GANESH TAMANG Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Prosecution narrative commences with the lodging of the FIR, Exhibit No.1, on 28/2/2016, at around 1800 hours by PW-3 the victim"s father, informing that on the same date his seventeen year old daughter, PW-1, had been requested by the Appellant to assist him in some chores. That, she went as requested and helped the Appellant to carry manure till 02.00 p.m. The Appellant thereafter took her to a nearby river, for the purpose of carrying stones, at which time he sexually assaulted her by touching her inappropriately. She escaped from the predator"s clutches and called PW-3 on his cell phone at around 04.00 p.m. and informed him of the incident. PW-3 hurriedly reached the house of PW-8, where the victim had taken shelter and took her to the Police Station, where he lodged Exhibit No.1. The Police Station registered a case against the Appellant under Sec. 354 of the Indian Penal Code, 1860 (hereinafter, the 'IPC'), read with Sec. 12 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, the 'POCSO Act') and on the same day endorsed it to PW-10, the Investigating Officer (IO) for investigation. Charge-Sheet consequently came to be submitted against the Appellant under Sec. 354 of the IPC read with Sec. 12 of the POCSO Act, before the Court of Learned Special Judge (POCSO Act, 2012), Gangtok, Sikkim.

(2.) Learned Counsel for the Appellant while advancing multipronged arguments contended that, in the first instance the birth certificate of the victim 'Doc A' is in photocopy and consequently her age has not been proved as per the mandate of law. That, Exbt-4, a photocopy of the relevant portion of the live birth register, reveals the date of birth of the victim as 22/2/1999, however the informant"s name has not been recorded in the document. That, the victim allegedly escaped from the Appellant and ran to the house of PW-8, but no injuries were detected on her person. That, the Learned Trial Court has correctly observed that there are flaws in the investigation as the doko (bamboo basket) in which the collected stones were to be carried was not seized by PW-10, nor photographs of the collected stones taken, which renders the Prosecution story improbable. That, the wife of the Appellant has also not been listed as a Prosecution witness, casting suspicion on the Prosecution case as she had been working alongside the victim for some time. That, in light of the evidence furnished, the Learned Trial Court ought to have acquitted the Appellant. That, accordingly the impugned Judgment and Order on Sentence be set aside.

(3.) Per contra, Learned Public Prosecutor contended that, the victim and her father have categorically deposed that the victim"s date of birth is 22/2/1999 and there was no reason to doubt the veracity of their statements. That, contrary to the submissions of Learned Counsel for the Appellant, one 'G. Pradhan' was the informant in Exbt-4, although, admittedly he was not examined as a Prosecution witness. That, the evidence of PW-1 is consistent, cogent and duly supported by the evidence of PW-6, her co-villager, who deposed that the victim narrated the incident to her. That, the evidence of PWs 3 and 4 also corroborates the evidence of PW-1 regarding the incident which she had narrated to them. That, minor discrepancies with regard to who the victim called first on the phone does not affect the crux of the case pertaining to sexual assault and is irrelevant. Hence, no error arises in the Judgment of conviction of the Learned Trial Court.