LALL BAHADUR KAMI Vs. STATE OF SIKKIM

JUDGEMENT

(1.) This Appeal assails the Judgment and Order on Sentence of the Court of the Special Judge, (POCSO), West Sikkim at Gyalshing, in S.T. (POCSO) Case No. 03 of 2016, dated 9.12.2016, in which the learned Trial Court convicted the Appellant of the offence under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter "POCSO Act"), and sentenced him to undergo rigorous imprisonment for a term of 12 years and fine, with a default clause of imprisonment. The Appellant was also convicted under Section 376(2)(j), Section 376(2)(l) and Section 376(2)(n) of the Indian Penal Code, 1860 (hereinafter "the IPC"), and sentenced to undergo rigorous imprisonment for a term of 12 years and to pay a fine of Rs.10,000/- (Rupees ten thousand) only, with default stipulations, for each of these offences. The sentences were ordered to run concurrently, duly setting off the period of imprisonment already undergone by the Appellant.

(2.) The Prosecution alleges that the Appellant (aged about 23 years), a driver by profession, induced the allegedly disabled Victim, P.W.-1 (aged about 17 years 8 months), on 5.2.2016, at around 17.00 hours when she was attending a marriage ceremony near Dentam Bazaar, to accompany him to a hotel. He gave her liquor and asked her to spend the night with him in the hotel. On her refusal, they set off for her home but en route, he sexually abused her on a footpath and then inside a deserted house. P.W.-4, her mother, made efforts to trace her that night, in vain. On 6.2.2016, at around 5 a.m., the Appellant left the place of occurrence while the Victim returned home. On enquiry by her mother, she revealed the incident to her, which led to the lodging of the First Information Report (hereinafter "FIR") Exhibit-6 on 6.2.2016, with the assistance of P.W.-3, P.W.-5 and P.W.-6. The FIR was registered on the same day against the Appellant under Section 376 of the IPC read with Section 4 of the POCSO Act, investigation initiated and the Appellant arrested on 6.2.2016. On completion of investigation, Charge-Sheet was submitted against the Appellant under Sections 376/419 of the IPC read with Sections 5/5 (k), (l) and Section 6 of the POCSO Act. The learned Trial Court framed charges against the Appellant under Sections 5(k) and 5(l) of the POCSO Act, punishable under Section 6 of the POCSO Act and under Section 376(2)(j), Section 376(2)(l) and Section 376(2)(n) of the IPC. On a plea of "not guilty" by the Appellant, the Prosecution furnished and examined 15 witnesses, in a bid to establish its case beyond a reasonable doubt. After examining the Appellant under Section 313 of the Code of Criminal Procedure, 1973, hearing the arguments of the parties and considering the entire evidence on record, the learned Trial Court convicted and sentenced the Appellant as aforestated. Aggrieved, the Appellant is before this Court.

(3.) In Appeal, it is contended that contradictory evidence was adduced by the Prosecution witnesses, since it is the admission of P.W.-1 in her cross-examination that she did not relate the alleged incident to her mother, who on the contrary stated that when she enquired about the matter, her daughter told her that the Appellant forced her to accompany him and thereafter, committed the offence. Consequently, she lodged the FIR. That, an adverse inference can also be drawn against the Prosecution, as according to P.W.-4, who was also at the venue informed her that P.W.-1 had received a phone call there but P.W.-4 was not made a Prosecution witness, neither was the hotel owner, where the accused allegedly took the Victim. According to the Victim, after leaving the hotel she used the "Bhir Bato" ("Bhir" being the Nepali word for cliff), a concrete footpath and the Appellant started following her. Admittedly, people of the locality frequented the footpath while the deserted house is also located near the said footpath. Meaning thereby that had hue and cry been raised, it could easily have been heard, thus leading to the safe assumption that the Victim raised no cries for help. The Investigating Officer (for short "I.O.") P.W-13, admitted that there are houses and a market between the alleged road and Dentam Bazaar but none had seen the Victim and the Appellant together. That, the evidence of the I.O. relied on by the Convicting Court, to the effect that the Appellant lured the Victim by continuously meeting her, buying her sweets and snacks, recharging her Cell Phone, lacks substantiation by evidence of other Prosecution witnesses or the Victim. The alleged overall disability of the Victim is disproved by the evidence of P.W.-6, as well as the Victim herself, making Exhibit-5, the "Certificate for persons with disabilities", a suspect document. It was also advanced that if Exhibit-5, issued on 8.7.2014, is to be taken into consideration, the age of the Victim depicted therein is 18 years, in contradiction to Exhibit-4, the Birth Certificate of the Victim, which records her date of birth as 13.6.1998. That, P.W.-7, the Doctor who examined the Victim, has testified that redness in the fourchette could be the result of infection or itching and the hymenal tear due to stretching and rigorous exercise. The Doctor also admitted that the blunt injury as mentioned in her Report, Exhibit-8, may occur by a fall from a height but the learned Trial Court failed to consider these aspects.