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2020 Supreme(Sikk) 49
IN THE HIGH COURT OF SIKKIM : GANGTOK
ARUP KUMAR GOSWAMI, J.
Bir Bahadur Limboo - Appellant
Versus
State of Sikkim - Respondent
Crl. A. No. 11 of 2019
Decided On : 03-11-2020
For the appellant :Mr. Gulshan Lama, Advocate (Legal Aid Counsel)
For the respondent: Mr. S.K. Chettri, Addl. Public Prosecutor, Sikkim
The judgment underscores the importance of corroborative evidence and the principle of benefit of doubt in cases of sexual assault allegations.
Headnote:
POCSO Act - Conviction under Section 3(a)/4 of POCSO Act, 2012 and Section 376(l) IPC - [POCSO Act, 2012, Section 3(a)/4, Section 376(l) IPC] - The court discussed the sentencing under Section 376(1) IPC, the evidence regarding the victim's age, and the contradictions in witness testimonies. The judgment highlighted the importance of corroborative evidence and benefit of doubt in cases of sexual assault.
Fact of the Case:
The victim, a minor girl, was allegedly sexually assaulted by the appellant in a jungle. The appellant was convicted under POCSO Act and IPC. The victim's age and the circumstances of the assault were contested during the trial.
Finding of the Court:
The court found that the prosecution failed to establish the victim's age and the circumstances of the assault beyond reasonable doubt. The evidence presented raised doubts about the veracity of the victim's testimony and the witness accounts.
Issues: The key issues revolved around the victim's age, the veracity of witness testimonies, and the lack of corroborative evidence in the case.
Ratio Decidendi: The court emphasized the need for corroborative evidence in cases of sexual assault and highlighted the principle of benefit of doubt when inconsistencies exist in witness testimonies.
Final Decision: The appellant was acquitted based on the benefit of doubt, and the appeal was allowed by setting aside the impugned judgment.
JUDGMENT :
Arup Kumar Goswami, J.
Heard Mr. Gulshan Lama, learned Legal Aid Counsel appearing for the appellant and Mr. S.K. Chettri, learned Additional Public Prosecutor, Sikkim appearing for the respondent.
2. This appeal is directed against the judgment dated 27.03.2019 passed by the learned Special Judge, Protection of Children from Sexual Offences Act, 2012, (POCSO Act), East District, in Sessions Trial (POCSO) Case No. 7 of 2017 convicting the appellant under Section 3 (a)/4 of POCSO Act, 2012 and Section 376 (l) IPC and the order of sentence dated 28.03.2019 whereby the appellant was sentenced to suffer SI for a period of 7 years and fine of Rs.10,000/- under Section 3 (a) punishable under Section 4 of the POCSO Act, in default of payment of fine, to undergo SI for two months and to suffer RI for a period of 7 years and fine of Rs.10,000/- under Section 376 (l) IPC, in default of payment of fine, to undergo SI for two months.
3. It is to be noted at the very outset that for an offence under Section 376(1) IPC, except for an offence under Section 376(2) IPC, minimum punishment prescribed is rigorous punishment which shall not be less than ten years. However, the learned trial court inexplicably sentenced the appellant with RI for seven years while convicting him under Section 376(1) IPC. It is impermissible in law to award sentence which is less than the statutorily prescribed punishment.
4. The sentences were directed to run concurrently and the period of imprisonment already undergone during the investigation and trial was set-off. By the aforesaid judgment, the victim was also granted compensation of Rs.1.00 lakh under the Sikkim Compensation to the Victims or its Dependants Scheme, 2011.
5. The father of the victim girl, who will be referred to as ‘X’ whenever required, lodged a first information report(F.I.R) on 26.02.2017 before the Officer-in-Charge, Singtam Police Station stating that his daughter, ‘X’, who is aged about 16 years, was sexually assaulted by the accused/appellant in Rangrang jungle at around 11.00 a.m. on that date and the said incident was witnessed by three boys, namely, Bharat Adhikari, Jainarayan Adhikari and Diwas Bhattarai of the same village. Based on the aforesaid F.I.R (Exhibit-6), Singtam Police Station Case No. 10 of 2017 was registered under Section 376 IPC read with Section 4 of the POCSO Act against the accused/appellant and the case was entrusted to one Vijay Basnett for investigation. After investigation was over, finding that a prima facie case has been established under Section 376 IPC read with Section 4 of the POCSO Act, 2012, charge-sheet was filed on 24.05.2017.
6. Learned Special Judge, POCSO Act, 2012, after hearing the parties and on consideration of materials on record framed charges under Section 4 of the POCSO Act, 2012 and Section 376 (1) of IPC. Charges being read over, the accused pleaded not guilty and claimed to be tried.
7. During trial, the prosecution had examined 15 witnesses while the defence adduced no evidence. In his statement under Section 313 Cr. P.C., the accused had not set up any specific plea.
8. Mr. Gulshan Lama, learned Legal Aid Counsel has submitted that the prosecution has failed to establish that the alleged victim was a minor girl. He contends that the Birth Certificate (Exhibit-2) was not proved in accordance with law. In this connection he relies on a Division Bench Judgment of this Court dated 25.10.2017 in Crl. A. No. 08 of 2017 (Lal Bahadur Kami vs. State of Sikkim). He submits that even the father and mother of the victim girl, in their cross-examination, had admitted that they did not know the date, month and year of birth of their daughter. He submits that the three persons whose names were mentioned in the FIR were examined as PW-3, PW-4 and PW-11, respectively, and if their evidence is considered in its entirety, the same would, at the most, point towards a consensual act. The seized underwear and the penile swab of the accused were subjected t
