PHURBA LEPCHA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Prosecution case that has led to the instant appeal is that, on 25/6/2021, Exhibit P-6/PW-6, the FIR was lodged by the Station House Officer of the concerned Police Station before the Learned Chief Judicial Magistrate, informing that when investigation was underway in another POCSO case (PS Case No.12 of 2021 dtd. 17/6/2021) where the Appellant had sexually assaulted a minor victim (PW-1 herein), the latter revealed that the Appellant had also inserted his genital into the mouth and anus of his younger sister. On such revelation, the minor victim PW-1 and his mother PW-4 were examined. It transpired that, the Appellant had come to their residence in an inebriated condition at about 9 p.m. on a particular day, three weeks prior to the lodging of the FIR (Exhibit P6/PW-6). PW-4 was cooking dinner with her husband PW-5, when the Appellant offered to help put their daughter, aged about three and half years, to sleep. PW-1 the brother, followed the Appellant and his sister to the room and witnessed the Appellant committing the aforesaid act. That, the minor victim reportedly cried out in pain upon which the couple rushed to their room where PW-1 narrated the incident to them. Although PW-4 attempted to strike the Appellant, PW-5 restrained her. An FIR dtd. 25/6/2021 under Sec. 377 of the Indian Penal Code, 1860 (hereinafter, 'IPC') read with Ss. 4/6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, 'POCSO Act') was registered against the Appellant and endorsed to PW-7 for investigation, on completion of which Charge-Sheet was filed against the Appellant under the aforementioned Ss. .

(2.) The Learned Special Judge (POCSO Act, 2012), East Sikkim, at Gangtok, framed Charge against the Appellant under Sec. 5(m)/6 of the POCSO Act, Sec. 5(l)/6 of the POCSO Act, Sec. 376AB of the IPC, Sec. 376(2)(n) of the IPC and Sec. 377 of the IPC. On closure of the evidence of the seven Prosecution witnesses, the Appellant was examined under Sec. 313 of the Code of Criminal Procedure, 1973 (hereinafter, 'Cr.P.C.'), and the opposing arguments of the Learned Counsel for the parties heard. Analysing the evidence on record, the impugned Judgment was pronounced convicting the Appellant under Sec. 5(m) punishable under Sec. 6 of the POCSO Act. He was sentenced to undergo rigorous imprisonment for twenty years and to pay a fine of ? 5,000/- (Rupees five thousand), only, with a default stipulation of incarceration. He was acquitted of the charges under Ss. 376AB, 376(2)(n) and 377 of the IPC.

(3.) Assailing the Judgment and Order on Sentence, it was submitted by Learned Counsel for the Appellant that the case came to light only on account of the statement of PW-1 made in relation to a criminal case in which he was the victim and the perpetrator was the same Appellant. Although it is the Prosecution case that the infant, who was the victim, cried out when the Appellant inserted his genital into her mouth and anus and the parents PWs 4 and 5 came running to the scene of the incident, no FIR was lodged by them at the relevant time. That, PW-1 in his evidence has merely stated that the Appellant had inserted his fingers into the anus of the infant, however PW-4 has said that PW-1 told her that the Appellant had removed their daughter's frock, rubbed his hands all over her body and that the victim was bleeding from her vagina. When PW-4 went into the room she found her child in a state of panic while the Appellant had already left the room. That, the evidence of PW-4 and PW-1 do not corroborate. On the other hand, PW-5 stated that the Appellant had touched and played with their daughter's genital. Consequently, in the absence of consistency in the Prosecution case, the Appellant deserves an acquittal.