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2017 Supreme(Sikk) 4
IN THE HIGH COURT OF SIKKIM AT GANGTOK
Meenakshi Madan Rai, J.
Arjun Subba - Appellant
Vs.
State of Sikkim - Respondent
Crl. A. No. 27 of 2015
Decided On : 18-04-2017
For the Appellant : S.S. Hamal, Legal Aid Counsel.
For the Respondent: S.K. Chettri and Pollin Rai, Assistant Public Prosecutors.
The main legal point established in the judgment is the interpretation and application of the legal provisions related to sexual assault under the POCSO Act and IPC, emphasizing the presumption of guilt and the importance of corroborative evidence.
Headnote:
POCSO Act - Sexual Assault - Section 8 of POCSO Act, 2012, Section 354B of IPC - Section 8 of POCSO Act - Section 354B of IPC
Fact of the Case:
The case involved the Appellant's conviction under Section 8 of the POCSO Act and Section 354B of the IPC for attempting to sexually assault a minor. The Prosecution alleged that the Appellant had attempted to rape the minor victim on two occasions, leading to the filing of an FIR and subsequent trial.
Finding of the Court:
The court found the Appellant guilty of sexual assault based on the evidence presented by the Prosecution witnesses, including the victim's mother, eyewitnesses, and medical examination reports. The court rejected the Appellant's defense and upheld the lower court's judgment, dismissing the appeal.
Issues: The main issues revolved around the credibility of the Prosecution's evidence, the intent of the Appellant, and the interpretation of the relevant legal provisions under the POCSO Act and IPC.
Ratio Decidendi: The court relied on the testimonies of the witnesses, the definition of sexual assault under Section 7 of the POCSO Act, and the elements of the offense under Section 354B of the IPC to establish the guilt of the Appellant. The court emphasized the absence of a credible defense and the presumption of guilt under Section 29 of the POCSO Act.
Final Decision: The court dismissed the appeal and upheld the lower court's judgment, affirming the Appellant's conviction under Section 8 of the POCSO Act and Section 354B of the IPC.
Meenakshi Madan Rai, J.
1. Dissatisfied by the Judgment and the Order on Sentence, both dated 30-07-2014, passed by the Learned Special Judge (Protection of Children from Sexual Offences Act, 2012), South Sikkim, at Namchi, in Sessions Trial (POCSO) Case No. 10 of 2013, the Appellant is before this Court. The Appellant having been found guilty of the offence under Section 8 of the Protection of Children from Sexual Offences Act, 2012 (for short "POCSO Act") and Section 354B of the Indian Penal Code, 1860 (for short "IPC"), was sentenced as follows;
(i) For the offence under Section 8 of the Protection of Children from Sexual Offences Act, 2012 the convict is sentenced to undergo Simple Imprisonment for a period of Four and a half years and to pay a fine of Rs. 50,000/- (Rupees Fifty thousand) only. In default to pay the said amount of fine he shall undergo further Simple Imprisonment for a period of six months; and
(ii) For the offence under Section 354-B of the IPC, 1860 he is sentenced to undergo Simple Imprisonment for a period of Four and a half years and to pay a fine of Rs. 50,000/-(Rupees Fifty thousand) only. In default to pay the said amount of fine he shall undergo further Simple Imprisonment for a period of six months.
The sentences of imprisonment were ordered to run concurrently, duly setting off the period already undergone by the Appellant. The amount of fine, if realised, was to be paid to the minor victim (hereinafter "P.W. 9"). The Appellant was also charged under Section 354 of the IPC and Section 8 of the POCSO Act for the offence allegedly committed on 14-07-2013, however, no conviction was arrived at on this count in the absence of evidence of P.W. 9.
2. In order to reach a finding of the Appellant's guilt or otherwise, it would be essential to briefly walk through the facts of the case and thereafter, analyse the evidence on record.
3. The Prosecution version that unravelled during trial is that, on 14-07-2013, P.W. 1 Leela Maya Subba, mother of P.W. 9, lodged Exhibit 1, the FIR, before the Namchi Police Station, South Sikkim, reporting therein that her second husband had attempted to rape P.W. 9 (the Complainant's daughter from her first husband), when she was asleep. Based on the FIR, the Namchi P.S. registered a case on the same day under Sections 376/511 of the IPC and commenced investigation. The facts revealed during such investigation was that, P.W. 9 was living with her maternal grandparents after the separation of her parents as her mother having remarried was living with her second husband, the Appellant, at Lower Maneydara, South Sikkim. During the relevant time, P.W. 9 went to her mother's house for the Summer Vacation and thereafter decided to live with her mother and step-father. On 12-07-2013 at about 9 a.m., when P.W. 9 was asleep, she heard someone shouting and woke up to find her trousers pulled down to her knees, while her step-father was wrapping a towel around his waist. This was witnessed by P.W. 2, Bal Krishna Chhetri, who was the person calling out to the Appellant which had woken P.W. 9. Being uneasy with the situation, she went to her aunt's house, but en route met P.W. 5 Prem Kit Lepcha and P.W. 3 Sanchaman Rai and narrated the incident to them, apart from narrating it to one Sunil Chettri, who, as records reveal was not included as a Prosecution witness. She was advised by P.W. 5 not to inform her mother of the incident as a fight could ensue between the mother of P.W. 9 and the Appellant. On 14-07-2013 at about 0600 hours, again, when she was asleep, the Appellant allegedly came to her bed and tried to rape her, but fortunately she managed to defend herself and informed her mother of the incident upon which Exhibit 1 came to be lodged. The I.O. forwarded P.W. 9 and the Appellant for medical examination. On completion of investigation, Charge-Sheet was submitted against the Appellant under Sections 376/511 of the IPC.
4. The Learned Trial Court framed Charge against the App
