Point of Law: There are a number of rooms at the said place and apart from Appellants other employees of relevant Company also resided in the same house at the relevant time, although he had not mentioned their details in his investigation.

JUDGMENT :

MEENAKSHI MADAN RAI, J.

1. Both Appellants No. 1 and 2 (for short, A1 and A2) herein were convicted vide impugned Judgment dated 22-10-2020 in Sessions Trial (POCSO) Case No. 05 of 2019, under Section 376 of the Indian Penal Code, 1860 (for short “IPC”) and sentenced to undergo imprisonment for 10 (ten) years, each, with fine of Rs. 500/- (Rupees five hundred) only, each and default clauses of imprisonment, vide impugned Order on Sentence dated 23-10-2020, for sexually assaulting the victim.

2..........

(i) The Prosecution case as it unfolds is that on 13-09-2019, source information was received at the Police Station, that the minor girl was missing from her home from 11-09-2019 which had remained unreported. The Investigating Officer (I.O.) PW-13 visited her parents to request them to lodge a First Information Report (FIR). Meanwhile, the Police took necessary steps, traced and brought the victim, PW-1 to the Police Station. PW-2, an Outreach Worker, District Child Protection Unit (DCPU) was intimated about the situation and PW-1 handed over to her for counselling, during which, PW-1 revealed to PW-2 that she had been with A1 for two days and had been sexually assaulted by him. On such revelation, PW-2 lodged the FIR, Exhibit 4, on 13-09-2019.

(ii) Investigation revealed that on 11-09-2019, at around 09:00 hours, the victim after school returned home, changed her clothes and went to the residence of A1 as they were already in a relationship. She stayed the night at his residence where he sexually assaulted her multiple times. The next morning, on 12-09-2019, A1 locked the victim in his room and left for work. On his return from work, he again sexually assaulted her and on the morning of 13-09-2019 he asked her to return home while he went to work. The victim then came out of the room and was traced by the Police personnel and brought to the Police Station.

(iii) Further, investigation revealed that in July, 2019, the victim had met A2 and had a relationship with him. A2 also lived in the same place/structure with A1 but in a separate room. That, in July, 2019, he too sexually assaulted the victim several times and in August the same year, she came to learn that she was pregnant upon which he gave her medication for termination of the pregnancy. Thereafter, due to problems at his work place he returned to his home town and severed all contact with the victim. While attempting to trace out A2, she allegedly met A1 which led to their relationship. During the course of investigation, the victim was also medically examined by Dr. Dawa Dolma Bhutia, PW-10. On completion of investigation, on finding prima facie materials against both A1 and A2, Charge-Sheet was submitted before the Learned Court of the Chief Judicial Magistrate under Section 376 of the IPC read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Act”). On receipt of the Charge-Sheet the Learned Chief Judicial Magistrate, North Sikkim, took cognizance of the offence and committed the case for trial before the Learned Special Judge (POCSO Act), North Sikkim, at Mangan.

(iv) The Learned Trial Court on receiving the File on committal framed Charge against A1 under Section 5(l) of the POCSO Act punishable under Section 6 of the POCSO Act and, against A2 under Sections 5(l) and 5(j)(ii) punishable under Section 6 of the POCSO Act. Both A1 and A2 took the plea of “not guilty” to the Charges upon which the trial commenced. The Prosecution examined 14 (fourteen) witnesses to establish its case. On closure of Prosecution evidence, both the Appellants were examined individually, under Section 313 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) and their responses recorded. They had no witness to examine.

(v) The Learned Trial Court took up three points for determination: (i) Whether the Prosecutrix was a minor at the time of incident? (ii) Whether A1 committed penetrative sexual assault/rape on the Prosecutrix at the p