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IN THE HIGH COURT OF SIKKIM AT GANGTOK
Meenakshi Madan Rai, Bhaskar Raj Pradhan, JJ.
Kendrap Lepcha - Appellants
Vs.
State of Sikkim - Respondent
Crl. A. No. 23 of 2018
Decided On : 01-06-2020
rape - sexual assault - Indian Penal Code, 1860, section 376(2)(f)(i), 376(2)(n), Protection of Children from Sexual Offences Act, 2012, section 9(f), 9(1), 9(m) - The court upheld the appellant's conviction under section 376(2)(f)(i) and (n) of the Indian Penal Code, and the sentences under section 9(f), 9(1), and 9(m) of the POCSO Act. However, the appellant's sentences under section 5 of the POCSO Act were set aside based on the interpretation of the punishment prescribed under section 376(2) of the IPC being greater than that provided under the POCSO Act.
Fact of the Case:
The appellant, a teacher, was convicted for rape, sexual assault, and assault on a minor victim. The case involved allegations of the appellant sexually assaulting multiple schoolgirls, including the minor victim, leading to the lodging of an FIR and subsequent trial.
Finding of the Court:
The court found the appellant guilty of the alleged offences based on the consistent deposition of the minor victim and medical evidence, upholding the conviction and sentences under relevant sections of the Indian Penal Code and the POCSO Act. However, the court set aside the appellant's sentences under section 5 of the POCSO Act.
Issues: The key issues revolved around the reliability of the minor victim's testimony, the consistency of her statements, and the interpretation of the punishment prescribed under the IPC and the POCSO Act.
Ratio Decidendi: The court relied on the consistent deposition of the minor victim, medical evidence, and the interpretation of relevant legal provisions to establish the appellant's guilt and determine the appropriate sentences.
Final Decision: The appeal was partly allowed, modifying the impugned order on sentence and setting aside the appellant's sentences under section 5 of the POCSO Act. The court directed the transmission of the judgment to the Trial Court for further action.
JUDGMENT :
Bhaskar Raj Pradhan, J.
1. The appellant, a teacher in a Primary School, was tried, convicted and sentenced to imprisonment for the offences of rape, aggravated penetrative sexual assault, aggravated sexual assault and for assault on the minor victim (PW-5), a schoolgirl, with intent to outrage her modesty. Both the judgment of conviction and the order on sentence dated 31.05.2018, have been challenged in the present appeal.
2. The First Information Report (for short 'the FIR') (Exhibit-1) was lodged on 11.12.2016, by a member of the village Panchayat (PW-7), PW-6 [mother of the minor victim (PW-5)], PW-1, PW-9, PW-10 and PW-14 (collectively referred to as the first informants) mothers to five schoolgirls aged between 7 to 11 years. The FIR (Exhibit-1) alleged that PW-14, mother of "O", was bathing her when she noticed redness on her breasts a few days ago. She therefore asked "O" about it but she refused to open up. After a while, "O" narrated the incident and informed PW-14 that she and the other schoolgirls were being sexually assaulted by their teacher, the present appellant. The FIR (Exhibit-1) further alleged that the schoolgirls informed the first informants that the appellant used to touch their breasts in the classroom and outdoors. According to the first informants, the schoolgirls further alleged that the appellant used to put his finger in their private parts and lick it in front of them, make sexual gestures to them and threaten them that if they told their parents or anyone about it, he would cause serious trouble to them.
3. On the basis of the information, FIR No. 25(12)16 dated 11.12.2016 was registered and the case endorsed to Police Inspector Karma Euden Kaleon (PW-16) for investigation.
4. During investigation, the minor victim (PW-5) was examined by Dr. Rozeela Bhutia (PW-13) on 11.12.2016. On her examination, she found that her breast nipples were swollen. She also noticed that her hymen was not intact and it admitted one finger coupled with tenderness and foul smell. Dr. Rozeela Bhutia (PW-13) opined in her medical report (Exhibit-13) that there was clinical evidence of sexual assault.
5. The learned Judicial Magistrate (PW-12) recorded the statement (Exhibit-6) under section 164 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.') of the minor victim (PW-5) on 26.12.2016.
6. A consolidated charge-sheet was filed on 28.04.2017 against the appellant for the alleged offence allegedly committed against five schoolgirls of the same school in which he was a teacher. At the stage of framing of charges, the trial of the alleged offences against each of the five schoolgirls was split and each tried separately.
7. On 10.10.2017, the learned Special Judge (POCSO), North Sikkim at Mangan (hereinafter, 'the learned Special Judge'), in Sessions Trial (POCSO) Case No. 14 of 2017 - State of Sikkim vs. Kendrap Lepcha, framed eleven charges against the appellant for the commission of the alleged offences against the minor victim (PW-5). The appellant pleaded not guilty and claimed trial. Seventeen witnesses including the Investigating Officer (PW-16) were examined.
8. On 25.05.2018, the appellant was examined under section 313 of the Cr.P.C. The appellant claimed that he had been falsely implicated because he was a strict teacher and the children's parents used to dislike him. When the appellant declined to bring any witness in his defence, the matter was heard by the learned Special Judge. On 31.05.2018, he passed the judgment of conviction and the order on sentence.
9. Mr. Sudesh Joshi, learned counsel for the appellant, at the outset submitted that he does not seek to challenge the minority of the minor victim (PW-5). He, however, vehemently insisted that the evidence of the minor victim (PW-5) is grossly inconsistent and therefore, unreliable. It was submitted that considering the age of the minor victim (PW-5) and the conflicting statements made by the minor victim (PW-5), it would be dangerous to upho
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