BICKEY PARIYAR Vs. STATE OF SIKKIM

JUDGEMENT

(1.) This Appeal calls into question the Judgment, dated 29- 11-2023, in S.T. (POCSO) Case No.51 of 2021, of the Court of the Learned Special Judge (POCSO Act, 2012), Gangtok, Sikkim, vide which, the Appellant was convicted of the offence under Sec. 4(2) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, "POCSO Act") and sentenced to undergo simple imprisonment for a term of twenty years under Sec. 4(2) of the POCSO Act and to pay a fine of Rs.2,000.00 (Rupees two thousand) only, with a default stipulation.

(2.) The facts pertaining to the instant case are that, PW-2, the victim's mother, had taken PW-1 the victim, aged about fifteen years, on 2/10/2021 to the hospital for medical examination on her sudden illness. On such examination, it was found that PW-1 was pregnant. She revealed to PW-2 that the Appellant was the father. PW-2 accordingly lodged Exbt. 3, the FIR on 4/10/2021 before the jurisdictional Police Station, informing that, the Appellant aged about twenty-three years had raped and impregnated her child, which she came to learn through the Doctor on 28/9/2021. That, her daughter told her that she had been taken by the Appellant twice on 7/9/2021 to his residence at around 2 p.m. and a week earlier to his friend's place. The FIR was registered against the Appellant on the same date, i.e., 04-10- 2021, under Sec. 376 of the Indian Penal Code, 1860 (hereinafter, "IPC") read with Sec. 5(j)(ii)/6 of the POCSO Act and endorsed to PW-11, the Investigating Officer (I.O.) for investigation, on completion of which, he submitted Charge-Sheet against the Appellant, under the above mentioned Sec. of law. The Learned Trial Court, on taking cognizance of the offence, framed Charge against the Appellant on two counts under Sec. 4(2) of the POCSO Act, for committing the offence, once in his friend's room and then in his own room, for two counts under Sec. 376(3) of the IPC. Charge was also framed under Sec. 5(l), Sec. 5(j)(ii) of the POCSO Act and Sec. 376(2)(n) of the IPC. The Appellant pleaded "not guilty" to the charges and claimed trial. The Prosecution examined eleven witnesses in an effort to establish its case beyond reasonable doubt. On closure of Prosecution evidence, the Appellant was examined under Sec. 313 of the Code of Criminal Procedure, 1973 (hereinafter, "Cr.P.C.") to enable him to explain the incriminating circumstances in the evidence against him. He claimed to be innocent and unaware of the reasons for his arrest and that he was falsely implicated. Thereafter, the final arguments of the parties were heard. Consideration of the entire evidence by the Learned Trial Court, culminated in the conviction and sentence as extracted supra.

(3.) Learned Counsel for the Appellant advanced the argument that the Prosecution attempted unsuccessfully to establish that the victim was a minor. The Prosecution relied on the following documents to prove her age, viz., Exbt P-2/PW-1 her Birth Certificate, Exbt P-10/PW-10 letter issued by the Principal of the victim's school, indicating her date of birth as 3/9/2006, Exbt P-11/PW-10 the School Admission Register and Exbt P-19/PW-11 the Seizure Memo for the Birth Certificate. The witnesses furnished for proof of these said documents were PWs 1, 2 and 10. Regardless of the above, the Prosecution failed to establish the place of issuance of the Birth Certificate, its seizure or its contents. That, the production of the Register Exbt P-11/PW-10 was of no assistance to the Prosecution case as it was not the Register pertaining to the first School attended by the victim, and thereby rendered futile for proof of date of birth. Seizure Memo Exbt P19/PW-11, stood unproved as the alleged witnesses thereof were not furnished by the Prosecution before the Court, and their purported signatures on the documents were proved by the I.O., raising suspicions about the Prosecution case of seizure of the Birth Certificate. The age of the victim thus stood unproved in terms of the mandate of law. To fortify her arguments, reliance was placed on Madan Mohan Singh and Others vs. Rajni Kant and Another ;(2010) 9 SCC 209 Lall Bahadur Kami vs. The State of Sikkim,SLR (2017) Sikkim 585 : 2017 SCC OnLine Sikk 173 and Mangala Mishra @ Dawa Tamang @ Jack vs. State of Sikkim, SLR (2018) Sikkim 1373 : 2018 SCC OnLine Sikk 215. It was next argued that even assuming that the victim was a minor, no sexual assault was perpetrated on her by the Appellant as the act was consensual, sans proof of duress or threat held out by the Appellant. That, the time lines mentioned by PW-2 in the FIR and in her deposition in Court cannot withstand legal scrutiny as they contradict each other. It was urged that the Trial Court was in error in considering Exbt P5/PW-8 as proof of sexual assault in the absence of evidence of the examining Doctor. That, discrepancies arise in the victim's statement under Sec. 164 of the Cr.P.C. and her evidence before the Court, rendering her as an unreliable witness for which the Appellant deserves the benefit of doubt. Hence, the impugned Judgment and Order on Sentence be set aside.