BISHAL TAMANG Vs. THE STATE OF SIKKIM

JUDGEMENT

(1.) This Appeal has been preferred against the Judgment and Order on Sentence, both dated 29-10-2015, in S. T. (POCSO) Case No.01 of 2015, by which the Learned Special Judge, POCSO, North Sikkim at Mangan, convicted the Appellant under Section 5(m) of the Protection of Children from Sexual Offences Act, 2012 (for short "POCSO Act"), punishable under Section 6 of the same Act, and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.5,000/- (Rupees five thousand) only, with a default stipulation, duly setting off the period of detention undergone.

(2.) On 06-12-2014 at around 2130 hours a written FIR, Exhibit 1, was lodged by P.W.1, the mother of the minor victim P.W.2, aged about five years, before the Pakyong Police Station, East Sikkim, to the effect that the Appellant belonging to the same village had sexually assaulted P.W.2 at her house. Based on Exhibit 1, Pakyong Police Station Case No.54/2014 dated 06-12-2014, under Section 376 of the Indian Penal Code (for short "IPC") read with Section 4 of the POCSO Act, was registered against the Appellant and investigated into. It transpired that, the Appellant aged about twenty-three years, an unemployed youth, a permanent resident of Ruchal Gaon, Taza, East Sikkim, the neighbour and distant relative of P.W.1, was at her house on 06-12-2014. At around 1800 hours, when P.W.1 was attending to household chores, he was playing with P.W.2. After a while, the Appellant took P.W.2 to a dark corner of the Courtyard and sexually assaulted her. On hearing P.W.2 screaming P.W.1 rushed out to find out the cause and found the Appellant standing beside P.W.2, who on enquiry by P.W.1, only cried in response, prompting P.W.1 to open P.W.2's trousers where she saw semen on the underwear and genital of P.W.2. On confronting the Appellant, he confessed to the offence, on which P.W.1 immediately informed P.W.4, the father of the victim, on the mobile phone. With the assistance of their co-villagers, the Appellant was taken to Rorathang Out Post and later to Pakyong P.S. where P.W.1 lodged Exhibit 1 around 2130 hours.

(3.) The victim was medically examined at PHC Pakyong and STNM Hospital, Gangtok and the undergarments of both P.W.2 and the Appellant were seized, the penile swab of the Appellant and the vaginal and vulval wash of the minor victim were also collected. P.W.16, the Obstetrician and Gynaecologist at STNM Hospital in Exhibit 20, the Medicolegal Examination Report of the victim, opined that, there was injury by blunt force in the genital area of the victim, but there was no evidence of penetration. The results of the Forensic Examination from P.W.13, the Analyst at RFSL, Saramsa, tested positive for the presence of human semen on the undergarment of the victim and the frock of the victim as well in the undergarment and penile swab of the Appellant. Finding a prima facie case under Sections 376/511 of the IPC read with Section 8 of the POCSO Act, Charge-Sheet was submitted against the Appellant.