DINESH BAITHA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) This appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') is preferred against the Judgment dated 19.12.2018 and the Order on Sentence dated 20.12.2018 passed by the learned Special Judge, Protection of Children from Sexual Offences (POCSO) Act, 2012, East Sikkim at Gangtok, in Sessions Trial (POCSO) Case No. 05 of 2017. By the impugned Judgment, the appellant was convicted under Section 5 (m) punishable under Section 6 of the POCSO Act, 2012 and under Section 342 of the Indian Penal Code (for short ,,IPC). However, he was acquitted of the charge under Section 377 IPC. Resultantly, the appellant was sentenced to undergo rigorous imprisonment for a period of ten years and fine of Rs.5,000/- (Rupees five thousand) under Section 5 (m) punishable under Section 6 of the POCSO Act, 2012, in default, to undergo simple imprisonment for six months, and also to undergo imprisonment for a period of one year and fine of Rs.1,000/- (Rupees one thousand) under Section 342 of the IPC and in default, to undergo simple imprisonment for one month. Both the sentences were directed to run concurrently and the period of imprisonment already undergone by the appellant during investigation and trial was set off. A compensation of Rs.1,00,000/- (Rupees one lakh) was also awarded to the victim under the Sikkim Compensation to Victims or his Dependents Scheme, 2011.

(2.) Prosecution case, in brief, is that on 08.12.2016 at around 1650 hours, victim (hereinafter also referred to as 'X') accompanied by his father and mother had appeared at Rangpo Police Station and based on the oral complaint of 'X', which was reduced into writing, FIR No. 70(12)16 dated 08.12.2016 under Sections 341, 377 IPC read with Section 4 of the POCSO Act, 2012 was registered against the appellant. It was alleged that on 08.12.2016 when 'X' was on his way home after playing with his friend Deepan, he had met the appellant who took him to one building. Though he had wanted to come back, as the appellant promised him to give Rs.10/-, he stayed back and then he was pressurized to remove his half-pant and the appellant had inserted his finger in his anus. After that he ran away from the place of occurrence and reaching his house he narrated the incident to his mother, who, thereafter, along with 'X', went in search of the appellant, who was found sitting in a room and thereafter, they had gone to the Police Station along with the appellant.

(3.) During investigation, the Investigating Officer (PW 10) had forwarded 'X' to Rangpo PHC for medical examination, where he was examined by PW 5. The appellant was also sent for medical examination to Rangpo PHC and he was also examined by PW 5. On 08.12.2016 itself the appellant was arrested. Statement of 'X' was also recorded under Section 164 Cr. P.C. by the Chief Judicial Magistrate, East Sikkim at Gangtok (PW 4). The victim was also medically examined by the Doctor in STNM Hospital, Gangtok (PW 8). On completion of investigation, finding, prima facie, sufficient materials for proceeding against the appellant, charge-sheet under Section 377 IPC read with Section 5 (m)/6 of the POCSO Act, 2012 as well as Section 342 IPC was submitted and accordingly S.T. (POCSO) Case No. 05 of 2017 was registered in the Court of Special Judge, POCSO Act, 2012, East Sikkim at Gangtok.