RAMESH RAI Vs. STATE OF SIKKIM

JUDGEMENT

(1.) Once again the prospect of determining an Appeal where the allegation is of an adult having sexually assaulted a minor girl child, aged about twelve years, stares us in the face, leading us to mull over moral turpitude and moral decadence in our society.

(2.) On 22/4/2020, the concerned Childline, through a source, received information that a child (PW-1) had been sexually assaulted by her stepfather. The team member of the Childline (PW-9) went to the area for verification and found that the minor child had been sexually assaulted by the Appellant. During counselling, the victim PW-1, revealed that the Appellant had been sexually assaulting her since a year ago but the incidents remained undisclosed by her, to her family members, due to fear of dire reprisal held out by the Appellant to the victim, should she reveal the acts perpetrated on her by him. On the night of 21/4/2020, when the child complained of sudden pain and began to cry, her mother PW-3, enquired of her as to the reason for her crying, whereby she narrated the ordeal of her being subjected to sexual assault by the Appellant, her stepfather since a year back. Consequently, Exbt P-4/PW-9 the FIR, came to be lodged by PW-9 at the concerned Police Station. Investigation was endorsed to PW-13 the Investigating Officer (IO), after the registration of the FIR on the same day, under Sec. 376 of the Indian Penal Code, 1860 (hereinafter, the "IPC"), read with Sec. 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, the "POCSO Act"), against the Appellant. On completion of the investigation, Charge-Sheet was submitted against the Appellant under Sec. 376 of the IPC read with Sec. 6 of the POCSO Act by the IO, who on his investigation found that the Appellant had been sexually assaulting the minor as alleged. The facts as stated in Exbt P-4/PW-9 is the crux of the Prosecution case. The Appellant at the time of the incident was around 45 years of age.

(3.) Learned Counsel for the Appellant advanced the contention that in the first instance the Charge under Sec. 5(m) of the POCSO Act would not sustain against the Appellant as the Prosecution evidence itself had established that she was aged about 14 to 15.5 years at the time of the alleged incident. That, PW-6 Consultant Radiologist-cum-Head of Department, Radiology Department, vouched for the same, which was duly considered by the Trial Court. Hence, the Charge and conviction handed out by the Trial Court under Sec. 5(m) of the POCSO Act is erroneous. That, as far as the offence under Sec. 5(n) of the POCSO Act is concerned, it was conceded that the Appellant is the stepfather of the child, having been married to her mother, however it was asserted that there was no Prosecution evidence to prove that "penetrative" sexual assault had been perpetrated, by the Appellant, on the victim. Such allegation was not made in Exbt P- 4/PW-9 nor did the medical examination of the victim Exbt P-3/PW- 8 allude to such a circumstance. Besides, admittedly the parents and the victim shared a single bedroom where such acts would have been an impossibility. Hence, the offence of penetrative sexual assault not having been proved, the Trial Court was in error in having convicted the Appellant under Sec. 5(n) of the POCSO Act. Learned Counsel for the Appellant however fairly conceded that sexual assault perpetrated on PW-1 by the Appellant could not be ruled out.