DEO KUMAR RAI Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Judgment of the Learned Special Court dated 17.09.2015 (the impugned judgment) sentences the convict to undergo simple imprisonment of 5 years and to pay a fine of Rs.10,000/- (Rupees ten thousand) only under Section 9 (m) and 9 (n) and punishable under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act, 2012). In default of payment of fine, the convict was directed to further undergo simple imprisonment of 3 (three) months. However, the period of detention already undergone by the convict during investigation and trial was to be set off against this period of imprisonment as provided under Section 428 Cr.P.C. The fine, if recovered, was to be handed over to the victim as compensation under Section 357 of the Code of Criminal Procedure, 1973 (Cr.P.C.).

(2.) The convict/appellant herein seeks to assail the impugned judgment passed by the Special Judge. Mr. Zangpo Sherpa, Legal Aid Counsel for the Appellant submits that the Learned Special Judge ought not to have relied upon the testimony of the victims alone when there were certain inconsistencies in the facts. He further submits that the Learned Special Court had erred in not considering the delay in lodging the First Information Report (FIR). He further submits that the prosecution had failed to examine necessary witnesses and the testimonies of those witnesses who had been examined were inconsistent. Mr. Zangpo Sherpa, relies upon Mohd Ali alias Guddu v. State of U.P., 2015 7 SCC 272 and Govt. of NCT of Delhi v. Mullah Muzib,2015 SCCOnLine(Del) 7228.

(3.) The Apex Court in re: Mohd Ali alias Guddu would hold that there can be no iota of doubt that the conviction can be based on soul testimony of prosecutrix, even without corroboration, if it is impeachable and beyond reproach. However, when a Court on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not irreproachable, then there is a requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony and in such cases where such other evidence does not support the story of the prosecutrix it can be discarded.