JUDGMENT

Meenakshi Madan Rai, J. - Aggrieved with the Judgment and Order on Sentence in Sessions Trial (POCSO) Case No.02 of 2018, dated 30-06-2021, the Appellant assails both.

2(i). The Prosecution case arose on the basis of Exhibit 3, the First Information Report (hereinafter, the 'FIR'), lodged by P.W 2, the father of the victim on 01-08-2017, before the Sadar Police Station, Gangtok, informing therein inter alia that he lives with his two daughters aged about fourteen and nine years. That, the Appellant is his neighbour. On 31-07-2017, at about 5 p.m when the victim P.W 1 had gone to the house of P.W 8 for an errand, the Appellant came to the courtyard of the house of P.W 8, caught hold of the victim and molested her by groping at her breasts. On the following day, 01-08-2017, he followed P.W 1 to school and at lunch time he sent a student to call her to the school's lower gate, where, he again caught hold of her arms, gave her Rs.40/- (forty) forcibly and attempted to molest her. On both the above occasions she managed to free herself. That, the same evening when P.W 1 reached home after school and entered her home, the Appellant also forcibly entered and tried to rape her. That, P.W 1 was alone at home at that time as P.W 2 was at work and his younger daughter was still at school. The victim managed to escape and ran towards the house of P.W 8 where she sought for help. She also narrated the incident to P.W 3, the younger brother of P.W 8. Assuming that the Appellant had left, she returned home but found him hiding near her house. On noticing P.W 1 entering her house, he also forced entry into her house, molested her and attempted to rape her. At that time, P.W 2 had called P.W 1 on her cell phone to enquire whether she had reached home, whereupon she narrated the entire incident to him. P.W 2 rushed home and found the Appellant who appeared to be inebriated, in the courtyard. Accordingly, P.W 2 lodged Exhibit 3.

(ii) Investigation into the matter by P.W 15, Sub-Inspector of Police, to whom the matter was endorsed, revealed that the Appellant had committed the offence as alleged in Exhibit 3. P.W 15 submitted Charge-Sheet against the Appellant under Sections 376 /511/354(D)/342/448 of the INDIAN PENAL CODE , 1860 (hereinafter, the 'IPC'), read with Section 8 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter the 'POCSO' Act). On receipt of the Charge-Sheet, the Learned Trial Court framed charge against the Appellant under Section 9 (l) of the POCSO Act and Sections 354 D(1)(i), 451, 341, and 342 of the IPC.

3(i). The Appellant entered a plea of 'not guilty' and sought trial. Fifteen prosecution witnesses were examined following which the Appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter, the 'Cr.P.C') where he denied the incidents. He sought to and was permitted to examine three witnesses. The Judgment and Order on Sentence followed, whereby the Learned Trial Court, convicted the Appellant under Section 9 (l) of the POCSO Act and sentenced him to undergo simple imprisonment for a period of five years and to pay a fine of Rs.10,000/-(Rupees ten thousand) only, in default thereof, to undergo further simple imprisonment for a period of six months under Section 10 of the same Act. He was also sentenced to undergo simple imprisonment for a period of two years under Section 354 D(1)(i)/(2) of IPC with fine of Rs.10,000/-(Rupees ten thousand) only, and default clause of imprisonment. He was further sentenced to undergo simple imprisonment for a period of two years with fine of Rs.10,000/- (Rupees ten thousand) only, under Section 451 of the IPC with default clause of imprisonment. The Sentences were ordered to run co