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IN THE HIGH COURT OF SIKKIM, GANGTOK
MEENAKSHI MADAN RAI, BHASKAR RAJ PRADHAN, JJ.
Sancha Hang Limboo – Appellant
Versus
State of Sikkim – Respondent
Crl. A. No. 11 of 2017
Decided On : 19-02-2018
POCSO Act - Delay in lodging FIR - Authenticity of Birth Certificate - Absence of injuries on victim - Conviction upheld
Fact of the Case:
The appellant was convicted under Section 5(l), 5(m), and 5(n) of the POCSO Act for sexually assaulting a minor. The delay in lodging the FIR, authenticity of the Birth Certificate, absence of injuries on the victim, and the victim's statement under Section 164 Cr.P.C. were contested.
Finding of the Court:
The delay in lodging the FIR was explained, and the Birth Certificate was deemed authentic. The absence of injuries on the victim did not negate the assault. The victim's statement under Section 164 Cr.P.C. was used for corroboration. The conviction and sentence were upheld.
Issues: Delay in lodging FIR, Authenticity of Birth Certificate, Absence of injuries on victim, Correctness of conviction
Ratio Decidendi: The delay in lodging the FIR was explained, and the Birth Certificate was deemed authentic. The absence of injuries on the victim did not negate the assault. The victim's statement under Section 164 Cr.P.C. was used for corroboration. The conviction and sentence were upheld.
Final Decision: The conviction and sentence of the appellant were upheld. However, the court advised the trial courts to be more circumspect while handing out sentences and to abide by the provisions of Section 354 of the Cr.P.C. The court also ordered compensation to the victim and advised liberal exercise of the power to award compensation under Section 357 of the Cr.P.C.
Based on the provided legal document, here are the key points regarding the case Sancha Hang Limboo vs. State of Sikkim:
Case Overview * The appellant was convicted under Sections 5(l), 5(m), and 5(n) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) for sexually assaulting a minor niece. * The appellant was sentenced to 15 years of rigorous imprisonment and a fine of Rs. 20,000. * The High Court of Sikkim upheld the conviction and sentence but directed the trial court to be more circumspect in sentencing and to properly award compensation. (!) (!)
Key Legal Issues and Court Findings
1. Delay in Lodging FIR * The appellant argued that the delay in lodging the First Information Report (FIR) raised doubts about the veracity of the prosecution case. * The Court found the delay adequately explained: the victim did not inform her parents of prior assaults due to fear and family honor concerns; the FIR was lodged only after the victim complained of physical pain (stomach ache and thigh pain) following the specific incident on 15-02-2016. (!) (!) (!)
2. Authenticity of Birth Certificate * The appellant contended that the Trial Court wrongly relied on the Birth Certificate (Exhibit 2) under Section 35 of the Evidence Act without examining the author or testing its contents. * The Court held that while a public document is admissible under Section 35, its probative value must be tested. However, since the Appellant failed to raise an objection regarding the authenticity or mode of proof of the Birth Certificate during the trial, they cannot challenge its contents at the appellate stage. (!) (!) (!) (!) (!) (!)
3. Absence of Injuries on the Victim * The appellant argued that the absence of hymenal rupture or visible injuries negated the assault, citing the medical report showing an intact hymen and normal fourchette. * The Court rejected this argument, citing Modi's Medical Jurisprudence which states that in small children, the hymen is not usually ruptured, and redness/congestion can occur without laceration. * The Court emphasized that the absence of injuries does not disbelieve the victim's testimony, especially in cases involving young children who may not offer physical resistance. (!) (!) (!) (!) (!) (!) (!)
4. Victim's Statement and Corroboration * The appellant challenged the reliance on the victim's statement recorded under Section 164 Cr.P.C. without examining the Magistrate. * The Court held that such statements are for corroboration and the non-examination of the Magistrate did not harm the prosecution case. The victim's statement, supported by other evidence, was sufficient to sustain the conviction. (!) (!)
