SHIVA KALA SUBBA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Court of the learned Special Judge, Protection of Children from Sexual Offences Act, 2012 (hereinafter the "POCSO Act"), West Sikkim at Gyalshing, by the impugned Judgment dated 24.02.2017, convicted the Appellant of the offences under Section 5(m), Section 5(n) of the POCSO Act and Section 323 of the Indian Penal Code, 1860 (hereinafter the "IPC"). Consequent thereto the Appellant was sentenced as follows;

(2.) Assailing the finding of the learned trial Court, learned Counsel for the Appellant while inviting the attention of this Court to the First Information Report, Exhibit 1, dated 31.07.2015, contended that the document contains no imputation of sexual assault by the Appellant against the victim. This aspect has been ignored by the Prosecution in totality. In fact it brings to light the facet that her step father had previously sexually assaulted her. That, the First Information Report (Document "X"), said to be lodged by the Protection Officer of the Child Welfare Commission would reiterate the allegation against the victim's step father, to the effect that he sexually assaulted her a few months back at Tadong, Gangtok. This statement also finds credence in the Statement of the victim under Section 164 of the Code of Criminal Procedure, 1973 (hereinafter "Cr.P.C.") which contains no allegation of sexual assault by the Appellant. The medical examination of the victim confirmed the fact of sexual assault, however the Investigating Officer (hereinafter "I.O.") of the case while conducting the investigation, relied only upon Exhibit 1, received on 31.07.2015 said to be made by the victim's School Teacher to the detriment of the Appellant. That, the Appellant was arrested during the course of investigation while the victim's step father despite being the perpetrator of an attempt to sexually assault her was left scot free. That, the injuries which are revealed in the Medical Report of the victim Exhibit 3'A' are indicative of old healed scar marks in the genital area, thereby corroborating the victim's allegation that her step father had sexually assaulted her. That, Exhibit 4'A' Medical Report prepared by the Gynaecologist after conducting medical examination on the victim also reveals that the victim had a history of sexual abuse by her step father a few months back. That, despite such specific allegation, no steps were taken against the said step father and the emphasis of the investigation has been only on the Appellant. That, P.W.4 a Teacher in the victim's School had stated that the victim had told her and some other Teachers that her step father had attempted to sexually assault her, while the Appellant tortured her daily. That P.W.5, the Doctor (Medical Officer) who examined the victim had stated that, the victim was produced at the Primary Health Centre with an alleged history of having been "physically and mentally assaulted" by the Appellant, devoid of any allegation of sexual assault. Hence, sexual assault or culpable mental state for such assault by the Appellant is ruled out. That, the I.O. in his evidence lends support to the statement contained in Exhibit 1 that the victim's step father had attempted to sexually assault her. It was also alleged that the learned trial Court has failed to exercise care and caution while considering the inconsistent statements of the witnesses and the Statement of the victim. That, it is now settled law that as a rule of practical wisdom the evidence of child witnesses must be considered along with adequate corroboration but variations occur in the statement of the victim under Section 164 Cr.P.C. Statement and in her evidence before the learned trial Court. That, the said circumstances as also the arguments supra require that the benefit of doubt be extended to the Appellant. The evidence of the witnesses being beset with anomalies, the impugned Judgment and Order on Sentence of the learned trial Court ought to be set aside.

(3.) Resisting the assertions of learned Counsel for the Appellant, the learned Additional Public Prosecutor would contend that in the first instance. Document X sought to be relied on by the Appellant was in fact not an Exhibit before the learned trial Court and deserves no consideration by this Court. That, it is the victim's case that the Appellant used to hit her on her hands, legs, back and her head sometimes with heavy objects and also bite her on her legs and hands apart from inserting soap in her genital. That, the Section 164 Cr.P.C. Statement of the victim duly corroborates the statement given by her before the learned trial Court. To clear the air on the sexual assault allegedly committed by the victim's step father, learned Public Prosecutor submitted that the step father had indeed been arrested on suspicion of the offence but was discharged by the Police due to lack of materials. That, from the Section 164 Cr.P.C. Statement of the victim, it appears that she had implicated her step father out of fear of the Appellant, moreover the victim has stated therein that the Appellant threatened to kill her if she refused to extend sexual favours to her step father. That, the evidence of P.W.5 who examined the victim reveals that the injuries found on the person of the victim was detected to have been inflicted within a span of less than twenty four hours to seventy two hours, the victim has admittedly been living with the Appellant from the month of November 2014, in such a circumstance the question of doubting the victim's step father in the offence are far-fetched and a mere allegation made by the Appellant to shift the blame on her step father. That, the evidence of P.W.6, the Gynaecologist who examined the victim clearly indicates that when he examined the victim, she told him that her aunt had pushed soap in her private area and on his examining the child he found injuries as described in Exhibit 4'A,' his Medical Report. P.W.6 also found evidence of recent sexual abuse as well as physical abuse pointing to the guilt of the Appellant. Accordingly, no reason emerges to interfere in the impugned Judgment and Order on Sentence.