MANBIR KAMI @ BISHWAKARMA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) This Appeal is preferred against the Judgment and Order on Sentence dated 31.7.2015, passed by the Learned Special Judge, (POCSO), North Sikkim at Mangan, in Sessions Trial (POCSO) Case No. 02/2015, State of Sikkim Vs. Manbir Kami @ Biswakarma , vide which the learned Special Court convicted the Appellant under Sec. 3, punishable under Sec. 4 of the Protection of Children from Sexual Offences Act, 2012 (for brevity 'POCSO Act, 2012') and sentenced him to undergo rigorous imprisonment of seven years and to pay a fine of Rs.5000.00 (Rupees five thousand) only. He was further convicted under Sec. 5(m) of the POCSO Act, 2012, punishable under Sec. 6 of the same Act and sentenced to undergo rigorous imprisonment for ten years. Both Sentences of fine bore a default stipulation.

(2.) It is the case of the Appellant as expostulated by learned Senior Counsel, that no such offence had been committed by him and the anomalies in the Prosecution case stand witness to this. That, the Victim P.W.-1, in her examination in chief, inter alia, deposed that the Accused had opened her underwear and committed sexual intercourse on her, to the contrary, the evidence of P.W.-17 Dr. M.P. Sharma, who examined the Victim, found her hymen intact with no signs of perineal laceration, neither were there signs of struggle or of penetrative sexual assault. Thus, the evidence of the Doctor belies not only the evidence of P.W.-1, but also of P.W.-2 Jeewan Gurung, allegedly the eyewitness to the incident. That, it is also unimaginable that the child was not crying or seeking help when a man of 42 years was sexually assaulting her. P.W.-2 has nowhere stated that the Victim was crying or seeking any help when he allegedly reached the place of occurrence. Although, P.W.-5 Mingma Lhamu Tamang deposed that P.W.-1 had informed her of the sexual assault committed on her by the Appellant, the Victim nowhere discloses that she told P.W.-5 of the incident. It was also urged that P.W.-9 Passang Tamang, has merely stated that the Victim narrated to him that the Appellant had 'attempted' to commit sexual assault on her. P.W.-12, another doctor who examined the Victim, found laceration on the vagina but referred the Victim to the Gynaecologist P.W.-17, and admitted that laceration could be produced either by blunt force or by falling on a hard surface. It was vehemently urged that the alleged act is said to have been committed around 1430 hours on 4.9.2014 in a Kiosk along a village footpath, which in itself is incongruous as people would be frequenting the area and no person would commit an offence of sexual assault in the light of day in such an open place. The Investigating Officer (for short 'I.O.') has failed to send any body fluids of the Victim and the Appellant to the Regional Forensic Scientific Laboratory at Saramsa to establish the offence. That, although P.W.-2 has alleged that the Appellant offered him Rs.1000.00 (Rupees one thousand) only, pleading with him not to reveal the incident, this unbelievable allegation is not buttressed by seizure of any money and the Appellant being employed on Muster Roll would not have had the amount in his possession. Hence, the conviction is erroneous, made with a wrong appreciation of the materials on record, ignoring the established principles of law. It is, therefore, prayed that the impugned Judgment and Order on Sentence be set aside and quashed.

(3.) The learned Additional Public Prosecutor, per contra, argued that the Victim herself has specifically stated that the act was committed. Taking the assistance of Sec. 29 of the POCSO, he urged that the Sec. requires the Special Court to presume the commission of such an offence unless it is established to the contrary. P.W.-2, who reached the place of occurrence has supported the case of the Victim P.W.-1, having witnessed the Appellant committing the offence on the minor Victim. That, on being seen, the Appellant requested P.W.-2 not to disclose the offence to anyone and at the same time offered him Rs. 1000.00 (Rupees one thousand) only, to conceal the incident. Placing reliance on Exhibit-7, the Medical Report of the Victim, and the evidence of P.W.-12, the Doctor of Rongli, Primary Health Centre, who examined the Victim on the morning following the incident, it was urged that laceration was found on the Victim's vagina and she was referred to the Gynaecologist, who also found laceration therein. Therefore, there is no question of the offence not having been committed.