SANJAY DARJEE Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Appellant was convicted of the offences under Sec. 3(a), punishable under Sec. 4 and Sec. 5, punishable under Sec. 6, of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, the "POCSO Act"), vide the impugned Judgment dtd. 24/4/2024, in ST (POCSO) Case No.12 of 2022, in the Court of the Special Judge (POCSO Act, 2012), Gangtok, Sikkim. On 29/4/2024, he was sentenced to undergo rigorous imprisonment for a period of twenty years and fined â" 2,000/- (Rupees two thousand) only, for the offence under Sec. 5(m), punishable under Sec. 6 of the POCSO Act with a default stipulation. While sentencing the Appellant under Sec. 5(m)/6 of the POCSO Act, the Court reasoned that, as the victim was below twelve years of age, the convict was sentenced under Sec. 6 of the POCSO Act, for aggravated penetrative sexual assault. He was therefore not required to be sentenced for the same offence under Sec. 4 of the POCSO Act as the penalty prescribed under Sec. 6 of the POCSO was greater in degree.

(2.) The Prosecution narrative is that, on 2/3/2022 the FIR, Exbt P-11/PW-9 was received from PW-9, informing that, her step-sister PW-1, aged about twelve years was missing from their residence around 05.00 p.m., on 24/2/2022. She was last seen with the Appellant, a driver, who was not responding to calls on his cell phone. The FIR was duly registered that same day under Sec. 363 of the Indian Penal Code, 1860 (hereinafter, the "IPC") against the Appellant. Investigation was endorsed to PW-11 the Investigating Officer (IO), whereupon it was revealed that the Appellant was known to the victim's family since the past two years. During her father's treatment at Siliguri, and after his demise the Appellant helped them with their household rations. On 24/2/2022, the Appellant went to the victim's house and asked her to accompany him to Gangtok. She left without her mother's consent and spent the night with him at a hotel in Gangtok. The victim claimed that night she was not sexually assaulted by the Appellant. On 25/2/2022, they went to Pelling, West Sikkim, with tourists in the Appellant's vehicle and booked into one hotel room. On 26/2/2022, on account of mechanical defects in the Appellant's vehicle they could not return home, and continued to stay in the same hotel till 27/2/2022, where the Appellant allegedly sexually assaulted PW-1 several times. On 28/2/2022, after the vehicle was repaired, they returned together to Gangtok and spent another night together. On 1/3/2022, the Appellant took some tourists to North Sikkim and PW-1 accompanied them where they again shared a hotel room. On 3/3/2022, they were intercepted by the jurisdictional police personnel and handed over to PW-11. He submitted Chargesheet, against the Appellant under Sec. 363 of the IPC, read with Sec. 4 of the POCSO Act.

(3.) Learned Counsel for the Appellant while assailing both, submitted that the date of birth of the victim was not proved as the Prosecution failed to prove seizure of the birth certificate and also failed to examine the author of the document as he was never arrayed as a witness. It was canvassed that regardless of the evidence of PWs 1, 2, 7 and 8 about the age of minority of the victim, the fact that PW-1 herself has stated that she had told PW-2 her mother that she had married the Appellant, indicates that she was not fourteen years old but much older. The Trial Court based its evidence on the sole testimony of the victim, but there were no witnesses to prove that the Appellant and the victim spent several nights together in various hotels. The evidence does not establish sexual assault by the Appellant on the victim nor does the medical report of the victim substantiate the Prosecution case. There is no proof whatsoever of penetrative sexual assault and the chain of circumstances do not favour the Prosecution case. The undergarment of the victim as well as her vaginal wash and swab were forwarded to the RFSL Saramsa, but the results were negative for presence of semen, thereby ruling out the allegation of penetrative sexual assault. The medical report of the victim, Exbt P-14/PW-11, found no injuries or abnormalities either on her person or in her genital. The cross-examination of the doctor revealed that during the victim's medical examination, he did not find a history of sexual assault on her. In such circumstances, the Judgment of conviction and consequent Order on Sentence of the Trial Court deserves to be set aside and the Appellant acquitted of all charges.