NIMA TAMANG Vs. STATE OF SIKKIM

JUDGEMENT

(1.) Aggrieved with the Judgment dated 12.12.2017 of the learned Special Judge, Protection of Children from Sexual Offences Act, 2012 (for short the "POCSO Act"), in Sessions Trial (POCSO) Case No. 16 of 2016 (State of Sikkim v. Nima Tamang), the Appellant is before this Court challenging the conviction and the sentence. The Appellant was convicted under Section 5 (m) punishable under Section 6 of the POCSO Act. He was sentenced to undergo Rigorous Imprisonment for a period of ten years and to pay a fine of Rs.5,000/- (Rupees five thousand) only, with a default clause of imprisonment. The fine, if recovered, was to be made over to the victim, as compensation.

(2.) Mr. Gulshan Lama, learned Legal Aid Counsel for the Appellant, would firstly assail the First Information Report (for short the "FIR"), Exhibit 3, as according to him, it was lodged belatedly, the incident allegedly having occurred on 16.05.2016 while the FIR came to be lodged only on 20.05.2016. It was also contended that the age of the minor victim remained unproved despite seizure of the victim's Birth Certificate as her parents were not examined as witnesses neither were witnesses to the seizure of the Birth Certificate produced. The Investigating Officer (for short the "I.O.") is the only witness who stated that the Birth Certificate was handed over to her by the victim's mother which remained unestablished on account of non-examination of the victim's mother. Consequently, as the age of the victim has not been proved, the charge under Section 5(m) of the POCSO Act is not the relevant provision of law to have charged or convicted the Appellant. Towards this contention, reliance was placed on Jarnail Singh v. State of Haryana, 2013 7 SCC 263. Reliance was also placed on the decision of this Court in Lall Bahadur Kami v. The State of Sikkim, 2018 CrLJ 439 (SC) . Conceding that the victim may well be below 18 years of age, it was urged that however nothing emanates to establish the victim being below 12 years of age. According to him, there are inconsistencies in the evidence of the victim and the cousin of the victim, PW10 which strike at the root of the Prosecution case since according to the victim, she went to the house of her cousin, PW10 whereas PW10 states that she had called the victim to her residence. Moreover, there is also a variation in the evidence of the victim before the Court and in her Statement under Section 164 of the Code of Criminal Procedure, 1973 (for short the "Cr.P.C."). Considering the evidence on record and the anomalies in the Prosecution case, the impugned Judgment and Order on Sentence deserves to be set aside and the Appellant acquitted.

(3.) Per contra, Mr. Thinlay Dorjee Bhutia, Additional Public Prosecutor for the State contended that he relies on the evidence of PW7, Dr. R.N. Deokota to establish the age of the victim. That, the witness has clearly identified Exhibit 9A as the Birth Certificate of the victim issued by him. Once the witness identifies the said document as having been issued by him, there is no reason to doubt the veracity of the witness's statement or the document. On this count, reliance was placed on the decision of this Court in Sancha Hang Limboo v. State of Sikkim, 2018 SLR 1 SIKKIM. The commission of the act is consistent as can be gauged from the evidence of the Prosecution witnesses. PW5, the Doctor who examined the victim has given proof of the fact of the occurrence of the incident. Hence, in this view of the matter, the findings of the learned trial Court ought not to be disturbed.