BIKASH RAI Vs. STATE OF SIKKIM

JUDGEMENT

(1.) Two minor girls aged about nine years and twelve years respectively are said to be the victims of sexual assault, allegedly perpetrated on them by the Appellant, a thirty-one year old male, on 2/7/2021. The Court of the Learned Special Judge (POSCO Act, 2012), Gangtok, Sikkim, having conducted and completed the trial, found the Appellant guilty of the offences under Sec. 7, punishable under Sec. 8 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, the 'POSCO Act') and under Sec. 9(m) punishable under Sec. 10 of the POCSO Act, vide the impugned Judgment dtd. 29/11/2023, in ST (POCSO) Case No.40 of 2021 (State of Sikkim vs. Bikash Rai). On 30/11/2023, the impugned Order of Sentence was pronounced directing the Appellant to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.5,000.00 (Rupees five thousand) only, for the first offence (supra) and to undergo rigorous imprisonment for a term of seven years and pay a fine of Rs.5,000.00 (Rupees five thousand) only, for the latter offence (supra). Both sentences of fine bore default stipulations.

(2.) Aggrieved thereof, the Appellant is before this Court. Learned Counsel for the Appellant argued that there are contradictions in the evidence of the victims, PW-1 and PW-2, thereby rendering their testimonies as unreliable. PW-1 did not state that after the arrival of PW-2 at her residence, the Appellant did anything untoward to her, neither did she tell PW-2 on her arrival that, the Appellant had touched her anywhere on her person. She merely narrated to PW-2 that the Appellant had chased her around the house. PW-2 however not only deposed that the Appellant grabbed her shoulder and put his hand on her chest on two occasions but that he did so even to PW-1, who however has not mentioned such fact in her deposition. That, PW-1 in her evidence to PW-7 has exacerbated the facts by telling PW-7 that the Appellant had also touched her shoulder, thus in view of the anomalies pointed out, their evidence not being of sterling quality, ought to be rejected. Besides, one Sxxxxxx didi to whom both PW-1 and PW-2 allegedly narrated the incidents was not furnished as a Prosecution witness, casting doubts on the Prosecution version. The Appellant, for his part furnished DW-1 as an alibi to establish that both of them were working together during the entire day, constructing a water channel, in the same village and hence the Learned Trial Court was in error in disbelieving the evidence of DW-1, merely on the ground that two other men said to have been working alongside the Appellant and DW-1 were never brought as witnesses by the Appellant. It was ultimately urged by Learned Counsel that, the Prosecution has failed to establish that there was any sexual intent behind the alleged touching of the victims by the Appellant on the relevant day. The medical evidence of the victims and the Appellant too, are devoid of any proof of sexual assault and the Appellant for all the grounds enumerated hereinabove may be acquitted, duly setting aside the impugned Judgment of conviction and Order on Sentence.

(3.) Contesting the arguments supra, Learned Additional Public Prosecutor contended that the evidence of PW-1 and PW-2 are corroborated by the evidence of PW-3 and PW-4, the father and the mother of the minor victim PW-1. That, the evidence of DW-1 also established that, the Appellant was not with him constantly at the construction site of the water channel and the incident occurred at around 01.00 p.m. apparently when the Appellant went for lunch. There is no error in the finding of the Learned Trial Court and the impugned Judgment and Order on Sentence require no interference, hence the Appeal be dismissed.