5. Sentencing and Compensation * Sentencing: The Court noted that the Trial Court imposed a consolidated sentence of 15 years for three distinct offences without distinguishing them. While the single sentence did not vitiate the trial, the Court advised trial courts to pass distinct sentences for each offence under Section 354 Cr.P.C. (!) (!) (!) (!) (!) * Compensation: The Trial Court had incorrectly ordered the fine to be deposited in the "Sikkim Compensation to Victims Scheme" fund. The High Court corrected this, ruling that fines are for prosecution expenses or direct compensation to the victim. * The Court awarded a total compensation of Rs. 3,00,000 under the Sikkim Compensation to Victims Scheme. * Rs. 2,00,000 was ordered to be kept in a fixed deposit for the minor until majority. * Rs. 1,00,000 was designated for rehabilitation/treatment. * The previous fine of Rs. 20,000 was redirected to be given directly to the victim. (!) (!) (!) (!) (!) (!) (!) (!)
Final Decision * The conviction and sentence were upheld. * The appeal was dismissed. (!) (!)
JUDGMENT :
MEENAKSHI MADAN RAI, J.
1. Calling in question the impugned Judgment dated 21-03-2017, of the Court of the Learned Special Judge (POCSO) West Sikkim, at Gyalshing, in Sessions Trial (POCSO) Case No. 04 of 2016 convicting the Appellant and the Order on Sentence, dated 23-03-2017, the Appellant is now before this Court. He stood convicted under Section 5(l), 5(m) and 5(n) of the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Act”) and sentenced to undergo rigorous imprisonment for a period of 15 years and to pay a fine of Rs. 20,000/- (Rupees twenty thousand) only, with a default stipulation, duly setting off the period of imprisonment already undergone by him.
2. The grounds raised herein by the Appellant are that, although the alleged incident was said to have occurred on 15-02-2016, Exhibit 8 the First Information Report (for short FIR), was lodged only on 19-02-2016, with no explanation afforded for the delay, raising doubts about the veracity of the Prosecution case. That, the Learned Trial Court wrongly placed reliance on Section 35 of the Indian Evidence Act, 1872 (in short “Evidence Act”) in admitting Exhibit 2, the Birth Certificate of the victim, without examining the author of the document or testing the contents, therefore, the document as also the age of the victim have remained unproved. That, the statement of the victim under Section 164 Code of Criminal Procedure, 1973 (for short Cr.P.C.) was considered by the learned Trial Court without examining the concerned Magistrate. That, the Learned Court failed to examine that a heinous offence cannot be committed over an extended period of time without there being a hue and cry in the village. That, the Medical Report and the evidence of the Doctor reveal that the victim’s hymen was intact, the fourchette was normal and no discharge or bleeding was seen, thereby belying the Prosecution case since it is unimaginable that penetrative sexual assault would leave the hymen intact. That, redness on the genital can easily be sustained on account of allergies or infection which are normal in a girl child or due to gynaecological problems as opined by the examining Doctor. The victim’s clothes worn during the alleged offence were not produced. Her continued attendance in School coupled with absence of narration of the alleged incident to her friends or parents casts a doubt on the case, duly supported by lack of injuries on her person. The Learned Trial Court, it is contended, failed to consider that the Appellant had cordial relations with the victim’s mother, leading to the false allegation by the victim’s father in a bid to settle scores, as evident from the examination of the Appellant under Section 313 Cr.P.C. Assuming but not admitting the correctness of the Prosecution version, the offence would at best fall under Section 7 of the POCSO Act, and thus, in the alternative deserve a lower sentence.
3. Refuting the arguments of the Appellant, Learned Additional Public Prosecutor while placing reliance on State of Madhya Pradesh vs. Anoop Singh, (2015) 7 SCC 773, urged that the Birth Certificate furnished by the Prosecution is sufficient proof that the child’s date of birth is 03-03-2008, ancillary thereto of proof that the offence was committed on a minor, the incident having occurred on 15-02-2016. Garnering strength from the decision in Radhu vs. State of Madhya Pradesh, (2007) 12 SCC 57, it was next contended that the fact of the incident having occurred was established by the uncontroverted evidence of the minor victim’s cogent and consistent evidence. Learned Additional Public Prosecutor would contend that the child was examined by the Learned Trial Court in terms of Section 33 of the POCSO Act and Section 118 of the Evidence Act to gauge her competence to testify and was satisfied thereof, towards which reliance was placed on Virendra alias Buddhu and Another vs. State of Uttar Pradesh, (2008) 16 SCC 582. That, the evidence of the victim
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