The main legal point established in the judgment is the interpretation and application of the provisions of the POCSO Act, 2012 and IPC in cases of sexual assault and aggravated sexual assault, as well as the applicability of Section 42 of the POCSO Act, 2012 and Section 511 IPC.

JUDGMENT :

BHASKAR RAJ PRADHAN, J.

1. The learned Special Judge (POCSO Act, 2012) South Sikkim at Namchi vide impugned judgment dated 30.09.2016 has found the Appellant guilty and convicted him of the offences under Sections 9 (m)/10 and 7/8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act, 2012); Section 354 of the Indian Penal Code, 1860 (IPC) on two counts and Section 354B/511 of the IPC. Resultantly, the Appellant has been sentenced vide impugned order on sentence dated 30.09.2016 to undergo:-

(i) simple imprisonment for a period of five years and to pay a fine of Rs.10,000/- for the offence under Section 9(m)/10 of the POCSO Act, 2012 and in default to pay the said fine to undergo simple imprisonment for a period of six months;

(ii) simple imprisonment of a period of five years and to pay a fine of Rs.10,000/- (Rupees ten thousand) for the offence under Section 354 of the IPC (first count) having default to pay the said fine to undergo simple imprisonment for a further period of six months;

(iii) Simple imprisonment for a period of five years and to pay a fine of Rs.10,000/- for the offence under Sections 7/8 of the POCSO Act, 2012 and in default to pay the fine to undergo simple imprisonment for a further period of six months;

(iv) Simple imprisonment for a period of five years and to pay a fine of Rs.10,000/- for the offence under Section 354 IPC (second count) and in default to pay the fine to undergo simple imprisonment for a further period of six months; and

(v) Simple imprisonment for a period of 3 ½ years and to pay a fine of Rs.10,000/- for the offence under Section 354B/511 IPC and in default to pay the fine to undergo simple imprisonment for a further period of six months. The aforesaid period of imprisonment was directed to run concurrently and the period of imprisonment already undergone by the Appellant was to be set off against the above mentioned period.

2. Mr. N. B. Khatiwada, learned Senior Advocate and Legal Aid Counsel for the State Respondent Appellant (The words “State Respondent” is replaced with the word “Appellant” vide order of this Court dated 29.10.2018 in Criminal Appeal No. 34 of 2016.) would raise a solitary ground of appeal. He would submit that the learned Special Judge had erred in law in not believing the solitary defence witness who had categorically stated:

“....... On the night of 27.08.2015 the accused and I were sleeping in the same room i.e., one of the rooms under occupation of the victims’ family. We shared one bed. The accused was drunk that night and so far as I can say he did not leave the bed that night. On the following morning I left while the accused stayed back. I did not hear any noise that night. I was not told about any untoward incident by the minor victims or their parents on the following morning. I was not examined by the police in connection with this case. I know nothing about the present case against the accused.”

3. The said defence witness in cross-examination had stated:

“....... It is true that I did not wake up that night and as such I cannot say as to what all occurred that night.”

4. The learned Special Judge has disbelieved the defence version on the ground that the plea of the defence witness being present on the relevant night at the place of occurrence was taken for the first time during the Appellant’s statement recorded under Section 313 Cr.P.C. and that in cross examination the said defence witness had categorically admitted that he did not wake up that night and as such he could not say as to what all occurred that night. The reasoning of the learned Special Judge cannot be faulted.

5. The victims of the crime allegedly committed by the Appellant have both deposed before the Court. Their evidences have not been demolished. It inspires confidence.

6. Minor victim 1, 13 years of age has categorically stated:

“..... When I woke up I found that the accused was on our bed and his hand was on my chest, under my clothes. In the meantime, our paren