KUMAR RAI Vs. STATE OF SIKKIM

JUDGEMENT

(1.) This Appeal assails the Judgment, dated 26-02-2018 and Order on Sentence, dated 27-02-2018, of the Learned Special Judge, POCSO Act, 2012, South Sikkim, at Namchi, in Sessions Trial (POCSO) Case No.10 of 2016, vide which the Appellant was convicted under Sections 323, 341, 307 of the Indian Penal Code, 1860 (hereinafter, IPC) and Sections 7 and 9(r) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, POCSO Act, 2012). The Appellant was sentenced to undergo simple imprisonment for a period of five years and to pay a fine of Rs.5,000/- (Rupees five thousand) only, under Section 9(r) of the POCSO Act, 2012. He was sentenced to undergo simple imprisonment for a period of three years and to pay a fine of Rs.2,000/- (Rupees two thousand) only, under Section 7 of the POCSO Act, 2012. For the offence under Section 307 of the IPC, he was sentenced to undergo simple imprisonment for a period of three years and to pay a fine of Rs.1,000/- (Rupees one thousand) only. All the above sentences of fine bore default clauses of imprisonment. For the offence under Section 323 of the IPC, the convict was sentenced to undergo simple imprisonment for a period of six months and simple imprisonment for a period of one month under Section 341 of the IPC. The sentences imposed were ordered to run concurrently. The fine, if recovered, was to be made over to the victim as compensation.

(2.) Learned Counsel for the Appellant before this Court contended that the impugned Judgment deserves to be set aside as the Prosecution failed to examine two ladies who allegedly witnessed the victim and the Appellant at the place where she was allegedly being sexually assaulted and strangulated, consequently an adverse inference can be drawn against the Prosecution on this aspect. The victim P.W.1, was allegedly required to hand over money to her aunt after which on her return walk back home the alleged incident occurred but the said aunt was neither cited as a witness nor examined by the Prosecution to verify the evidence of P.W.1. No proof of age of the victim was furnished by the Prosecution and doubts in this context arise as the documents on record indicate the victim's age to be 14, while the victim herself stated that she was 15 years. The occurrence of the incident is doubtful as vehicles frequent the road above the place of occurrence as duly admitted by the Investigating Officer (I.O.). Infact, the Complainant wrongly foisted the allegation on the Appellant who was arrested on mere suspicion as emanates from the I.O's evidence. The Medical Officer testified that the injuries on the body of the victim could also be caused by a fall on a hard surface, hence the allegation of the victim that the Appellant forcibly sexually assaulted her is false and fabricated as borne out by evidence. The Learned Trial Court overlooked the denials made by the Appellant to questions put to him under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter, Cr.P.C.). Hence, the impugned Judgment and consequent Order on Sentence deserves to be set aside.

(3.) Disputing the contentions of Learned Counsel for the Appellant, Learned Additional Public Prosecutor canvassed the argument that no error arises in the findings of the Learned Trial Court and invited the attention of this Court to the medical examination of the Appellant which, according to him, categorically revealed injuries on the nose and the eyelid of the Appellant indicating the fight put up by the victim in an effort to ward him off. Exhibit 11, the victim's medical report revealed injuries on the victim while the Doctor P.W.9 who examined her has stated that the victim gave a history of assault with sexual intent although penetration did not occur. In light of the injuries on both the person of the victim and the Appellant the Prosecution case is unequivocally established. No evidence controverts the age of the victim which was stated to be 15 years at the time of incident although no documents were furnished in this context, the lack of questions in crossexamination of the victim substantiated the Prosecution stand.