LOK PRASAD LIMBOO @ LOKAY Vs. STATE OF SIKKIM

JUDGEMENT

(1.) In Sessions Trial (POCSO) Case No.13 of 2017 the Appellant faced trial under Section 7 and Section 9(l) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, POCSO Act) and Section 354 of the Indian Penal Code, 1860 (hereinafter, IPC). Vide the impugned Judgment dated 31-05-2018, the Appellant was convicted on two counts for the offence under Section 7 of the POCSO Act, Section 9(l) of the POCSO Act and on two counts for the offence under Section 354 of the IPC. Consequently, he was sentenced to suffer simple imprisonment of four years on each count of the offence under Section 7 of the POCSO Act with fine of Rs.30,000/- (Rupees thirty thousand) only, each, with default clauses of imprisonment. For the offence under Section 9(l) of the POCSO Act, he was sentenced to undergo simple imprisonment for a period of five years and to pay a fine of Rs.40,000/- (Rupees forty thousand) only, also with a default clause of imprisonment. On each count of the offence under Section 354 of the IPC, simple imprisonment for a period of four years and fine of Rs. 40,000/- (Rupees forty thousand) only, each, default clauses of imprisonment were prescribed. The periods of imprisonment were ordered to run concurrently.

(2.) Dissatisfied with the impugned Judgment and Order on Sentence the Appellant is before this Court contending that in the first instance no evidence determines that the victim was a minor as her Birth Certificate was not seized. Secondly, the victim complained of sexual assault on two occasions and deposed that when the earlier incident occurred her brother had also accompanied her to the shop of the Appellant for some errand. P.W.5, her brother however did not shed any light on this aspect in his evidence. It was next contended that when the first alleged sexual assault took place the victim did not disclose it to any person neither did she reveal it in her statement under Section 164 of the Code of Criminal Procedure, 1973 (for short, Cr.P.C.) to the Learned Magistrate and came to light for the first time in her evidence before the Court, thereby reeking of falsity. That, the evidence of the victim indicates a motive to falsely implicate the Appellant as she had stated that her uncle P.W.3 and the Appellant did not share cordial relations. It was urged that prior to the alleged incident the victim frequented the shop of the Appellant but no such incident had ever been complained of. That, in all likelihood she was tutored by her uncle and aunt to depose against the Appellant when she went to record her statement under Section 164 Cr.P.C. That, the victims case is that she had gone to the shop of the Appellant at 7 p.m. when infact his shop closes down at 6 p.m., revealing the intent of P.W.3 and P.W.4 to falsely implicate the Appellant by sending her after his shop closed. The Appellant, for his part has clearly denied the allegations made against him in his responses under Section 313 Cr.P.C. The medical evidence does not support the Prosecution case, accordingly the case not having been proved beyond a reasonable doubt, the Appellant deserves an acquittal.

(3.) Learned Assistant Public Prosecutor refuting the contentions so advanced, argued that no doubt arises on the age of the victim, since Exhibit 9, the Admission Register of the School in which she was admitted, was produced in evidence before the Learned Trial Court and proved. That, the victims name and date of birth is recorded therein and the Headmistress of the School, P.W.10, has vouched for the authenticity of the entries by her evidence and issuance of a Certificate Exhibit 10. The incident took place on 27-06-2017, hence the victim was a minor in terms of the POCSO Act her date of birth being 02-10- 2000. The victim has categorically described the sexual assault perpetrated on her by the Appellant. That, in his response to Question no.4 of the Section 313 Cr.P.C. statement, the Appellant admitted that the victim had indeed come to his shop to purchase biscuits. That, this statement itself confirms the victims presence at the place of occurrence. Hence, in view of the evidence furnished by the Prosecution no requirement arises to interfere with the impugned Judgment and Order on Sentence.