TANAM LIMBOO Vs. STATE OF SIKKIM

JUDGEMENT

(1.) Seeking a reversal of the Judgment of Conviction dated 05-04-2017 in Sessions Trial (POCSO) Case No.07 of 2016 in the Court of the Special Judge (POCSO), West Sikkim, at Gyalshing, and the consequent sentence dated 11-042017, by which the Appellant was sentenced to undergo simple imprisonment for a period of nine years and to pay a fine of Rs. 20,000.00 (Rupees twenty thousand) only, under section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short "POCSO Act"), with a default clause of imprisonment, the Appellant is before this Court. The period of detention already undergone by the Appellant during investigation and trial were duly set off against the incarceration imposed.

(2.) Assailing the Judgment and the Order on Sentence, it is submitted that according to the victim, the Appellant used a condom while committing the act, if this be true, then the Appellant would have taken sometime to wear it during which time the victim could have escaped. However, no evidence accrues from the Prosecution to suggest that the victim made any effort to decamp from the place of occurrence. It was also urged that there is no medical evidence to support the allegation that the victim sustained injury by the alleged use of force by the Appellant. The victim herself has stated that on the relevant day she was cutting grass when her grandfather sent her to cut grass in an adjoining area, hence although a material witness the grandfather of the victim has been excluded from the list of Prosecution Witnesses. That, there are contradictions in the statement of the victim under Sec. 161 and section 164 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C"). Besides, the victim claims that she asked for the mobile phone of one of the ladies and called up her "Tumma" (Aunt) P.W.4, informing her that the Appellant had raped her which evidence P.W.4 failed to corroborate. P.W.3 and P.W.5 would testify that when they saw the alleged victim she was normal and properly dressed. It is also the victim's statement that she cried for help during the sexual assault. Although the alleged place of occurrence is located only 70 meters from her house and 30 meters from the road strangely no one heard her cries. That there are anomalies in the evidence of P.W.6, P.W.13 and P.W.4 as according to P.W.6 he lodged the First Information Report (FIR) based on information allegedly received by him from P.W.13 his son, who in turn alleges that such information was given to him by his mother, P.W.4 telephonically. P.W.4 does not corroborate this statement and has specifically admitted under cross-examination that the alleged victim did not convey anything to her about the incident, hence the Prosecution has failed to prove the circumstances under which P.W.6 received information about the alleged incident. P.W.13 mentions the father of the victim who however was not made a Prosecution Witness and no explanation is forthcoming for the reason as to why the FIR was lodged by the uncle of the victim and not her father. That, P.W.9 the Doctor who examined the victim has not given any conclusive opinion pertaining to the alleged rape of the victim, while P.W.10 who examined the Appellant found no injuries on the private part of the Appellant or on any other part of the Appellant's body. The Appellant for his part when examined under section 313 of the Crimial P.C. 1973 has claimed his innocence, to establish which he even produced his wife, Mrs. Neelam Sherpa as D.W.1, according to whom, the Appellant was working with her in the fields for the entire day on 10-04-2016 when all of a sudden the Police came to their house and took the Appellant with them. The finding of guilt of the Appellant as per the impugned Judgment is based on the testimony of the victim supported by the medical evidence, but there is no iota of evidence in the testimony of the Doctor who examined the victim to lead to such a conclusion, hence this is a fit case where the Appellant is to be acquitted.

(3.) Learned Additional Public Prosecutor while strongly refuting the arguments of Learned Counsel for the Appellant invited the attention of this Court to the conduct of the Prosecutrix and contended that had the victim consented to the offence neither would she have cried for help nor would she have rushed to the house of P.W.3 and informed her aunt P.W.4 from the mobile phone of P.W.2. It is also evident that her uncle P.W.5 came and took her home along with him. The evidence of P.W.2 and P.W.3 support the evidence of the victim P.W.1 with regard to her reporting the matter to her aunt. P.W.4 the victim's aunt has also stated that she received a mobile call from the victim requesting her to come immediately on which she sent her uncle P.W.5 to fetch her. P.W.5 has corroborated the fact that P.W.4, the wife of P.W.6, had told him to go to the house of one Sancha Raj Limboo to pick up the victim. Exhibit 5 is the Birth Certificate of the minor victim revealing her date of birth as "05-05-2000" the incident having taken place on 10-04-2016 would make the victim a month less than 16 years of age and, therefore, a minor in terms of the POCSO Act. That as the Birth Certificate remained unchallenged before the Learned Trial Court it cannot be questioned at the appellate stage to disprove the age of the victim. P.W.9 the Doctor who examined the victim has mentioned in Exhibit 8 that local examination indicated injury on the genital of the victim which was suggestive of blunt injury. The Appellant evidently had made a disclosure statement under section 27 of the Indian Evidence Act, 1872 (for short "Evidence Act"), Exhibit 12 on the basis of which the condom, M.O.I used by him was seized by the Police after it was pointed out by the Appellant in the presence of two witnesses P.W.14 and P.W.15. Hence, the Appeal deserves a dismissal.