The main legal point established is the importance of giving primacy to the ocular evidence of the victim and her siblings in cases of sexual assault, disregarding delays in lodging FIRs and emphasizing sensitivity towards girl child victims in medical examinations.

JUDGMENT :

BHASKAR RAJ PRADHAN, J.

1. This is my time to sing, dance and play. This is my time to be happy. This is my time. Give it back to me.

2. The conviction of the Appellant by the learned Special Judge for commission of aggravated sexual assault under Section 9(l), 9(m) and 9(n) punishable under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act, 2012) narrate an unfortunate, distressing and alarming tale of a broken home in rural Sikkim.

3. The minor victim (P.W.1) is a hapless child of 7 years. The Appellant is her uncle, a 49 year old male who held the position of trust. The mother of the victim had left the father (P.W.2) and their three minor children several years ago. Unable to look after the three minor children on his own he brought the Appellant, his brother-in-law, to their house to look after them. The Appellant stayed with them for a few months. He used to do all the household work including cooking and bathing the children. During this period the elder minor daughter (P.W.3) was sexually assaulted by two juvenile relatives. A case was instituted under the POCSO Act, 2012 in the year 2016 against them. During the proceedings the Learned Judge told the father (P.W.2) that the elder minor daughter (P.W.3) had disclosed about the sexual assault on the minor victim by the Appellant. Pursuant thereto a written complaint (exhibit-5) dated 08.10.2016 was lodged by the father at the Temi Police Station. The formal First Information Report (FIR) (exhibit-6) was lodged on the same day. The investigation resulted in the charge-sheet against the Appellant for commission of sexual assaults on the minor victim.

4. Three charges were framed under Section 9(l), 9(m) and 9(n) of the POCSO Act, 2012, Section 354 of the Indian Penal Code, 1860 (IPC, 1860) and Section 354B of the IPC, 1860 by the learned Special Judge on 11.04.2017. 11 prosecution witnesses were examined. The Appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C. 1973) on 14.06.2018. He desired to lead defence witnesses. Two defence witnesses were also examined by the learned Special Judge.

5. Ms. Navtara Sarda the learned Legal Aid Counsel for the Appellant submits that the impugned judgment and order on sentence ought to be set aside on the grounds hereinafter considered. Mr. Thinlay Dorjee Bhutia, learned Additional Public Prosecutor for the State-Respondent on the other hand submits that the prosecution has been able to prove all the ingredients of the alleged aggravated sexual offences with the evidence of the minor victim and her two siblings. It is submitted that the identification of the Appellant as well the minority of minor victim has also been adequately proved by the prosecution witnesses.

6. The minority and the age of the 7 year old victim are not in question. It is not contested at this stage. The father has deposed that the date of birth of the minor victim was 16.08.2009 and identified the copy of the birth certificate which had been seized. The Registrar, Birth & Deaths STNM Hospital, Gangtok (P.W.10) deposed that he had verified the copy of said birth certificate from the Birth & Death register maintained in STNM Hospital and found the contents to be correct. He thereafter endorsed on the body of the application dated 03.11.2016 made by the Investigating Officer to the Chief Registrar, Birth & Death, STNM Hospital (exhibit-18) that the copy was genuine.

7. The identification of the Appellant and his presence in the rented house of the family of the minor victim has been cogently established by the prosecution. The 7 year old minor victim has vividly described the sexual assault committed by the Appellant, her uncle. She identified him both during the Test Identification Parade as well as in Court. She did not remember the date, month and the year of the incident but she was certain that it transpired when she was residing at her residence and studying in UKG. She testified that one