BED PRAKASH ADHIKARI Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The victim was a six year old child when she was sexually assaulted by the Appellant, who resided near the government residential quarters of the victim and her family. On 26/4/2023, the FIR Exhibit P4/PW-2, was lodged by PW-2, the Counsellor of the District Child Protection Unit (DCPU), before the concerned Police Station, informing therein that the child aged about ten years had been brought that day to her office, by PW-4 her mother, for counselling. The child PW-1 revealed that in the year 2018-2019, when she was playing outside her home, the Appellant called her to him, put her on his lap, facing away from him, caressed her and while she was still on his lap made some movements. He then turned her to face him and she felt a thrust inside her vagina, as he moved, while she was on his lap. The FIR also revealed that according to the victim she had also been sexually assaulted by a person named Lalit Subba in 2019. She did not disclose the incident to anyone but complained of frequent urinary infection. Before lodging the FIR she had participated in Taekwondo in school, upon which she had excess vaginal white discharge and thereafter revealed the incident of sexual assault to her mother, who took her to PW-2, for counselling.

(2.) Learned Counsel for the Appellant contended that the Prosecution case must fail for the reason that the FIR was lodged after a delay of 4/5 years of the alleged incident with no reasons having been furnished for the delay. Reliance was placed on Makraj Limboo v. State of Sikkim, 2019 SCC OnLine Sikk 220.State of Andhra Pradesh v. M. Madhusudhan Rao, (2008) 15 SCC 582. Bhaiyamiyan alias Jardar Khan v. State of Madhya Pradesh, 2011 Cri LJ 3577 (SC). State of Karnataka v. Mapilla P.P. Soopi, 2004 Cri LJ 44 (SC). to fortify his argument. In the second leg of his arguments, Learned Counsel contended that the victim did not raise any alarm neither did she inform her mother of the sexual assault after its occurrence. There is no evidence to indicate that after such sexual assault she became unconscious, did not sleep or was even taken to the Doctor. She continued to be a regular student and did not remain absent from the school. That, strangely the incident came to light only in April, 2023, when she allegedly had excess vaginal white discharge and informed her mother of it and of the incident. That, the identification of the Appellant is also not reliable as PW-4 did not name him in her Sec. 161 Cr. P.C. statement and did so only in her evidence in Court. The medical report Exhibit P-10/PW-6 of the victim, fails to establish any sexual assault. The counselling report of the Complainant is not on the records and in all likelihood PW-1 was tutored by the Counsellor PW-2 to depose against the Appellant. Exhibit P4/PW-2 alleges that the Appellant resided in government quarters which is erroneous as he was living in the rented house of DW-3 who has deposed as much. DW-1 has stated that the Appellant was a "programme vehicle driver" and not an "ambulance driver" as alleged in the FIR. As the evidence of the Prosecution on the above aspects are erroneous, it cannot be relied on to convict the Appellant. That, the location of the sexual assault alleged to be a drain has not been indicated in the rough sketch map, Exhibit P-24/PW-14. That, there is a discrepancy in the Birth Certificate of the alleged victim. That, the Charge itself is defective being devoid of date, time and place of offence. That, in the said circumstances it is settled law that the decision ought to be in favour of the accused and he ought to be acquitted of all Charges. On this aspect, reliance was placed on State of M.P. v. Bacchudas alias Balram, (2007) 9 SCC 135.

(3.) Per contra, Learned Additional Public Prosecutor stated that, the victim's statement regarding the sexual assault has not been demolished in cross-examination. That, the child was about six years old when the offence was committed and her failure to raise a hue and cry was due to her lack of comprehension of the import of the act, after which she started playing with her friends. That, the allegation of strained relationship between the Appellant and PW-4 is a figment of the imagination of the Appellant as both parents of the victim are government servants and financially sound. That, the Supreme Court has time and again reiterated that delay in the lodging of FIR in cases of sexual assault can be disregarded, in view of the sensitivity of the offence and the reluctance of the family to report such matters. Attention in this context was drawn to the decision in Tulshidas Kanolkar v. State of Goa, (2003) 8 SCC 590, That, in State of Himachal Pradesh v. Manga Singh (2019) 16 SCC 759 the Supreme Court has propounded that the sole testimony of the victim can be relied on if it is cogent, consistent and inspires the confidence of the Court. There being no reason to doubt the testimony of the victim, the Judgment of the Learned Trial court requires no interference.