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IN THE HIGH COURT OF SIKKIM, GANGTOK
BHASKAR RAJ PRADHAN, J.
Raju Prasad S/o Shri Sambu Ram – Appellant
Versus
State of Sikkim – Respondent
Criminal Appeal No. 17 of 2018
Decided On : 04-03-2019
POCSO Act - Conviction under Section 9(m) - [POCSO Act, 2012, Section 9(m)] - The court examined the provisions of Section 7 of the POCSO Act, 2012 which defines 'sexual assault' and concluded that the act of forcibly kissing and hugging a minor victim below 12 years of age amounted to 'aggravated sexual assault' as defined under Section 9(m) of the POCSO Act, 2012. The conviction was based on direct evidence of the minor victim and other eyewitnesses, and the court found the commission of the crime by the Appellant to be proved. The court also noted that although the Appellant was charged under Section 34 of the IPC, 1860, he was not convicted under that section as the court did not find active involvement of another individual in the incident. However, the presence of the other individual was established. The court upheld the conviction under Section 9(m) of the POCSO Act, 2012.
Fact of the Case:
The Appellant appealed against his conviction under Section 9(m) of the POCSO Act, 2012 and sentence under Section 10 thereof. The charges stemmed from an incident where the Appellant, along with another individual, was alleged to have made physical contact with a minor victim below 12 years of age with sexual intent.
Finding of the Court:
The court found the Appellant guilty of committing aggravated sexual assault on the minor victim and upheld the conviction under Section 9(m) of the POCSO Act, 2012. The court also noted that the Appellant was not convicted under Section 34 of the IPC, 1860 due to lack of active involvement of another individual in the incident.
Issues: The issues raised in the appeal included discrepancies in the victim's statements, failure to examine certain witnesses, and the specific charge under which the Appellant was convicted.
Ratio Decidendi: The court's decision was based on the examination of evidence, including direct testimony from the minor victim and eyewitnesses, and the interpretation of the provisions of the POCSO Act, 2012 defining 'sexual assault' and 'aggravated sexual assault'. The court also considered the lack of active involvement of another individual in the incident in determining the Appellant's conviction.
Final Decision: The appeal was dismissed, and the Appellant's conviction under Section 9(m) of the POCSO Act, 2012 was upheld. The Appellant was ordered to serve the imposed sentence.
JUDGMENT :
BHASKAR RAJ PRADHAN, J.
1. Heard. This is an appeal filed by the Appellant against his conviction under Section 9(m) of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act, 2012) and sentence under Section 10 thereof vide judgment dated 21.05.2018 and order on sentence dated 22.05.2017 (sic) signed on 22.05.2018. The Appellant has been sentenced to simple imprisonment for a period of 5 years and to pay a fine of Rs. 1000/-. In default of payment of fine, the Appellant is required to undergo further simple imprisonment of one month. The period of imprisonment already undergone by the Appellant during investigation and trial is required to be set off against the sentence imposed.
2. Mr. U.P. Sharma, learned Legal Aid Counsel for the Appellant would urge three grounds in the present appeal. Firstly, that the learned Special Judge erred in passing the impugned judgment on the basis of a statement of the minor victim (PW-1) recorded under Section 164 of the Code of Criminal Procedure, 1973 (Cr.P.C.) (exhibit-6) and the preliminary examination (Exhibit-7) of the minor victim as the contents of two are contradictory to her deposition in Court. Secondly, that the learned Special Judge failed to take into consideration the fact that prosecution withheld vital and independent witnesses like the driver, one Simon Rai of the Bolero vehicle from which the friends of the victim had seen the Appellant hugging the victim and another driver-Sudhir Tamang who helped the friends of minor victim rescue her from the Appellant and the juvenile in conflict with law. Finally, Mr. U.P. Sharma would also urge that the learned Special Judge had erred in convicting the Appellant under Section 9(m) of the POCSO Act, 2012 alone when he had been charged under Section 9(m) of the POCSO Act read with Section 34 of the Indian Penal Code, 1860 (IPC, 1860).
3. This Court shall examine each of the three grounds raised by the learned Counsel for the Appellant. Before that however, certain uncontroverted facts must be stated.
4. The First Information Report (FIR) was lodged on 07.03.2017 by the uncle (PW-2) of minor victim after being informed by her school friends about the alleged incident. The investigation pursuant to the (FIR) resulted in a charge-sheet being filed on 05.04.2017. On examination of the charge-sheet and hearing the learned Counsels four charges were framed by the learned Special Judge on 16.08.2017 under Section 9(m) of the POCSO Act, 2012 punishable under Section 10 thereof read with Section 34 of the IPC, 1860; under Section 354/34 of the IPC, 1860; under Section 363/34 of the IPC, 1860 and Section 342/34 of the IPC, 1860.
5. The indictment against the Appellant was that on 07.03.2017 at around 1630 hours the Appellant along with another, in furtherance of their common intention with sexual intent made physical contact with the minor victim, aged about 11 years and thereby committed the offence under Section 9(m) of the POCSO Act, 2012 punishable under Section 10 thereof.
6. In order to prove the charges the prosecution examined 24 witnesses. The defence did not lead any evidence. An opportunity to explain the circumstances appearing in the evidence against the Appellant was granted to the Appellant by the learned Special Judge on 07.05.2018. Ultimately, the learned Special Judge thought it fit to convict the Appellant under Section 9(m) of the POCSO Act, 2012 only. The prosecution has not assailed the acquittal of the Appellant on the other charges framed by the learned Special Judge. The prosecution having found the other person in the vehicle in which the assault was said to have taken place to be a juvenile filed the present charge sheet only against the present Appellant.
7. There is no argument regarding the minority of the victim. The learned Special Judge had satisfied herself about the same. Based on the birth certificate of the victim (Exhibit-3), the evidence of Dr. Tsering Laden (PW-16) the Chief Medical Off
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