IMPORTANT POINT
Sexual assault on girl child – If evidence of witness is cogent, consistent and unwavering she qualifies as a sterling witness upon whose evidence conviction of perpetrator can be based.

JUDGMENT

Meenakshi Madan Rai, J.—The question that falls for determination before this Court is; Whether the impugned Judgment, dated 27-04-2021, in Sessions Trial (POCSO) Case No.10 of 2018, of the Learned Special Judge (POCSO), East Sikkim, at Gangtok, acquitting the Accused/Respondent can be said to be perverse, the word “perverse” meaning “against the weight of evidence”.

(i) The Prosecution narrative is that, Exhibit 1, the First Information Report (for short, the “FIR”), was lodged by P.W.1, the Ward Panchayat of the concerned area, before the concerned Police Station, on 18-12-2017, on having received a verbal report from P.W.4, the victim’s mother, informing him that the Respondent had attempted rape on the victim, P.W.3, aged about 10 years, on 17-12-2017, around 05.30 a.m. at the house of P.W.13, her aunt. Exhibit 1 was duly registered on the same date, under Section 8 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, the “POCSO” Act), against the Respondent and endorsed to P.W.15, the Investigating Officer (I.O.) for investigation, on completion of which, Charge-Sheet was submitted against the Respondent under Section 354A(1)(i) of the Indian Penal Code, 1860 (hereinafter, the “IPC”) read with Section 8 of the POCSO Act. The Learned Trial Court on taking cognizance of the offence, proceeded to frame charge against the Respondent under Section 9(m) of the POCSO Act, punishable under Section 10 to which the Respondent entered a plea of “not guilty”. Trial commenced and 15 Prosecution witnesses including the I.O. of the case deposed in order to prove the Prosecution case. On closure of Prosecution evidence, the Court examined the Respondent under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter, the “Cr.P.C.”), enabling him to explain the incriminating circumstances appearing in the evidence against him. He claimed to have been falsely implicated in the case by the victim and her mother and denied having sexually assaulted the victim. He chose not to examine any witness. The verbal arguments of Learned Counsel for the parties were then heard. On consideration of all the evidence on record, the Learned Trial Court acquitted the Respondent of the offence that he was Charged with.

2. Learned Additional Public Prosecutor for the State-Appellant canvassed the contention that the victim at the relevant time was 10 years old, while the Respondent was a married man, aged about 39 years and had children. The date of offence was 17-12-2017 and the FIR came to be lodged immediately on 18-12-2017, after the victim confided in her mother about the sexual assault. That, the victim has unwaveringly stated in her evidence before the Court and also in her Section 164 Cr.P.C. statement that the Respondent had pinched her right breast and as it caused her pain, she got up from the bed and went outside the room. On returning to her home that day she narrated the incident to her mother. She was then taken to the Police Station by her mother and P.W.1. Thereafter, P.W.11, the Doctor examined the victim and found pain and tenderness on the victim’s right breast, which was recorded by her in Exhibit 7. That, P.W.8, the Childline Team Member, corroborated the evidence of the victim, to the effect that, she was told by P.W.3 that the Respondent had inserted his hand inside her clothing and pinched her breast, while she was watching videos at the residence of her relative on the relevant morning. She showed her the pinch mark on one of her breasts’. That, P.W.4, the victim’s mother also corroborated the statement of P.W.3 to the effect that, her daughter had narrated to her that the Respondent had pinched her on her breast and had tried to insert his hand on her private part. The mother had also removed the jumper which the victim was wearing and found that one of her breasts’ was swollen, the evidence of the P.W.3, P.Ws 4, 8, 11 and 15, the I.O., are all corroborative. That, in Sunil Kumar Sambhudaya