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2018 Supreme(Sikk) 83
IN THE HIGH COURT OF SIKKIM, GANGTOK
MEENAKSHI MADAN RAI, BHASKAR RAJ PRADHAN, JJ.
Ram Krishna Jana, Son of Jadu Pati Jana - Appellant
Versus
State of Sikkim - Respondent
Crl. A. No. 38 of 2017
Decided on : 09-08-2018
Advocate Appeared:
For the Appellant :Ms Navtara Sarda, Advocate
For the Respondent: Mr. Thinlay Dorjee, Additional Public Prosecutor with Mr. S.K Chettri and Mrs. Pollin Rai, Adv
The best evidence of a child's age, consistent identification of the assailant, and reliable medical evidence are crucial in establishing guilt in cases of sexual assault against children.
Headnote:
POCSO - Sexual Assault - Protection of Children from Sexual Offences Act, 2012, Section 5(m) - Summary of Acts and Sections: The court discussed the age determination of the victim, identification of the assailant, medical evidence, and blood group analysis. Key legal provisions such as the best evidence of the child's age, identification of the accused, and the reliability of medical evidence influenced the court's decision.
Fact of the Case:
The appellant was convicted under Section 5(m) of the POCSO Act for sexually assaulting a 5-year-old victim. The appellant challenged the failure to cite a witness and the age of the victim, while the state emphasized the victim's evidence and medical findings.
Finding of the Court:
The court found that the victim's age was established through parental testimony, and the identification of the appellant as the assailant was supported by consistent evidence. The medical evidence and blood group analysis further corroborated the prosecution's case.
Issues: The issues revolved around the age of the victim, identification of the assailant, and the reliability of medical evidence.
Ratio Decidendi: The court relied on the best evidence of the child's age provided by the parents, the consistent identification of the appellant by the victim and witnesses, and the reliability of medical evidence to establish the guilt of the appellant.
Final Decision: The appeal was dismissed, and the judgment and sentence were upheld.
JUDGMENT :
Meenakshi Madan Rai, J.
1. The Appellant is before this Court assailing the Judgment dated 30.10.2018, of the Court of learned Special Judge, Protection of Children from Sexual Offences (POCSO) Act, 2012, East Sikkim at Gangtok, in S.T. (POCSO) Case No. 19 of 2016. The Appellant having been convicted under Section 5(m) of the Protection of Children from Sexual Offences Act, 2012 (for short “the POCSO Act”) was sentenced to undergo rigorous imprisonment for a period of 10(ten) years and to pay a fine of Rs.5000/- (Rupees five thousand) only, with a default clause of imprisonment vide the impugned Order on Sentence dated 31.10.2017.
2. The grounds raised before this Court are that the learned Trial Court failed to appreciate that “Sanu” uncle whose phone the Victim was playing with was in the same room where the offence was committed, despite which the Prosecution failed to cite him as a witness. Apparently, “Sanu” uncle did not wake up during the commission of the alleged incident or hear the cry of the prosecutrix, thereby lending suspicion to the veracity of the offence. Challenging the age of the Victim, it was contended that the birth certificate of the Victim was not furnished to establish that she was a child as defined under Section 2 of the POCSO Act. The Prosecution also failed to seize the School Admission register or other relevant records for this purpose. That apart, no certificate was produced from any corporation or municipal authority or for that matter no ossification test was conducted on the child. That, the medical report of the Victim reveals absence of spermatozoa in the vaginal wash sample finding corroboration in the evidence of PW-16, the Junior Scientific Officer of the Regional Forensic Science Laboratory, Saramsa, East Sikkim. In such circumstances, it is clear that the Prosecution has failed to prove its case beyond a reasonable doubt and hence, the Appellant ought to be acquitted of all charges.
3. The contra arguments raised by learned Counsel for the State-Respondent was that the evidence of the minor Victim suffices to establish the Prosecution case as is settled law. That, in the first instance, the Appellant has been identified as the assailant by the Victim who she referred to as “lambu bhaiya”. The Victim unequivocally stated that the Appellant had on the relevant day inserted his finger into her vagina in the room of one “Sanu” uncle following which she screamed and cried. PW-2, the Victim’s father, has stated that he and PW-3, the Victim’s mother, were informed by PW-4 his brother-in-law that the Victim was bleeding from her private part. Later, the Victim confided to her mother about the incident which was duly corroborated by the evidence of PW-3, thereby clearly establishing that the Appellant had committed the sexual assault which led to the injury on the Victim. Laying emphasis on the evidence of PW-10, the Gynaecologist and Obstetrician who examined the Victim, it was contended that the injury on the Victim and the clinical findings of PW-10, reveal that the Victim was sexually assaulted by the Appellant. That, the evidence of PW-1 finds corroboration also in the evidence of PW-13, whom the Victim had confided to about the incident. PW-14, the Victim’s elder brother also a minor, deposed that the Victim had told him that “lambu bhaiya” had inserted his finger into her vagina. The evidence of PW-16 confirmed that on examination of the Exhibits forwarded to him, inter alia, being MO-IV and MO-I, the half pants of the Appellant and the underwear of the Victim, respectively, human blood of the blood group “AB” was detected, which was found to be the blood group of the Victim. Hence, the Prosecution has by cogent evidence established that the Appellant was the perpetrator of the offence, therefore, no error obtains in the impugned Judgment and Order on Sentence.
4. The rival submissions made at the Bar were heard at length and anxiously considered. The evidence and documents on reco
