TSHERING TEMPA SHERPA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Prosecution case against the Accused Tshering Tempa Sherpa (Appellant herein) commenced on a First Information Report (FIR), Exhibit 5, lodged against him, by P.W.12, the victims mother. A Charge-Sheet came to be submitted against him under Section 376 of the Indian Penal Code, 1860 (hereinafter, IPC) read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, POCSO Act, 2012). The Learned Trial Court framed Charges against the Appellant under Sections 5(l) and 5(k) punishable under Section 6 of the POCSO Act, 2012 and Sections 376(2)(n), 376(2)(i) and 376(2)(l) of the IPC. On the Appellant pleading "not guilty", the Prosecution examined fifteen witnesses and on consideration thereof the Learned Trial Court convicted the Appellant of the offences under Section 376(2)(l) and 376(2)(n) punishable under Section 376(2) of the IPC, but acquitted him of the offences under Section 5(l), 5(k) of the POCSO Act, 2012 and 376(2)(i) of the IPC.

(2.) Dissatisfied with the finding, the Appellant is before this Court. He assails the impugned Judgment on the grounds that although the victim alleged that he had sexually assaulted her on several occasions she did not complain of it to either her parents or anyone else. That, according to her, she continuously had sex with the Appellant for three months prior to the lodging of Exhibit 5 but this evidence is uncorroborated. The victim (P.W.9) also complained that the Appellant used to frequent her home and sexually assault her when she was alone and she had narrated the incident to P.W.5, who however failed to endorse this evidence of P.W.9. Contrarily P.W.1 has deposed that the Appellant told him that the victim had lured him to have sexual intercourse with her. Besides, the aforestated points the minority of the victim stood unestablished and the Learned Trial Court in the absence of any evidence opined that the victim was not a minor. Hence, the Appellant be acquitted of the Charges.

(3.) Refuting the contention raised by the Appellant, Learned Additional Public Prosecutor argued that although the Prosecution had furnished Birth Certificate of the victim before the Learned Trial Court in the absence of supporting documents it was not considered. That, infact the said document Exhibit 1 was never contested by the Appellant which therefore was an acceptance of the fact that the victim was a minor, her date of birth having been recorded as "03-06-2000" and the offence having occurred on 30-03-2016, thereby making her short of sixteen years of age. Relying only on the statement of the victim, it was contended that she has specifically stated that the Appellant had requested her to have sex with him holding out the promise that her deformities would be cured if she consented and acted on the consent. Thereafter, he frequently visited her house and sexually assaulted her repeatedly for two months. That, P.W.12 the victims mother has corroborated the evidence of the P.W.9 as she has stated that on the relevant day her child, the victim come crying and running to her shop and told P.W.12 that the Appellant had entered their house, forcibly laid her on the bed, taken off her lower garment and rubbed his penis on her vagina. When she shouted for help the Appellant let go. Hence, the conviction handed out by the Learned Trial Court and the consequent penalty ought to be upheld as no error emanates therein.