SUSHAN DARJEE Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Appellant was charged with the offences of impregnating a minor, PW-1, as a consequence of sexual assault, under Sec. 5(j)(ii) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, the 'POCSO Act'). Secondly, for repeatedly committing penetrative sexual assault on the child, under Sec. 5(l) of the POCSO Act, and for having committed aggravated penetrative sexual assault on the same child, knowing her to be pregnant, under Sec. 5(q) of the POCSO Act. All offences are punishable under Sec. 6 of the POCSO Act. He was also charged under Ss. 376(2)(n), 376(2)(h) and 376(3) of the Indian Penal Code, 1860 (hereinafter, the 'IPC'), for commission of the same offences (supra). The Court of the Learned Special Judge (POCSO Act, 2012), Gangtok, Sikkim, on appreciation of the evidence on record, concluded in Paragraph 28 of the impugned Judgment, dtd. 30/7/2024, in ST(POCSO) Case No.24 of 2021 [State of Sikkim vs. Sushan Darjee (Hingmang)] that; the question whether the victim is a minor within the meaning of Sec. 2(d) of the POCSO Act, 2012, is answered in the negative. The Court also observed that on 13/5/2021 to 14/5/2021, when the Appellant and the victim were in his cousin's house at Sang, he could not be held guilty for rape as the victim was not a minor on those dates and the acts were consensual. The Learned Trial Court accordingly acquitted the Appellant from the above-mentioned charges of the POCSO Act and the IPC. However, invoking Sec. 222(2) of the Code of Criminal Procedure, 1973 (hereinafter, the 'Cr.P.C.'), the Appellant was convicted under Sec. 376(1) of the IPC for the offence of rape, committed by him, on the alleged victim on 12/4/2021. Vide the Order on Sentence, dtd. 31/7/2024, the Appellant was sentenced to undergo rigorous imprisonment, for a term of ten years, along with a fine of ?5,000/- (Rupees five thousand) only, under Sec. 376(1) of the IPC with a default clause of imprisonment.

(2.) Aggrieved by the said conviction and sentence the Appellant has approached this Court. Learned Counsel for the Appellant urged that in fact the Appellant and the victim were in a romantic relationship. The Appellant was nineteen years at the time of the offence, while the age of the victim could not be ascertained from the Prosecution evidence furnished, although she claimed to be only thirteen years of age. That, the sexual acts between the Appellant and the alleged victim being consensual and the minority of the victim's age not being proved, the Appellant deserves an acquittal.

(3.) The Prosecution for their part conceded that, the age of the victim was not proved but that did not do away with the fact of the offence of rape, as it is the case of the victim that the sexual assault was perpetrated on her sans her consent, hence the Judgment and Order on Sentence requires no interference.