STATE OF SIKKIM Vs. SASHIDHAR SHARMA

JUDGEMENT

(1.) The Appellant is aggrieved with the Judgment dated 31.10.2015, in Sessions Trial (POCSO) Case No.03 of 2015 (State of Sikkim v. Sashidhar Sharma), acquitting the Respondent of the offences under Section 9(c), 9(l), 9(m) and 9(o), punishable under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (for short "POCSO Act).

(2.) Learned Public Prosecutor for the Appellant contends that the victim herein is a girl child of eleven years while the Respondent is her Teacher, aged about fifty five years. Drawing attention to the evidence furnished by the Prosecution, specifically to that of PW7 the minor victim and PW10, PW11, PW13 and PW14 students of the same School, it is urged that the evidence furnished by the witnesses pertaining to sexual assault of the victim has not been demolished. That, the learned trial Court acquitted the Respondent with the reasoning that from the evidence of the witnesses, it was apparent that there was hostile relationship between the "Bhujel family" and some Panchayat members with the Respondent and his family. That, some complaints regarding the Respondent and his family who were working in the same Primary School, had also been made prior to the alleged incident thus establishing inimical relations. That, in such view of the matter, it would not be proper to convict the Respondent. That, to the contrary, the evidence of the Prosecution witnesses reveal sufficient materials to establish the ingredients of Section 9(c), 9(l), 9(m) and 9(o) of the said Act. That, the statement of the victim recorded under Section 164 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") was not taken into consideration when this statement would establish consistency with the statement made by her before PW18, the Gynaecologist, who examined the victim. Hence, it is prayed that the impugned Judgment of acquittal be set aside.

(3.) Per contra, it was vehemently argued by learned Senior Counsel for the Respondent that there was a delay in the lodging of the First Information Report (for short "FIR") which itself lends suspicion to the allegation as the incidents are said to have occurred from the month of August, 2014 but the FIR came to be lodged only in November, 2014 sans explanation. That, the evidence on record clearly indicates discrepancies in the statements of the Prosecution Witnesses with regard to who the Class Monitor was at the relevant time as the victim asserts that she was the Class Monitor but her cross-examination elicited information to the contrary. That, the Medical Report given by PW18 indicates absence of external injuries on the victim as her hymen edges were found intact while the hymen opening admitted only the tip of the small finger thereby ruling out penetrative sexual assault. Exhibit 19, the Medical Report prepared by PW17, the Doctor who first examined the victim also found no signs of sexual assault duly substantiated by the evidence of PW18 the Gynaecologist. The learned trial Court had also correctly observed that if penetrative sexual assault had been committed by the Respondent, old injuries on the victim's genital would have indicated the occurrence of such incidents, or the victim would have informed some members of her family of the offence on account of the pain but this was not so. The learned trial Court has also found that the incidents stated by the victim were uncorroborated. That, it is clear from the conduct of the victim that no sexual assault was committed on her as she could have easily raised an alarm on such occurrence as the wife of the Respondent and two Teachers related to the Respondent were working in the same School. That, in fact, it is the mere enmity of the "Bhujel family" which has led to the lodging of a false complaint and all the minor witnesses are either from the said family or related to them. Moreover Exhibit D1(a) and Exhibit D2(a), also supports the contention of the Counsel for the Respondent that some villagers were against the Respondent. It was next contended that as the age of the victim has remained unproved on the absence of proof of her Birth Certificate and thereby she is not covered by the ambit of the POCSO Act. Hence, on the anvil of the anomalies in the evidence of the victim herself, the Respondent did deserve an acquittal and the finding of the learned trial Court is not erroneous.