MANGALA MISHRA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Learned Special Judge, Protection of Children from Sexual Offences (POCSO) Act, 2012, East Sikkim, at Gangtok, convicted the Appellant under Sec. 5(l) punishable under section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short the "POCSO Act"), vide its impugned Judgment dated 19-09-2017. The impugned Order on Sentence dated 20-09-2017 sentenced the Appellant to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 2,000.00 (Rupees two thousand) only, for the offence aforestated, with a default clause of imprisonment.

(2.) Aggrieved, the Appellant is before this Court, inter alia, on grounds that the seizure of Exhibit 7 the Birth Certificate of the Victim, remained unproved, the date of birth of the Victim has not been established as the contents of Exhibit 7 were not proved by any witness of the Prosecution. That, it is now settled law as to how the age of a Victim is to be assessed and none of the parameters as laid down in Mahadeo s/o Kerba Maske Vs. State of Maharashtra and Another, 2013(3) R.C.R.(Criminal) 932 : (2013) 14 SCC 637 have been complied with although witnesses being P.W.7, P.W.8 and P.W.9 were examined with regard to the Birth Certificate. P.W.2, the mother of the Victim, from whose possession the Birth Certificate was allegedly seized has made no mention of such seizure neither has she testified about the age of the Victim to establish that she was a minor. The Register containing the entry, if at all, of the date of birth of the Victim was not furnished before the Learned Trial Court. That apart, it is also evident from Exhibit 8 the FIR, that the father of the Victim had in fact lodged a Complaint on 25-05-2016 (May 2016) informing the Police that his daughter, the Victim, aged 15, was missing since 2404-2016 (April 2016) at 30 p.m. which, however, was not reduced in writing but merely entered as a Diary Report and the case taken up as one under "Missing Children" being Case No.17/2016 dated 25-05-2016. The Learned Trial Court failed to appreciate that the evidence furnished before it did not prove that the Victim was a child as defined under Sec. 2(d) of the POCSO Act. That, material discrepancies have occurred in the evidence of the Prosecution, as P.W.9 ASI Tek Bahadur Chettri and P.W.15 PI Ajay Rai were not able to prove the date of lodging of the FIR and the date when the Victim was alleged to have gone missing. The section 164 Code of Criminal Procedure, 1973 (for short "Cr.P.C.") statement of the Victim was incorrectly considered as substantive evidence by the Learned Trial Court, while the Victim was unable to prove that her statement was recorded under the said provision. Exhibit 12 the Medical Report of the Victim and Exhibit 15 the Report of the Regional Forensic Science Laboratory (RFSL), Sikkim, have not supported the Prosecution case of penetrative sexual assault. This evidence nevertheless was relied on by the Prosecution and the embellished and uncorroborated testimony of the Victim was duly considered by the Learned Trial Court. That, reliance has been placed on the statements of P.W.9 and P.W.16 who are both Investigating Officers (I.O.) which is impermissible. That, the Learned Trial Court failed to consider the claim of juvenility raised by the Appellant before the Court and erred in ignoring the principles laid down by section 114(g) of the Indian Evidence Act, 1872 (for short the "Evidence Act"), when material witnesses and evidence were not produced by the Prosecution such as the father of the Victim and the FIR lodged by him. Hence, in view of the aforesaid circumstances the impugned Judgment and Order on Sentence deserves to be set aside and the Appellant acquitted of the Charges.

(3.) Resisting the stand of learned Counsel for the Appellant, learned Assistant Public Prosecutor would contend that the Prosecution has without doubt proved the age of the Victim as Exhibit 7, the Birth Certificate of the Victim, being an official document is admissible in evidence. The date of birth of the Victim on the Exhibit is reflected as "1409-2001" thereby making her 15 years at the time of the incident, i.e., 25-05-2016. That, the claim of juvenility by the Appellant deserves no consideration as Exhibit 5 his Ossification Test would clearly indicate that his approximate bone age as per the Radiologist is above 20 years of age. That, the Learned Trial Court has correctly considered the statement of the Victim recorded under section 164 of the Crimial P.C. 1973 which corroborated the evidence given by her in the Court. Exhibit 12, the Medical Report of the Victim, is testimony to the fact that the hymen of the Victim was ruptured establishing the offence of rape and of penetrative sexual assault. That, there are no anomalies with regard to the facts emerging in Exhibit 8 the FIR lodged by P.W.9 hence, no error emanates in the Prosecution case as well as the impugned Judgment and Order on Sentence of the Learned Trial Court. The Appeal thereby warrants dismissal.