PASSANG DORJEE TAMANG Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Appellant was convicted under Sections 5(m) and 5(p) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, POCSO Act, 2012) punishable under Section 6 of the POCSO Act. He was sentenced to undergo rigorous imprisonment for a period of 10 years and pay a fine of Rs.5,000/- (Rupees five thousand) only, under each of the sections supra. The sentences were ordered to run concurrently with default clauses of imprisonment. Aggrieved thereof, the Appellant assails the Judgment, dated 25-04-2018 and Order on Sentence, dated 26-04-2018, of the Learned Special Judge, POCSO Act, 2012, South Sikkim, at Namchi, in Sessions Trial (POCSO) Case No.21 of 2016.

(2.) The Appellant herein was accused of sexually assaulting a five year old girl child P.W.6, on 11-08-2016, while bringing her home from school in his taxi. The Appellant was a taxi driver by profession and the victim along with several other children were taken to school and dropped off to their homes after school, in his taxi. On the relevant day, the victim was the last child in the taxi to be taken home, en route the Appellant took her to an isolated place, sexually assaulted her and then took her home. P.W.6 narrated the ordeal to her parents and on the same day, at around 1845 hours, her father, P.W.2, lodged the Complaint, Exhibit 3, before the concerned Police Out Post. Investigation into the matter revealed the aforestated facts, pursuant to which Charge-Sheet was submitted against the Appellant under Section 376 of the Indian Penal Code (IPC) read with Sections 4, 6 and 8 of the POCSO Act, 2012. The Learned Trial Court framed Charges against the Appellant under Sections 376(2)(f), 376(2)(i), 354B of the IPC and under Sections 5(m) and 5(p) punishable under Section 6 of the POCSO Act, 2012. On the Appellant entering a plea of "not guilty" to the Charges, the Prosecution examined 10 witnesses to establish its case beyond a reasonable doubt. The Appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter, Cr.P.C.) where he claimed to be falsely implicated in the matter, no reason for such implication was detailed. On considering the evidence, the Learned Trial Court pronounced the impugned Judgment and Order on Sentence.

(3.) The grounds raised in the Appeal are that the Prosecution failed to examine any other student who was a passenger in the taxi to establish the victim's presence in the vehicle or whether infact the victim had gone to school on the relevant day. That, no effort was made by P.W.10 the Investigating Officer (I.O.) to seize the Attendance Register of the victim's class to establish this aspect, apart from which no independent witnesses were furnished to establish the Prosecution case. It was also contended that there are anomalies in the evidence of P.W.3 and P.W.5 witnesses to the seizure of M.O.I, underwear of the Appellant, while the uniform worn by the victim during the alleged incident was not seized at all. The evidence of P.W.5 reveals that when the seizure of the vehicle Maruti Car was made by the Police it was at the Ravangla Police Station, raising doubts as to whether the Appellant had indeed driven the vehicle on the relevant day. Hence, in view of the aforestated shortcomings the impugned Judgment ought to be set aside.