BINDHYACHAL BAITHA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Appellant was convicted under Sec. 9(m) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, "POCSO Act"), for committing aggravated sexual assault on a child below twelve years, punishable under Sec. 10 of the same Act. He was sentenced to undergo simple imprisonment for a period of five years and fined Rs.5,000.00 (Rupees five thousand) only, with a default clause of imprisonment. The Learned Trial Court observed that since Sec. 9(m) of the POCSO Act covers the offences punishable under Ss. 354 and 354B of the Penal Code, 1860 (hereinafter, the "IPC"), the Appellant need not be penalised twice for the same offence under different legislations. He was acquitted of the offence under Sec. 5(m) of the POCSO Act for which penalty is provided under Sec. 6 of the same Act. Although charge was framed against the Appellant also under Sec. 376AB of the IPC, the Learned Trial Court failed to refer to or discuss this Sec. in the impugned Judgment.

(2.) The victim is a girl child, aged about three years and two months at the time of the offence. The Prosecution case is that the Appellant had inserted his finger into her vagina and caused injuries therein. PW-5 the victim's mother, lodged Exhibit 2 the FIR, on 2/10/2018 complaining that the victim PW-1 had been indicating to her by pointing at her genital that uncle (accused) had inserted his finger into it. That, PW-5 paid scant attention to what the child was communicating at the relevant time being overwhelmed by the circumstance of the hospitalisation of both her husband and father and she being the caregiver. However, on 0110-2018 when the child had the urge to urinate frequently, she checked the genital of the child and found a cut therein, while the genital was found to be reddish in colour. On her enquiry, the child repeated the word "uncle" and pointed upwards. Later, when her sister-in-law was with the child and the Appellant was descending from the stairs, the child indicated that the Appellant, their neighbour, was the perpetrator.

(3.) Learned Counsel for the Appellant contended that it was erroneous to hold the Appellant guilty as the circumstances could not even have permitted the offence to occur. The place where the Appellant resided was on the top floor of a four storied RCC building, while the victim lived on the immediate floor below with other families also in occupation of the same floor. The Appellant is employed in a private company, has a wife and two grown up children and these facts are not disputed. That, the injuries on the genital of the victim in all probability was on account of the diaper worn by the victim, besides, she was left in the constant care of PW-7 before the date of incident and she deposed that she did not leave the child alone, ruling out any opportunity for commission of such an offence. There was no eyewitness to the incident. PW-7 in her evidence before the Court has exacerbated her statement concerning the incident. That, the child during her deposition was not able to identify the Appellant as the alleged perpetrator, apart from which the Learned Trial Court prompted her to depose against the Appellant by specifically enquiring of the child "if the uncle had done any bad things to her such as whether he had touched her private parts inappropriately". It was only then, that the victim had stated that he had touched her vagina. The victim admitted to being tutored by her mother to state that the Appellant had inserted his finger into her vagina. Thus, the victim's statement cannot be relied on. The crossexamination of the IO was indicative of the fact that the male members of the victim's own family were shielded as they were not examined during the investigation. As the Learned Trial Court failed to appreciate the evidence in its correct perspective, the impugned Judgment deserves to be set aside and the Appellant acquitted of the offences.