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2020 Supreme(Sikk) 9
IN THE HIGH COURT OF SIKKIM : GANGTOK
ARUP KUMAR GOSWAMI, MEENAKSHI MADAN RAI, JJ.
Bhakta Bahadur Subba - Appellant
Versus
State of Sikkim - Respondent
Crl.A. No.19 of 2019
Decided On : 14-09-2020
For the Appellant : Mr. D. K. Siwakoti, Adv.
For the Respondent: Mr. S. K. Chettri, Additional Public Prosecutor
The victim's consistent and trustworthy testimony, supported by other prosecution witnesses, and the presumption under Section 29 of the POCSO Act, were crucial in establishing the appellant's guilt.
Headnote:
POCSO - Conviction under IPC and POCSO Act, 2012 - Section 354, Section 376(2)(n), Section 376(3), Section 506, Section 5(j)(ii), Section 5(l), Section 7 - Section 29 and Section 30 of POCSO Act - The court upheld the conviction of the appellant under various sections of IPC and POCSO Act, 2012. The court relied on the victim's consistent and trustworthy testimony, corroborated by other prosecution witnesses, and the presumption under Section 29 of the POCSO Act. The appellant failed to disprove the mental state with respect to the charged offenses as required by Section 30 of the POCSO Act.
Fact of the Case:
The victim, a minor, was sexually assaulted by the appellant, leading to her pregnancy and delivery of a child. The appellant was convicted under various sections of IPC and POCSO Act, 2012 based on the victim's testimony and corroborating evidence.
Finding of the Court:
The court found the appellant guilty of the charged offenses based on the consistent and trustworthy testimony of the victim, supported by other prosecution witnesses. The court upheld the conviction and dismissed the appeal.
Issues: The main issue was whether the appellant was wrongly convicted under the charged offenses.
Ratio Decidendi: The court relied on the victim's consistent and trustworthy testimony, the presumption under Section 29 of the POCSO Act, and the appellant's failure to disprove the mental state with respect to the charged offenses as required by Section 30 of the POCSO Act.
Final Decision: The appeal was dismissed, and the court upheld the conviction and penalty imposed by the trial court.
JUDGMENT :
Meenakshi Madan Rai, J.
1. By preferring this appeal the Judgment and Order on Sentence, both dated 26-07-2019, in Sessions Trial (POCSO) Case No.10 of 2018 are assailed. The learned Trial Court subjected the appellant to trial under four counts of the Indian Penal Code, 1860 (hereinafter, “IPC”) and three counts of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, “POCSO Act, 2012”). On completion of trial, the appellant was convicted on all seven counts as follows;
(i) For the offence under Section 354 of the IPC, the convict was sentenced to undergo simple imprisonment for a period of two years and to pay a fine of Rs.1,000/- (Rupees one thousand) only;
(ii) For the offence under Section 376(2)(n) of the IPC, he was sentenced to undergo rigorous imprisonment for a period of twenty years and to pay a fine of Rs.5,000/- (Rupees five thousand) only;
(iii) For the offence under Section 376(3) of the IPC, he was sentenced to undergo rigorous imprisonment for a period of twenty years and to pay a fine of Rs.10,000/- (Rupees ten thousand) only;
(iv) For the offence under Section 506 of the IPC, he was sentenced to undergo simple imprisonment for a period of one year and six months and to pay a fine of Rs.1,000/- (Rupees one thousand) only;
(v) For the offence under Section 5(j)(ii) of the POCSO Act, 2012, the convict was sentenced under Section 6 of the POCSO Act, 2012, to undergo rigorous imprisonment for a period of twenty years and to pay a fine of Rs.5,000/- (Rupees five thousand) only;
(vi) For the offence under Section 5(l) of the POCSO Act, 2012, the convict was sentenced under Section 6 of the POCSO Act, 2012, to undergo rigorous imprisonment for a period of twenty years and to pay a fine of Rs.5,000/- (Rupees five thousand) only; and
(vii) For the offence under Section 7 of the POCSO Act, 2012, the convict was sentenced under Section 8 of the POCSO Act, 2012, the convict was sentenced to undergo simple imprisonment for a period of two years and to pay a fine of Rs.1,000/- (Rupees one thousand) only.
All the sentences of fine carried a default clause of imprisonment. Aggrieved thereof, the appellant is before this Court.
2(i). The facts of the prosecution case, briefly narrated, are that on 14-03-2018, at around 0730 hours, written information was received at the concerned police station from P.W.2, a Para Legal Volunteer (PLV) of the area where the offence had occurred, stating that the victim P.W.1, aged about 16 years, was sexually assaulted by the appellant for the last 5/6 months. That, on 13-03-2018, the concerned Ward Panchayat, P.W.3, brought it to the notice of the informant, who in turn, enquired about it from the victim P.W.1 and after obtaining information from the victim, immediately lodged the First Information Report (FIR), Exhibit 3. The FIR was registered as a criminal case on 14-03-2018, under Section 376 of the IPC read with Section 6 of the POCSO Act, 2012, against the appellant. The matter was duly investigated into by P.W.13, the Investigating Officer (I.O.). Investigation, inter alia, revealed that repeated sexual assault perpetrated by the appellant, aged about 52 years, on the minor victim, aged about 15 years 8 months, led to her pregnancy.
(ii) Charge-Sheet was filed against the appellant under Section 376 of the IPC read with Section 5(j)(ii) of the POCSO Act, 2012. The learned Trial Court framed Charges against the appellant under Section 376(2)(i), Section 376(2)(n), Section 354, Section 506 of the IPC, Section 5(j)(ii)/6, Section 5(l)/6, and Section 7/8 of the POCSO Act, 2012. On a plea of “not guilty” by the appellant, the Prosecution embarked on the exercise of examining thirteen witnesses to prove its case beyond all reasonable doubt. On closure of Prosecution evidence the appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C”) wherein he reiterated his innocence. However, he had no witness to examine. Pursuant thereto, t
