Back
2017 Supreme(Sikk) 19
IN THE HIGH COURT OF SIKKIM AT GANGTOK
MEENAKSHI MADAN RAI, BHASKAR RAJ PRADHAN, JJ.
Taraman Kami, S/o Shri Parcha Bir Kami and Ors. - Appellant
Versus
State of Sikkim and Ors. - Respondent
Crl.A. No.32 of 2016, 13 of 2017
Decided on : 01-12-2017
Advocate Appeared:
For the Appellant :Mr. Jorgay Namka, Advocate (Legal Aid Counsel) with Ms. Panila Theengh, Advocate.
For the Respondent: Mr. J. B. Pradhan, Public Prosecutor with Mr. S. K. Chettri and Mrs. Pollin Rai, Assistant Public Prosecutors.
The burden of proving innocence shifts to the accused in cases under the POCSO Act, and the limitations of using Section 164 Cr.P.C. statement as substantive evidence were emphasized by the court.
Headnote:
POCSO Act - Conviction under Section 9(n) - [POCSO Act, Section 5(l), Section 5(n), Section 506 of the IPC]
Fact of the Case:
The case involved the conviction of the appellant for incestuous sexual assault under Sections 5(l) and 5(n) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), and under Section 506 of the Indian Penal Code (IPC). The appellant was sentenced to rigorous imprisonment and fined. The state appealed for imposition of the maximum sentence, arguing that the trial court failed to consider the incestuous nature and gravity of the offence.
Finding of the Court:
The court found that the appellant's conviction under Section 5(n) of the POCSO Act was not established, and the sentence was set aside. The appellant was convicted under Section 9(n) of the POCSO Act and sentenced to 5 years imprisonment and a fine. The appeal by the state was dismissed.
Issues: 1. Whether the appellant could be convicted and sentenced for an alleged offence against 'Victim A' without an FIR based on her statement under Section 161 of the Cr.P.C.? 2. Whether there was any perversity in the impugned Judgment of the Learned Trial Court?
Ratio Decidendi: The court held that the appellant's conviction under Section 5(n) of the POCSO Act was not established, and the offence of penetrative sexual assault was not proven. The court also emphasized the importance of the FIR in a criminal offence and the need for corroborative evidence in cases of sexual assault. The court further highlighted the burden of proving innocence on the accused and the limitations of using Section 164 Cr.P.C. statement as substantive evidence.
Final Decision: The appellant's conviction under Section 5(n) of the POCSO Act was set aside, and the sentence was annulled. The appellant was convicted under Section 9(n) of the POCSO Act and sentenced to 5 years imprisonment and a fine. The appeal by the state was dismissed.
How to determine whether a conviction can be recorded against a minor victim based on her Section 161 Cr.P.C. statement without an FIR?
What is the role and admissibility of Section 164 Cr.P.C. statements as substantive evidence in POCSO cases?
What are the circumstances under which Section 29 of the POCSO Act creates a presumption, and how does it interact with Section 313 Cr.P.C. in this case?
MEENAKSHI MADAN RAI, J.
1. Crl.A. No.32 of 2016 (Taraman Kami vs. State of Sikkim) and Crl.A.13 of 2017 (State of Sikkim vs. Taraman Kami) are being disposed of by this common Judgment, being related matters.
2. In Crl.A. No.32 of 2016, the Learned Court of the Special Judge (POCSO), West Sikkim, at Gyalshing, in Sessions Trial (POCSO) Case No.05 of 2016, convicted the Appellant for incestuous sexual assault under Sections 5(l) and 5(n) of the Protection of Children from Sexual Offences Act, 2012 (for brevity “POCSO Act”), and under Section 506 of the Indian Penal Code (for short the “IPC”), vide the impugned Judgment dated 27-09-2016. He was sentenced to rigorous imprisonment of 10 (ten) years and fined Rs.5,000/- (Rupees five thousand) only, under Sections 5(l) and 5(n) of the POCSO Act, with a default stipulation, and simple imprisonment of one year under Section 506 of the IPC. The sentences were ordered to run concurrently, duly setting off the detention already undergone by the Appellant. The Judgment and Order on Sentence are being assailed in this Appeal.
3. In Crl.A. No.13 of 2017, the State-Appellant assailed the Order on Sentence detailed hereinabove, and prayed for imposition of the maximum sentence provided by law, inter alia, on grounds that the Learned Trial Court failed to consider the incestuous nature and gravity of the offence, the perpetrator being the father of the victim. This was vehemently resisted by Counsel for the Respondent on the premise that no such offence against the victim had been made out beyond a reasonable doubt by the Prosecution.
4. Advancing his arguments on behalf of the Appellant in Crl.A. No.32 of 2016, Learned Counsel put forth the contention that although the mother of the victim, P.W.9, is said to have lodged Exhibit 5, the First Information Report (FIR), her evidence to the contrary, would establish that she was an illiterate person and therefore, unaware of the contents of Exhibit 5, which thereby remained unproved. Secondly, Exhibit 5, pertains to sexual assault on the “Victim B”, the younger daughter of the Appellant and the Complainant, and not “Victim A”, their elder daughter, who was listed only as Prosecution Witness No.3 and deposed as such. Despite the absence of an FIR against the Appellant alleging offence by him on P.W.3, the Investigating Officer (I.O.) proceeded to file a Charge-Sheet against him for allegedly perpetrating rape on her as well, while the Learned Trial Court recorded the statement of P.W.3 as “Victim A”, sans FIR. That, P.W.3 is already married and leading a family life. Besides, the offence of penetrative sexual assault by the Appellant against “Victim B”, P.W.4, has also not been established, but the Court has relied on the evidence of P.W.3 to establish the case of “Victim B”. The Medical Report of P.W.4 fails to support the Prosecution case. That apart, P.W.4 had infact never claimed intimidation by the Appellant to make out a case under Section 506 of the IPC. Thus, from the anomalies that appear in the Prosecution case, the Appellant deserves an acquittal.
5. Rebutting the stance of the Appellant, Learned Public Prosecutor drew the attention of this Court to Section 29 of the POCSO Act and predicated that the Statute mandates that if the child has alleged the commission of an offence under any of the Sections detailed therein, the Court shall presume that such an offence has taken place. It was further contended that the statement of P.W.4 under Section 164 Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) is corroborated by her evidence in Court, which in turn is corroborated by her medical evidence, Exhibit 7. That, although the Appellant was afforded an opportunity under Section 313 Cr.P.C. to establish his innocence, he failed to take advantage of the said circumstance which establishes his guilt. It was next contended that minor discrepancies pointed out by the Appellant do not vitiate the Prosecution case, strength was drawn from
