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2020 Supreme(Sikk) 1
IN THE HIGH COURT OF SIKKIM : GANGTOK
ARUP KUMAR GOSWAMI, BHASKAR RAJ PRADHAN, JJ.
Depesh Tamang, S/o. Norbu Tamang - Appellant
Versus
State of Sikkim - Respondent
Crl. A. No. 02 of 2019
Decided On : 23-03-2020
Advocate Appeared:
For the Appellant : Mr. Manish Kumar Jain, Legal Aid Counsel.
For the Respondent: Ms. Mukun Dolma Tamang, Assistant Public Prosecutor.
The main legal point established is that the prosecution must prove the guilt of the accused beyond reasonable doubt, and inconsistent or unreliable evidence may not be sufficient to establish a conviction under the POCSO Act.
Headnote:
POCSO - Sexual Assault - Indian Penal Code, 1860, Protection of Children from Sexual Offences Act, 2012 - Section 5(1) of POCSO Act, Section 6 of POCSO Act, Section 363/376 of IPC - Summary: The court acquitted the accused of the charge of penetrative sexual assault under the POCSO Act, as the evidence did not establish the guilt beyond reasonable doubt.
Fact of the Case:
An appeal was made against the conviction of the accused under Section 5(1) of the POCSO Act for sexually assaulting a minor. The victim's father filed an FIR stating that his daughter had eloped with the accused and was later found in Gangtok. The accused was convicted based on the victim's testimony and medical examination.
Finding of the Court:
The court found that the evidence presented did not conclusively prove the guilt of the accused beyond reasonable doubt. The victim's statements were inconsistent, and there was no clear evidence of penetrative sexual assault.
Issues: The main issue was whether the evidence presented was sufficient to establish the guilt of the accused under Section 5(1) of the POCSO Act.
Ratio Decidendi: The court concluded that the prosecution failed to prove the guilt of the accused beyond reasonable doubt, as the victim's statements were inconsistent and did not clearly indicate penetrative sexual assault.
Final Decision: The court set aside the impugned judgment and acquitted the accused, as the prosecution failed to establish the guilt beyond reasonable doubt.
JUDGMENT :
ARUP KUMAR GOSWAMI, J.
1. This appeal is presented against the judgment dated 29.11.2018 and order on sentence dated 30.11.2018, passed by the learned Special Judge (POCSO), West Sikkim at Gyalshing, in Sessions Trial (POCSO) Case No. 01 of 2018, convicting the accused/appellant under Section 5(l) of the Protection of Children from Sexual Offences Act, 2012, for short, "the POCSO Act", punishable under Section 6 of the POCSO Act and sentencing him to suffer Rigorous Imprisonment for a period of 10 years and to pay a fine of Rs.10,000/-, in default of payment of fine, to suffer Simple Imprisonment for two months.
2. An FIR was lodged by the father of "X" (name withheld) before the Station House Officer, Tikjuk Police Station on 31.12.2017 stating that his daughter, aged about 15 years, did not come back after she had gone for tuition and that she had eloped with the accused and they were then traced in Gangtok. It is stated that while investigating, it came to light that the accused had sexually assaulted his daughter several times. On receipt of the FIR, GD Entry No. 138 was registered and subsequently, Gyalshing Police Station Case No. 42 of 2017 under Section 363/376 of the Indian Penal Code, 1860, for short, "the IPC" read with Section 4 of the POCSO Act came to be registered against the accused (Exhibit-17). After completion of investigation, police submitted charge-sheet under Sections 363/376 of the IPC, read with Section 4 of the POCSO Act against the accused whereupon ST (POCSO) Case No. 01 of 2018 was registered in the Court of Special Judge (POCSO).
3. Statement of "X" was recorded under Section 164 of Code of Criminal Procedure, 1973, for short, "Cr. P.C.", before the learned Judicial Magistrate (I/C), West Sikkim at Gyalshing on 29.01.2018. Both "X" and accused were also medically examined.
4. Upon hearing learned counsel for the parties and on perusal of the materials on record, charge was framed against the accused under Section 376(2)(i) of the IPC and under Section 5(l) of the POCSO Act punishable under Section 6 of the POCSO Act. When charges were read over and explained to the accused, he pleaded not guilty and claimed to be tried.
5. The prosecution examined 16 witnesses while defence adduced no evidence. The accused was examined under Section 313 of Cr. P.C. where he took the plea of denial. The proceedings were held in camera.
6. Mr. Manish Kumar Jain, learned Legal Aid Counsel, has submitted that "X", who was examined as PW1 did not implicate the accused either in her Section 161 Cr. P.C. statement or under Section 164 Cr. P.C. statement which was exhibited as Exhibit-1 and only in the Court, while deposing she had stated that she and the accused had „physical relationship? 5/6 times and therefore, such evidence cannot be relied upon. Her father (PW13) and mother (PW14) also did not implicate the accused of any penetrative sexual assault or sexual assault upon their daughter. In any view of the matter, it cannot be inferred that „physical relationship? means aggravated sexual assault within the meaning of Section 3 of the POCSO Act, he submits. He further submits that the evidence of PW1 cannot inspire confidence as it would be wholly unrealistic to accept her statement that she did not remember the month, if not the date of having such "physical relationship", given that she was categorical in stating 05.07.2017 as the date when their affair had developed. Over and above, no material particulars with regard to such „physical relationship? were given. He submits that learned trial Court had relied upon the evidence of PW1, the Doctor (PW9) who had examined "X" and the Investigating Officer (PW16) in convicting the accused. He contends that there was nothing in the evidence of PW9 suggesting that there was penetrative sexual assault on "X" and that statement made by PW9 that "X" had given history of sexual assault with consent 5/6 times with the accused cannot form the basis of conviction when the evid
