DEWMAN SUBBA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The instant appeal pertains to the sodomy of PW-4, the victim, aged about ten years, by the Accused-Appellant, then aged about thirty-nine years. The FIR, Exbt 2, was lodged on 9/2/2021 by PW-3, the victim's father, informing therein that the Appellant had inserted his penis into the mouth and anus of the child, PW-4, during January, 2021. PW-5 his wife, informed PW-4 of the acts of sexual assault. The Complainant then verified it from the victim who had affirmed the fact to him. The incidents occurred in the month of January, 2021 and had been perpetrated on the victim around eight times. The FIR came to be registered against the Appellant under Ss. 4 and 7 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, 'POCSO Act, 2012') and Sec. 377 of the Indian Penal Code, 1860 (hereinafter, 'IPC'). Investigation was endorsed to PW-14, the Investigating Officer (IO) of the case, who on completion thereof filed Charge-Sheet against the Appellant under Ss. 4 and 7 of the POCSO Act, 2012 read with Ss. 377 and 506 of the IPC. The Learned Special Judge, POCSO, framed Charge against the Appellant under Sec. 377 of the IPC and Ss. 5(l) and 5(m) of the POCSO Act, 2012, both offences punishable under Sec. 6 of the Protection of Children from Sexual Offences (Amendment) Act, 2019 (hereinafter, 'POCSO Act, 2019') and also under Sec. 506 of the IPC. On a plea of 'not guilty' by the Appellant, the trial commenced with the examination of fourteen witnesses.

(2.) While assailing the Judgment and Order on Sentence, Learned Counsel for the Appellant contended that in the first instance the Prosecution allegation is that the incident occurred on 4/2/2021 and the medical examination of PW-4 took place on 9/2/2021, but PW-13 the Doctor failed to trace any injuries around the anal region of the victim. The last incident is said to have occurred in a room on a bed, but PW-14 the IO did not seize the bed sheet which could have shed light as to whether sexual assault indeed occured. That, contradictions were found in the Sec. 164 of the Code of Criminal Procedure, 1973 (hereinafter, 'Cr.P.C.') statement of PW-4 and his deposition in Court, as in the former he stated that during the acts of sexual assault the Appellant would seize him by his throat and gag him, however during cross-examination he admitted that, the Appellant did not muffle his cries or close his mouth and he did not scream during the said incidents. In the absence of medical evidence and the vacillating statements of the victim rendering them unreliable, the Appellant deserves an acquittal. Hence, the impugned Judgment and Order on Sentence be set aside.

(3.) Learned Additional Public Prosecutor contesting the arguments advanced by Learned Counsel for the Appellant stated that the victim's evidence was coherent and believable with regard to the sexual assault perpetrated on him. The evidence of PW-6 and the victim's parents PWs 3 and 5 corroborated the evidence of the victim. The impugned Judgment of conviction and Order on Sentence were therefore reasoned and brooked no interference.