SANDEEP TAMANG Vs. STATE OF SIKKIM

JUDGEMENT

(1.) This appeal is directed against the Judgment and Order on Sentence, passed by the Learned special Judge, Protection of Children from Sexual Offences Act, 2012 (for short "POCSO" Act, 2012), South Sikkim at Namchi, in Sessions Trial (POCSO) Case No. 06 of 2014, both dated 28-2-2015.

(2.) The grounds put forth in the appeal, inter alia, are that the learned trial Court failed to appreciate that PW 6, an analyst-cum-assistant Chemical Examiner, at the Regional Forensic Science Laboratory (RFSL) has admitted in her cross-examination that semen or human body fluid could not be detected in the vaginal swab of the Victim. That, the learned trial Court also failed to consider that PW 7 Dr. Sandhya Rai-the Medical Officer, has stated that on examining the victim, she found no visible injury on the body of the victim including her private parts. That, PW12- Dr. M. P. Sharma, has stated that when the victim was examined she did not personally complain about the sexual assault by the accused or anyone else. Learned Counsel for the appellant also expostulated that the victim was not sixteen years on the night of occurrence i.e. 7-6-2014, since, Exhibit 3 - the Birth Certificate of the victim, reveals her date of birth to be 29-3-1998, thereby making her sixteen years and two months at the time of the alleged incident and, therefore, takes the offence out of the umbrella of Section 376(2)(i) of the IPC. That in consideration of the facts detailed hereinabove, the benefit of doubt ought to have been extended to the appellant, hence the impugned judgment and order on sentence be set aside and the appellant be acquitted of the offences charged with.

(3.) Learned Additional Public Prosecutor in his submissions urged that the learned Trial Court had arrived at a correct finding based on the statement made by the victim and the evidence on record, therefore the impugned judgment and order on sentence requires no interference.