STATE OF SIKKIM Vs. PEMA WANGCHUK LEPCHA

JUDGEMENT

(1.) The facts of the case leading to the instant Appeal are that the First Information Report (FIR), Exhibit 4, was lodged by PW-2, the Principal of the school where the victim was studying at the relevant time. It was reported in Exhibit 4 that, on observing PW-1, the victim, a student in the school, she appeared to be in physical discomfort. Accordingly, on the pretext of a medical examination she was taken to the Primary Health Centre (PHC) and made to undergo her urine examination, which tested positive for pregnancy. PW-1 told PW-2 that, on the evening of 15/8/2019 when she was returning home, the Accused/Respondent had physical relations with her in a nearby jungle at around 05.00 p.m. Based on Exhibit 4, a case 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') was registered against the Respondent by the concerned Police Station and taken up for investigation. Finding sufficient prima facie materials against the Respondent, Charge-Sheet was submitted against him under Sec. 376 of the IPC, read with Sec. 6 of the POCSO Act. A supplementary Charge-Sheet was undertaken to be filed pursuant to a DNA test being conducted on the birth of the child which later came to be filed on 26/12/2020.

(2.) The Prosecution case, shorn of irrelevant details is that, the mother of PW-1 having re-married, left for Nepal in January, 2020, leaving PW-1, allegedly 15 years at the time, in the care of her aunt, PW-9. From 3/3/2020 PW-1 attended school. On 5/3/2020 the physical appearance of PW-1 aroused the suspicion of the teachers in the school. On the pretext of administering HPV Vaccine to her, she was taken to the PHC, where on conducting her urine test, she was found to be pregnant. Investigation revealed that, on 15/8/2019 at around 1500 hours the victim while returning home from school after attending the Independence Day function was waiting for a taxi. The taxi driven by the Respondent arrived at the spot where PW-1 was waiting. She boarded it along with PW-11 her friend, PW-6, his wife and daughter. All the other passengers alighted at their destinations before her. En route to her destination, the Respondent took PW-1 to a cave, below the road and sexually assaulted her. Charge-Sheet came to be filed against the Appellant for rape and aggravated penetrative sexual assault. On completion of trial, the Learned Trial Court pronounced the impugned Judgment.

(3.) Aggrieved with such acquittal the State-Appellant is before this Court urging that the clinching evidence of PW-1, leads to the irresistible conclusion that the Respondent had sexually assaulted the victim. Learned Additional Public Prosecutor contended that the victim had deposed that the Respondent had forcibly subjected her to the sexual act on 15/8/2019 which resulted in her pregnancy as revealed by her medical examination. The Respondent again in December, 2019, took her in his vehicle to a PMGSY road, parked the vehicle and committed penetrative sexual assault on her. The evidence of the victim stood undecimated in cross-examination. That, the evidence of a victim of sexual assault, stands at par with the evidence of an injured witness. Reliance on this aspect was placed on Mohd. Imran Khan vs. State Government (Govt. of NCT of Delhi) (2011) 10 SCC 192 and State of Punjab vs.Gurmit Singh and Others (1996) 2 SCC 384. It was further argued that the Prosecution had established that the victim was a minor at the time of offence as proved by Exhibit 1 her Birth Certificate and the well-settled principle of law is that the consent of a minor is no consent. The argument of the Respondent before the Learned Trial Court that he was falsely implicated as medical evidence does not substantiate the Prosecution case is of no avail as the testimony of the victim is reliable and unwavering. Strength was drawn from the decisions in B.C. Deva vs. State of Karnataka (2007) 10 SCC 743 and Sudhansu Sekhar Sahoo vs.State of Orissa (2002) 10 SCC 743. That, the Learned Trial Court in the teeth of the evidence of PW-1, erred in acquitting the Respondent by ignoring the settled position of law that, the testimony of the victim in case of sexual offences is vital requiring no corroboration if it is found credible and the Court should act on the sole testimony of such victim, to convict the Respondent. Hence, the impugned Judgment be set aside and the Respondent be convicted of the charges framed against him.