LENDUP LEPCHA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The appellant has been convicted having committed the offence of aggravated penetrative sexual assault on a child below twelve years under sec. 5(m) and repeatedly under sec. 5(l) Lendup Lepcha vs. State of Sikkim under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and sentenced to twenty years rigorous imprisonment with fine of Rs.30,000.00 (Rupees thirty thousand only) for each of the offences. He was also convicted under Sec. 376AB, 375(a) and 354B of the Indian Penal Code, 1860 (IPC). However, in view of sec. 42 of the POCSO Act, the appellant was not sentenced under Sec. 376AB and 375(a) IPC. The appellant was acquitted of the offence of criminal intimidation under sec. 506 IPC. The period of imprisonment was to run concurrently and the imprisonment already undergone was to be set off. The total amount of fine recovered was to be applied in payment of compensation to the minor survivor. Rs.5,00,000.00 (Rupees five lakhs only) was also awarded to the minor victim out of the Victim Compensation Fund.

(2.) The appellant challenges the opinion of the learned Trial Court on the ground that the prosecution had failed to establish penetrative sexual assault. The minority of the victim successfully established by the prosecution during the trial is not questioned.

(3.) Mr. Jorgay Namka, learned Senior Advocate for the appellant, has taken this Court through the evidence led by the prosecution and submitted that the prosecution witnesses failed to establish that the appellant had committed aggravated sexual assault upon the victim. He pointed out to the contradictions in the statement of the victim recorded under sec. 164 of the Code of Criminal Procedure, 1973 (Cr.P.C.) (victim's statement) and her deposition in Court. He also pointed out to the variance between the victim's deposition and the medical evidence. He fairly conceded Lendup Lepcha vs. State of Sikkim that the prosecution had been able to establish the minority of the victim.