The main legal point established in the judgment is the reliance on victim testimony and corroborative evidence, such as the DNA report and prompt lodging of the F.I.R by co-villagers, to establish guilt in cases of sexual offenses.

JUDGMENT :

Arup Kumar Goswami, J.

This appeal is directed against the judgment and order dated 25.09.2017 passed by the learned Sessions Judge (POCSO Act), South Sikkim at Namchi in Sessions Trial (POCSO) Case No. 10 of 2015 convicting the appellant under Section 376(2)(f)/372(2)(i)/376(2)(n) of the Indian Penal Code, 1860 (for short, the IPC) and sentencing him to undergo RI of 15 years for the offence committed under Section 376(2)(f) IPC, to suffer RI for 15 years for the offence committed under Section 376(2)(i) and to suffer RI for 15 years for the offence committed under Section 376(2)(n), providing that the sentences imposed will run concurrently. The learned Sessions Judge by the aforesaid impugned judgment acquitted the accused of the offence under Section 5(l)/ 5(j)(ii)/5(n) punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012(for short, the POCSO Act).

2. The learned trial Court, relying on Exhibit-3, the birth certificate of the victim, had held that the date of birth of the victim girl is 02.07.1994. The reasoning assigned for acquitting the appellant of the offence under POCSO Act was that the victim girl had attained the age of 18 years in the month of July 2012 whereas the POCSO Act came into force on 14.11.2012.It was also observed that criminal law cannot be applied with retrospective effect.

3. In this case, the father is convicted for committing rape of his own daughter, resulting in birth of a child.

4. The brother of the appellant, Smt. P. Gurung (Ward Panchayat), Ram Kumar Kothwal (District Panchayat) , Navraj Gurung and Ganga Maya Gurung lodged a first information report(F.I.R) before the In-charge, Lingmoo Out Post alleging that the appellant had raped his daughter and had hidden about the fact of birth of a baby. Based on the aforesaid F.I.R (Exhibit-6), Ravangla P.S. Case No. 8 of 2015 under Section 376 IPC was registered against the accused and investigation had commenced. On conclusion of investigation, finding a prima facie case, the Investigating Officer (I.O) filed charge-sheet under Section 376 (2) (f) (k) (h) IPC read with Section 4 of the POCSO Act against the accused.

5. Initially charges under Section 5 (l)/5 (n) of POCSO Act and under Section 376 (2) IPC were framed on 22.08.2015 and charges being explained, the accused pleaded not guilty and claimed trial. However, subsequently, learned Sessions Judge (POCSO Act), by an order dated 10.06.2016 framed charges under Section 5 (l)/5(j)(ii)/5(n) of the POCSO Act/376(2)(f)/376(2)(i) and 376(2)(n) IPC. Charges being explained, the accused pleaded not guilty and claimed trial. By then some witnesses were already examined. The learned trial Court, by the order dated 10.06.2016, decided to hold a de novo trial.

6. During trial, while the prosecution examined 17 witnesses, defence adduced no evidence. The statement of the accused was recorded under Section 313 Cr. P.C. where, apart from taking a plea of denial, he stated that the Ward Panchayat was not in good terms with him and as such she had made a false case against him .He had also stated that his daughter had told that the baby was that of one Prem Lal Mangar.

7. Mr. U.P. Sharma, learned Legal Aid Counsel submits that the learned trial Court had committed manifest error of law in convicting the appellant as the prosecution miserably failed to prove the guilt of the accused beyond reasonable doubt. Drawing attention of the Court to the evidence of PW-4, PW- 7, PW-11 and PW-12, it is submitted by him that the victim had initially told them that she had been impregnated by one Prem Lal Manger and yet the IO, in spite of being aware of the aforesaid fact, did not cause any investigation in that regard and therefore, the entire prosecution case is liable to be thrown overboard. The learned counsel submits that evidence of PW-1 is not trustworthy and therefore, conviction of the appellant cannot be based on the testimony of PW-1. He has further submitted that PW-11 and PW-