PALDEN SHERPA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Appellant seeks to assail the judgment of conviction dated 15.11.2018 and the order on sentence dated 16.11.2018 passed by the learned Special Judge, Protection of Children from Sexual Offences Act, 2012 (POCSO Act) in Sessions Trial (POCSO) Case No.10 of 2017. The Appellant was convicted under Section 3(a) of the POCSO Act and sentenced to seven years of rigorous imprisonment and a fine of Rs.5,000/-. He was also convicted under Section 341 of the Indian Penal Code (IPC) and sentenced to simple imprisonment for a period of one month and a fine of Rs.1000/-.

(2.) Ms. Tamanna Chettri, learned Legal Aid Counsel for the Appellant challenged the judgment and sentence on two grounds. It was submitted that the age of the victim was not proved. It was further submitted that the medical evidence disproves the case of the prosecution of penetrative sexual assault. Mr. S. K. Chettri learned Assistant Public Prosecutor per contra submitted that the victim's evidence cannot be doubted; the identification of the Appellant is certain; the prosecution had been able to prove the age of the victim before the trial Court and there is no conflict between medical and ocular evidence. Age of the victim

(3.) Determination of the age of the victim during the trial for offences under the POCSO Act is imperative. The learned Special Judge has examined the birth certificate (exhibit-2) and the deposition of Dr. Amber Subba, Medical Officer-(P.W.24) who had issued the said certificate; Certificate (exhibit-6) issued by the Head Mistress (P.W.9) of the Government School attended by the victim and the person who issued it and the bone age estimation of the victim (exhibit-17) and Dr. K. Giri-(P.W.16) who conducted the bone age estimation and came to the conclusion that the victim was a minor.