ANGA BAHADUR GURUNG Vs. STATE OF SIKKIM

JUDGEMENT

(1.) Dissatisfied and aggrieved by the Judgment, dtd. 29/8/2023, in S.T. (POCSO) Case No.08 of 2022, of the Court of the Learned Special Judge (POCSO), West Sikkim, at Gyalshing, vide which the Appellant was convicted of the offence under Sec. 7 punishable under Sec. 8 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, 'POCSO Act, 2012') and under Sec. 354A(2) of the Indian Penal Code, 1860 (hereinafter, the 'IPC'), and sentenced thereto, the instant Appeal has been preferred.

(2.) By an Order on Sentence of the same date, he was sentenced to undergo simple imprisonment for a term of three years and fined ? 5,000/- (Rupees five thousand) only, with a default clause of imprisonment, under Sec. 7, punishable under Sec. 8 of the POCSO Act, 2012 and rigorous imprisonment for a term of one year under Sec. 354A(2) of the IPC. The sentences were ordered to run concurrently. The fine imposed was ordered to be paid to the victim in terms of Sec. 357(1)(b) of the Code of Criminal Procedure, 1973 (hereinafter, 'Cr.P.C.').

(3.) Learned Counsel for the Appellant/Convict contended that sexual intent which is the sine qua non for an offence under Sec. 7 of the POCSO Act, 2012, has not been proved by the Prosecution. That, the evidence points to the fact that the Appellant was seated with his wife in the second seat of the vehicle with the victim seated next to his wife, and inadvertently he may have touched the victim in view of the space constraint with four people accommodated in the second seat. However, there was no sexual intent as provided under Sec. 7 of the POCSO Act, 2012. It is also evident that there was animosity between the victim and the Appellant as she had requested him to exchange seats with her when he boarded the vehicle as she would be alighting earlier than him, but he had refused such exchange. Disgruntled by such refusal, false implication could not be ruled out. That, the Prosecution evidence does not support the case of the victim as PW-2 has admitted that he could not say whether the Appellant had touched the victim inappropriately. PWs 3, 4 and 7 who were the other passengers, travelling in the same vehicle also admitted as much. Hence, the Learned Trial Court erred in holding that the Appellant had touched the victim with sexual intent having touched her breast, despite being requested by the child to refrain from such acts. It was further urged that the age of the victim was not established, consequently no offence under the POCSO Act, 2012, was made out against the Appellant. Hence, the impugned Judgment be set aside and the Appellant be acquitted of all charges.