKKIM Vs. LALL BAHADUR RAI

JUDGEMENT

(1.) The State-Appellant is aggrieved by the acquittal of the Respondent by the Court of the Learned Special Judge (POCSO), at Namchi, Sikkim, vide Judgment dtd. 29/11/2022, in Sessions Trial (POCSO) Case No.19 of 2019 (State of Sikkim vs. Lall Bahadur Rai), under Sec. 9(m) and Sec. 9(n), both offences being punishable under Sec. 10 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, the 'POCSO Act') and under Sec. 354 of the Indian Penal Code, 1860 (hereinafter, the 'IPC').

(2.) The Learned Trial Court while acquitting the Respondent of the offences charged with, was loathe to rely on the evidence of PW-1 the victim, PW-2 the step father of the victim, PW-3 the mother of the victim and PW-6 Staff of a Child Care Institution (CCI). The following reasons weighed with the Learned Trial Court while acquitting the Respondent/Accused. PW-1 who deposed that the Respondent touched her vagina, did not remember the date, month or year of the incident neither did PW-2, her step father or PW-3 her mother, who in her evidence before the Court deposed that, the incident had occurred two years prior to the recording of her evidence before the Court. The Court reasoned that, as PW-3 was examined on 8/4/2021, the incident could be presumed to have occurred sometime during 2019, but PW-2 had lodged Ext-2 on 20/12/2018 and contrarily deposed that the incident occurred during 2019. The Court observed that there was no corroboration with regard to the time lines of the incident or the lodging of the FIR. PW-2 deposed that he was informed by the victim in 2019 that the Respondent had fondled her 'private part" but under cross-examination denied knowledge about the incident or of the victim having narrated it to him. That, he lodged Ext-2 on being asked by one Gopal Rai, to do so who however was not furnished as a Prosecution witness, depriving the Court of the benefit of the latter's evidence. As per PW-6 a staff of the CCI, she went with her team to the house of PW-1 after receiving a call in the Helpline number in December 2018, where PW-1 narrated the incident of sexual assault to her following which PW-6 accompanied PW-2 to lodge the FIR. The Court observed that PW-6 made no mention of who she had received the call from or who her team comprised of nor did she mention the presence of any Gopal Rai at the Police Station. The Court was of the view that the above contradictions in the evidence of PW-1, PW-2, PW-3 and PW-6 with regard to the lodging of Ext-2 and the incident was 'confusing' and that lodging of Ext-2 did not lend credence to the case of the Prosecution. That, PW-2 had handed over Ext-4, the victim's original birth certificate to the Police but under cross-examination denied knowledge of the victim's actual date of birth. The Court however concluded that the victim was below twelve years, taking recourse to Ext-6, entry of the victim's date of birth in the school admission register and Ext-13 viz; certification that victim's date of birth was found in Ext-14, the relevant Birth Register of the Primary Health Centre and identified by PW-9. That, the victim in her statement under Sec. 164 Code of Criminal Procedure, 1973 (hereinafter, the 'Cr.P.C.') stated that during the relevant time she was playing with her brother, the Court observed that the place of occurrence according to PW-2 was a busy thoroughfare. That, PW-3 their mother stated that PW-1 was playing with her minor brother in the courtyard of her house, while PW-3 was working in a nearby field and could hear the voices of her children. When she failed to hear them, she returned home and saw PW-1 on the lap of the Respondent but during cross-examination PW-3 deposed that, she did not witness the incident. That, the cross-examination of the victim revealed that the Respondent loved them both, raising the possibility of the victim having been tutored as she was only 8 - 9 years old at the relevant time. The younger brother of PW-1 was not arraigned as a witness nor examined by the Prosecution. PW-7, the Station House Officer who registered Ext-2 mentioned that the FIR was lodged three days after the incident but his evidence did not indicate whether PW-2 was accompanied by PW-6 or Gopal Rai to the Police Station. The evidence of PW-9 the doctor, who examined PW-1 and the Respondent did not support the Prosecution case and PW-11 had merely conducted the investigation. That, the presumption under Sec. 29 of the POCSO Act could not be shifted to the Respondent as held by this Court and the Hon'ble Supreme Court of India. The Court also found that though the Prosecution examined eleven witnesses, there was no evidence worthy of consideration and the possibility thereby of false implication could not be ruled out, hence the Court acquitted the Respondent.

(3.) Learned Additional Public Prosecutor opening his arguments for the State-Appellant contended that at the time of the offence PW-1 was eight years old while the Respondent was fifty. That, there is no opposition to the finding regarding the age of the victim. The FIR, Ext-2 was lodged on 20/12/2018 by PW-2, where he has categorically complained that his eight year old daughter was sexually assaulted by the Respondent. Pursuant thereto, the statement of PW-1 under Sec. 164 of the Cr.P.C. was recorded on 28/12/2018 and her statement before the Court was recorded almost a year later. Despite the lapse in time, the evidence regarding the incident of sexual assault perpetrated on her by the Respondent stood the test of cross-examination. The Learned Trial Court without basis or enumerating reasons for her opinion assumed that the child could have been tutored but failed to examine and consider that her statement under Sec. 164 Cr.P.C. and her deposition before the Court corroborated each other and had withstood the cross-examination. That, PW-2 and PW-3 had corroborated the victim's statement with regard to the occurrence of the incident. That, minor discrepancies that may have arisen in the deposition of PW-2 pertaining to the date of the incident most likely occurred on account of PW-2 being a rustic farmer and lacking education but the case of sexual assault was not decimated by such discrepancy and stood on the bedrock of the victim's evidence. That, the Prosecution case of sexual assault has been established and mere delay in the lodging of Ext-2 was not fatal to the Prosecution case. The Learned Trial Court was thus in error in having acquitted the Respondent. Reliance was placed on Tshering Thendup Bhutia vs. State of Sikkim 2024 SCC OnLine Sikk 33 and State of Sikkim vs.Pintso Bhutia 2023 SCC OnLine Sikk 41 of this Court to buttress his submissions.