The court reaffirmed that consent from a minor is inadmissible in law concerning sexual offenses and emphasized stringent proof requirements for age verification in such cases.

JUDGMENT

Meenakshi Madan Rai, J. - (i). The Appellant, in ST (POCSO) case No. 10 of 2015, State of Sikkim v. Binod Tamang was charged with the offence under Section 3 (a) of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act'), along with Section 3 76(2)(i) and Section 3 63 of the INDIAN PENAL CODE , 1860 (for short 'IPC').

(ii) Vide the impugned Judgment dated 30-10-2017, he was convicted of the offences under Section 3 (a) of the POCSO Act and Section 3 76(2)(i) of the IPC but acquitted of the offence under Section 3 63 of the IPC. The impugned Order on sentence dated 30-10-2017, directed the Appellant to undergo simple imprisonment for a period of seven years and to pay a fine of Rs.1,000/- (Rupees one thousand) only, under Section 3 (a) of the POCSO Act punishable under Section 4 of the same Act. Under Section 3 76(2)(i), he was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.2,000/- (Rupees two thousand) only. The sentences of imprisonment were ordered to run concurrently. The sentences of fine bore default clauses of imprisonment. Aggrieved thereof, the Appellant is before this Court assailing the Judgment and Order on sentence.

2(i). Learned Senior Counsel for the Appellant while placing reliance on the ratio in T.T. Antony v. State of Kerala and Others AIR 2001 SC 2637 and Mangala Mishra @ Dawa Tamang @ Jack v. State of Sikkim , SLR (2018) SIKKIM 1373 contended that there can be no second First Information Report (for short 'FIR') in respect of the same cognizable offence, same incident or occurrence. That, in the instant case there are two FIRs and two Charge-Sheets filed, the first FIR having been lodged on 17-11-2013, for which the Charge-Sheet was submitted on 27-02-2014, while the second FIR was lodged on 13-01-2015 and the Charge-Sheet submitted on 04-02-2015. That, the second FIR is hit by the provisions of Section 162 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C') and cannot be considered by the Court. That, further investigation after the lodging of the second FIR was taken up without the permission of the Magistrate and is therefore legally untenable, this contention was buttressed by the ratiocination in Anju Chaudhary v. State of Uttar Pradesh and Another (2013) 6 SCC 384 and Vikash Gupta v. State of Punjab 2002 CRI. L. J. 4165.

(ii) In the next leg of his arguments it was contended that the age of the victim was not proved which is evident from the deposition of P.W. 11 and P.W. 12, who have unambiguously stated that they had not seen the birth certificate being seized although the Prosecution asserts that they were seizure witnesses. They had only signed on the seizure memo Exhibit 4 and failed to identify the birth certificate Exhibit 18, hence, no weight can be attached to the document as proof of the victim's age, on this count reliance was placed on the ratio in Sandeep Tamang v. State of Sikkim Crl. A. No. 23 of 2015 decided on 24-06-2016 of this Court and Lall Bahadur Kami v. State of Sikkim SLR (2017) SIKKIM 585. That infact the act alleged to be sexual assault was a consensual act between the victim and the Appellant and the Appellant cannot be foisted with the offence of rape, for which reliance was placed on Dr. Dhruvaram Murlidhar Sonar v. State of Maharashtra and Others AIR 2019 SC 327. That in view of the above facts and circumstances the Prosecution case has not been proved beyond a reasonable doubt besides being besieged with technical infirmities, hence the impugned Judgment and Order on sentence dese