RAM BAHADUR SUBBA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The victim, a ten year old child was allegedly subjected to penetrative sexual assault four times by the Appellant, a fifty-three year old man, in March, 2020. Her mother at the relevant time was ailing and hospitalised and her father was tending to her. On 8/5/2020, PW-2 the father of the victim on coming to learn of the sexual assault from PW-6 the child's grandmother, lodged Exhibit 2 the FIR, stating the afore-mentioned facts and seeking early legal relief.

(2.) The investigation of the case was taken up by PW-16 the Investigating Officer, who submitted Charge-Sheet against the Appellant under Ss. 376/354 of the Indian Penal Code, 1860 (hereinafter, 'IPC'), read with Ss. 6/8 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, 'POCSO Act'). The Learned Trial Court framed Charge against the Appellant under Sec. 5(l) of the POCSO Act for committing aggravated penetrative sexual assault repeatedly on the minor victim, under Sec. 5(m) of the POCSO Act, for committing aggravated penetrative sexual assault on a child below 12 years of age and under Sec. 5(n) for committing aggravated penetrative sexual assault on the child being a relative of the Appellant through blood or adoption or marriage. The penalty for all the offences supra are prescribed under Sec. 6 of the POCSO Act. Charge was also framed against the Appellant under Ss. 376(2)(n), 376(3) and 354 of the IPC.

(3.) Learned Counsel for the Appellant before this Court contended that, the FIR was lodged after a delay of ten days from the date of the alleged incident with the delay remaining unexplained. The person who scribed the FIR Exhibit 2, one Nanda Lal Limboo was not examined as a Prosecution witness, therefore, the FIR remained unproved. The signature of the Complainant on Exhibit 2 was not proved and the procedure prescribed under Sec. 154 of the Cr.P.C. for filing an FIR was not followed. The age of the victim has not been established as Exhibit 7 the Birth Certificate was not proved. Consequently, the case of the Prosecution fails and the Appellant ought to be acquitted.