LAKHI RAM TAKBI Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Appellant was convicted under Section 3(a) and Section 5(j)(ii) of the Protection of Children from Sexual Offences Act, 2012 (for short "POCSO Act, 2012") and Section 376(1) of the Indian Penal Code, 1860 (for short "IPC, 1860") in S.T. (POCSO) Case No. 07 of 2015 by judgment dated 29.04.2017. Vide the order on sentence also dated 29.04.2017, he was sentenced to undergo Rigorous Imprisonment of seven years under Sections 3(a)/4 of the POCSO Act, 2012 and Rigorous Imprisonment of ten years under Sections 5(j)(ii)/6 of the POCSO Act, 2012. No separate sentence was imposed on him under Section 376(1) of the IPC, 1860 in view of Section 42 of the POCSO Act, 2012. The sentences were ordered to run concurrently. No sentence of fine was imposed.

(2.) Assailing the judgment and order on sentence, learned Counsel for the Appellant contended that no explanation is forthcoming for the belated lodging of the First Information Report (for short "FIR") Exhibit 15 on 17.12.2014, six months from the alleged incident, being June 2014. Neither the prosecutrix nor her immediate family had initiated steps for prosecuting the Appellant regarding the offence allegedly committed by him and it was only her brother-in-law who belatedly took the step. That, although reliance had been placed by the prosecution on the alleged Birth Certificates Exhibit 2 and Exhibit 10, of the prosecutrix, issued by the Registrar of Births and Deaths and the School Principal respectively and also on a certified copy of the School Admission Register, the contents of the documents remained unproved in the absence of examination of any witness in proof thereof. Consequently the age of the alleged victim too was not proved. The original entries in the Register of Births maintained by the Registrar of Births and Deaths and of the School Admission Register were not placed before the learned trial Court. Moreover the Birth Certificate, Exhibit 2, issued by the Registrar of Births and Deaths was prepared fifteen months from the date of birth of the prosecutrix rendering the document suspect, therefore the learned trial Court was in error in relying on the aforestated documents. Besides, considering that the age of the victim was seventeen years and six months at the time of the alleged incident and that of the Appellant twenty one years, assuming that the act was committed it was evidently consensual and hence not a ground for convicting the Appellant. To buttress his submissions, reliance was placed by learned Counsel for the Appellant on Biradmal Singhvi vs. Anand Purohit, 1988 AIR(SC) 1796, Alamelu vs. State, 2011 2 SCC 385 and Murugan alias Settu vs. State of Tamil Nadu, 2011 6 SCC 111. A peripheral argument emerged that in Sancha Hang Limboo v. State of Sikkim, reliance was placed on Sham Lal alias Kuldip vs. Sanjeev Kumar and Others, 2009 12 SCC 454 with regard to objection to documents at the appellate stage which was in fact a civil suit and the parameters in proving a criminal case and a civil suit differ. That in view of the facts and circumstances stated the impugned judgment and order on sentence deserves to be set aside.

(3.) Mr. S.K. Chettri, learned Assistant Public Prosecutor repelling the arguments of the Appellant would submit that although the victim was seventeen years and six months at the time of the incident, the POCSO Act, 2012 defines a child in Section 2(1)(d) as any person below the age of eighteen years. In such a circumstance, even if the victim was seventeen years and six months she is covered by the ambit of the definition. Although the Appellant may only be twenty one years of age and even assuming that the act was consensual, it does not vindicate the Appellant since law states with clarity that consent of a minor is no consent. It was further urged that the Birth Certificate issued by the Headmaster of the School where the victim was studying reveals her date of birth as 21.12.1996 and is recorded as such in the School Register. This is further fortified by the Birth Certificate issued by the Registrar of Births and Deaths which also reflects the victim's date of birth as 21.12.1996. It was the specific argument of learned Assistant Public Prosecutor that as the Birth Certificate of the victim, Exhibit 2 and the other public documents relied on by the prosecution were admitted unassailed by the Appellant at the stage of evidence, objections cannot be raised in the Appellate forum. On this aspect, reliance was placed on the ratio of Sancha Hang Limboo (supra). That the date of registration shown as 24.03.1998 on Exhibit 2, the Birth Certificate, is of no consequence in the instant matter as the document was obtained in 1998 much before the occurrence of the incident and cannot be said to be suspect. The statement of the victim suffices to convict the Appellant under the POCSO Act, 2012 as Section 29 therein provides that the Special Court shall presume that a person prosecuted for committing offence under Sections 3, 5, 7 and 9 of the POCSO Act, 2012 had committed the offence, unless the contrary is proved. Nothing to the contrary was proved by the Appellant. In the facts and circumstances stated hereinabove the judgment of the learned trial Court does not require any interference.