The main legal point established in the judgment is the importance of protecting the child's identity and privacy throughout the judicial process, as mandated by the POCSO Act, 2012.

JUDGMENT :

BHASKAR RAJ PRADHAN, J.

1. Conviction of the Appellant, who had been given shelter by his employer, the unfortunate father of the hapless child, at his own residence, is under Appeal in the present case having been convicted by the Court of the Special Judge, East District at Gangtok under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act, 2012) for having committed the offence of sexual assault on a girl child, the victim herein, as well as under Section 354 A and 323 of the Indian Penal Code, 1860 (IPC) in the very same house in which he was given shelter.

2. Mr. Sonam Palden, learned Counsel appearing for the convict, now the Appellant, fairly submits, at the very outset, that he does not wish to challenge the conviction considering the nature of evidence available. The Learned Special Judge has found that from the testimony of the child (PW-1) and her father (PW-2) which is supported by the medical evidence (exhibit-8) it is clear that the Appellant had tried to disrobe the child and had physically and sexually assaulted her on the night of 01.07.2015 at her house. The Learned Special Judge has also found that the victim was a child within the meaning of Section 2 (d) of the POCSO Act, 2012. The conviction of the Appellant by the learned Special Judge under the aforesaid provisions of law thus stands confirmed.

3. However, the Appellant is aggrieved by the order on sentence, dated 23.05.2016 imposing the maximum punishment of imprisonment prescribed under each of the offences for which he stands convicted as well as the direction that the sentences should run consecutively.

4. Mr. Karma Thinlay Namgyal, learned Additional Public Prosecutor, would also fairly concede that the sentence imposed under Section 354 A, IPC is not maintainable in view of Section 42 of the POCSO Act. Section 42 of POCSO Act, 2012 provides where an act or omission constitute an offence punishable under POCSO Act, 2012 and also under Section 354 A, IPC, amongst others, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under POCSO Act, 2012 or under the IPC as provides for punishment which is greater in decree. The impugned order dated 23.05.2016 sentences the Appellant to undergo rigorous imprisonment for five years and pay a fine of Rs. 1,000/- under Section 8 of POCSO Act, 2012 and in default of payment of fine to undergo further imprisonment for six months. For the offence under Section 354 A, IPC, the Appellant has been sentenced to undergo rigorous imprisonment for three years and fine of Rs. 1,000/- and in default of the payment of fine he shall undergo further imprisonment for six months. In view of Section 42 of POCSO Act, 2012, the Appellant shall be liable to punishment under Section 8 of POCSO Act, 2012 as it provides for punishment which is greater in decree. Consequently, the sentence for conviction under Section 354 A, IPC is set aside.

5. On hearing the submissions of Mr. Sonam Palden and Mr. Karma Thinlay Namgyal it seems quite clear that judicial determination in the present case is narrowed down to the rationale of the judicial discretion exercised by the learned Special Judge in imposing the maximum sentences for each of the offences charged and convicted, sans Section 354 A, IPC and whether in the given facts, the sentences ought to have been directed to run "concurrently" instead.

Sentences

6. Under Section 8 of the POCSO Act, 2012 whoever commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine. The learned Special Judge has sentenced the Appellant to undergo rigorous imprisonment for five years and pay a fine of Rs. 1,000/- under Section 8 of the POCSO Act, 2012 and in default of the payment of fine to undergo further imprisonment for 6 months.

7. Under Section 3