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2019 Supreme(Sikk) 39
IN THE HIGH COURT OF SIKKIM, GANGTOK
VIJAI KUMAR BIST, MEENAKSHI MADAN RAI, JJ.
Ashim Stanislaus Rai - Appellant
Versus
The State of Sikkim - Respondent
Crl.A. No.03 of 2018
Decided on : 10-05-2019
Advocate Appeared:
For the Appellant :Mr. K. T. Tamang, Advocate
For the Respondent: Mr. Thinlay Dorjee, Mr. S. K. Chettri, adv
The testimony of a victim of sexual assault should be considered without corroboration unless there are compelling reasons to seek corroboration. Seeking corroboration in such cases would be adding insult to injury and would equate the victim with an accomplice. The court also clarified the requirements for recording statements under Section 164 of the Cr.P.C., stating that time for reflection is not mandatory for statements other than confessions.
Headnote:
Indian Penal Code, 1860 (IPC) - Sections 354B, 376(2)(i), 376(2)(f) Protection of Children from Sexual Offences Act, 2012 (POCSO Act, 2012) - Sections 5(m)/6, 5(f)/6 The court relied on the provisions of the IPC and the POCSO Act to convict the appellant for sexual offences against a minor. The court also referred to the amended Sikkim Compensation to Victims or his Dependents (Amendment) Schemes, 2016 to modify the compensation awarded to the victim.
Fact of the Case:
The appellant was convicted under Section 354B, Section 376(2)(i), Section 376(2)(f) of the Indian Penal Code, 1860 (IPC) and Section 5(m)/6 and 5(f)/6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act, 2012). The victim, a minor, alleged that the appellant, a teacher in her school, sexually assaulted her. The trial court convicted the appellant and sentenced him to rigorous imprisonment and fines. The appellant appealed against the conviction and sentence.
Finding of the Court:
The court carefully evaluated the evidence, including the victim's testimony and corroborative evidence from other witnesses. The court found the victim's testimony to be consistent, honest, and trustworthy, and concluded that it did not require further corroboration. The court also addressed the appellant's arguments regarding the victim's statement under Section 164 of the Cr.P.C. and the delay in lodging the FIR. The court held that the victim's statement was voluntary and that the delay was adequately explained. The court relied on precedents to emphasize that the testimony of a victim of sexual assault should be given due weight and not be equated with that of an accomplice. The court found no reason to interfere with the trial court's findings and upheld the conviction and sentence, with a modification to increase the compensation awarded to the victim.
Ratio Decidendi: The court held that the testimony of a victim of sexual assault should be considered without corroboration unless there are compelling reasons to seek corroboration. The court emphasized that seeking corroboration in such cases would be adding insult to injury and that the victim's testimony should be treated with respect and taken as a whole. The court also clarified the requirements for recording statements under Section 164 of the Cr.P.C., stating that time for reflection is not mandatory for statements other than confessions. The court concluded that the trial court's findings were correct and upheld the conviction and sentence, with a modification to increase the compensation awarded to the victim.
Result: The appeal was dismissed, and the conviction and sentence of the appellant were upheld. The compensation awarded to the victim was increased to Rs.3,00,000/- (Rupees three lakhs) only.
JUDGMENT :
Meenakshi Madan Rai, J.
1. The present Appeal is preferred against the impugned Judgment and Order on Sentence, dated 22-09-2017, of the Learned Special Judge (POCSO), North Sikkim, at Mangan, in Sessions Trial (POCSO) Case No.01 of 2017. The Appellant, vide the Judgment was convicted under Section 354B, Section 376(2)(i), Section 376(2)(f) of the Indian Penal Code, 1860 (hereinafter, IPC) and Section 5(m)/6 and 5(f)/6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, (POCSO Act, 2012).
2. The impugned sentence is as follows;
(i) For the offence under Section 376(2)(f) of the IPC and Section 5(f) of the POCSO Act, 2012, the convict was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.30,000/- (Rupees thirty thousand) only;
(ii) For the offence under Section 5(m) of the POCSO Act, 2012, the convict was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.30,000/- (Rupees thirty thousand) only;
(iii) For the offence under Section 376(2)(i) of the IPC, he was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.30,000/- (Rupees thirty thousand) only; and
(iv) For the offence under Section 354B of the IPC, he was sentenced to undergo simple imprisonment for a period of three years and to pay a fine of Rs.25,000/- (Rupees twenty five thousand) only.
The sentences were ordered to run concurrently and all the sentences of fine bore a default clause of imprisonment. The fine, if recovered, was to be paid as compensation to the victim, in addition to a sum of Rs.1,00,000/- (Rupees one lakh) only, to be paid to her out of the Victims Compensation Fund [sic, The Sikkim Compensation to Victims Dependents (Amendment) Schemes, 2013].
3. The facts are briefly being adverted to for clarity in the matter. On 04-06-2016, a written First Information Report (FIR), Exhibit 3, came to be lodged at the Mangan Police Station, North Sikkim, by P.W.2, the father of the minor victim, P.W.1, stating that, the Appellant a teacher in the victim’s school had sexually assaulted the minor, aged about 9 years, on 03-06-2016, at around 11.30 a.m. or 12.30 p.m. Acting upon the Complaint, the Mangan Police Station on the same date registered Mangan P.S. Case under Sections 376/511 of the IPC read with Sections 4 and 8 of the POCSO Act, 2012, against the Appellant and endorsed it for investigation. Investigation revealed that the victim had been admitted to the residential school in the year 2012 and was in Class II at the relevant time. On 30-05-2016, around 2050 hours, when the victim along with other hostel students was studying in the hall, the Appellant called her and another student of Class II to the adjacent Boys’ dormitory. After admonishing the boy for having teased the victim the Appellant dismissed him to the study hall, but held the victim back in the dimly lit room. He locked the door to the room and told her to lie down in the bunk bed in the room and thereupon sexually assaulted her by way of fondling and licking her vagina, kissing her mouth and cheeks. When he attempted to commit penetrative sexual assault by inserting his genital into hers, the victim resisted by biting one of his hands. He threatened to beat her should she reveal the incident to anyone indicating that he would use his belt for the purpose. In the meanwhile, another student knocked on the door of the room which afforded an opportunity to the victim to escape. She did not report the incident to anyone immediately, i.e., on 30-05-2016, but on 31-05-2016 she informed her teacher, P.W.3 who in turn narrated it to P.W.6, P.W.7, P.W.8, P.W.10, the other teachers of the school. The Principal of the school, P.W.5, was out of station on 31-05-2016 and on her arrival the same evening, she was apprised of the matter by P.W.6 upon which she confirmed of it from the victim. As the Appellant was out of station on 01-06-2016, on his return that
