PEMA SHERPA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Appellant herein is aggrieved by the Judgment and Order on Sentence, both dated 21-12-2018, in Sessions Trial (POCSO) Case No.29 of 2017, by which he was convicted of the offence under Sections 9(l), 9(m) and 9(n) punishable under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, POCSO Act, 2012) and under Section 354A(1)(i) of the Indian Penal Code, 1860 (hereinafter, IPC). Pursuant to the conviction, the Appellant was sentenced to undergo rigorous imprisonment for a period of 5 years and fine of Rs.2,000/- (Rupees two thousand) only, each, under Sections 9(l), 9(m) and 9(n) punishable under Section 10 of the POCSO Act, 2012. Under Section 354A(1)(i) of the IPC the Appellant was to undergo simple imprisonment for a period of one year and fine of Rs.1,000/- (Rupees one thousand) only. The sentences of imprisonment were ordered to run concurrently and the sentences of fine bore default clauses of imprisonment. The Learned Trial Court had also ordered that the fine, if recovered, shall be made over to the victim as compensation.

(2.) The challenge to the impugned Judgment pivots around the medical report of the victim, P.W.1 which according to Learned Counsel for the Appellant does not prove the act of sexual assault upon her by the Appellant thereby requiring the Appellant's acquittal, apart from which the age of P.W.1 has remained unproved by the Prosecution. That, the evidence of P.W.1 is unreliable as in her statement before the Court she asserted that the act of sexual assault was perpetrated on her by the Appellant in the year 2016 when she was alone at home, her step- mother having abandoned her and her father. In contradiction thereto, the step-mother stated that she was living apart from the victim and the Appellant only since 2017 thereby rendering doubtful the victim's statement. That, infact the victim has admitted that the Appellant was a strict parent and on this account it is likely that she has falsely implicated the Appellant, hence the Appellant ought to be acquitted.

(3.) Per contra, it was argued by Learned Assistant Public Prosecutor that the Prosecution has established beyond a reasonable doubt that the victim was eleven years at the time of the incident and as the victim herself has stated that she was molested by the Appellant, the question of proof by medical report does not arise. Besides, as the Charge would indicate, the offence alleged was not penetrative sexual assault, but only of fondling of various body parts of the victim which would not be visible during medical examination. Hence, no error arises in the conviction of the Appellant by the Learned Trial Court by the impugned Judgment dated 21-12-2018 and the Appeal deserves a dismissal.