The court clarified that the status of a perpetrator as a public servant does not require them to act in that capacity during the commission of an aggravated sexual assault.

JUDGMENT

Meenakshi Madan Rai, J. - The Prosecution narrative commences with the lodging of the FIR, Exhibit No.1, on 28-02-2016, at around 1800 hours by PW-3 the victim's father, informing that on the same date his seventeen year old daughter, PW-1, had been requested by the Appellant to assist him in some chores. That, she went as requested and helped the Appellant to carry manure till 02.00 p.m. The Appellant thereafter took her to a nearby river, for the purpose of carrying stones, at which time he sexually assaulted her by touching her inappropriately. She escaped from the predator's clutches and called PW-3 on his cell phone at around 04.00 p.m. and informed him of the incident. PW-3 hurriedly reached the house of PW-8, where the victim had taken shelter and took her to the Police Station, where he lodged Exhibit No.1. The Police Station registered a case against the Appellant under Section 354 of the Indian Penal Code, 1860 (hereinafter, the 'IPC'), read with Section 12 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, the 'POCSO Act') and on the same day endorsed it to PW-10, the Investigating Officer (IO) for investigation. Charge-Sheet consequently came to be submitted against the Appellant under Section 354 of the IPC read with Section 12 of the POCSO Act, before the Court of Learned Special Judge (POCSO Act, 2012), Gangtok, Sikkim.

(i) Charge was framed against the Appellant by the Learned Trial Court, for sexual assault under Section 7 of the POCSO Act punishable under Section 8 of the same Act, under Section 9(c) of the POCSO Act punishable under Section 10 of the said Act for aggravated sexual assault as the Appellant was a public servant at the relevant time and under Section 354 of the IPC, for using criminal force against the minor victim with intent to outrage her modesty. The Appellant pleaded 'not guilty' to the charges and claimed trial. The Prosecution examined ten witnesses, including the IO of the case, on closure of which the incriminating circumstances against the Appellant were put to him in his examination under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter, the 'Cr.P.C.') in which he claimed innocence.

(ii) After hearing the opposing arguments of the Counsel for the parties and appreciating the evidence furnished, the Learned Trial Court convicted the Appellant in Sessions Trial (POCSO) Case No.37 of 2019 (State of Sikkim vs. Ganesh Tamang), for the offence under Section 7 punishable under Section 8 of the POCSO Act and sentenced him to undergo simple imprisonment of three years, with fine of ? 5,000/-(Rupees five thousand) only and a default stipulation. While acquitting him of the offence under Section 9(c) punishable under Section 10 of the POCSO Act, it was reasoned that there was no evidence to show that he had committed the offence in the 'garb' of being a public servant and therefore could not be punished under Section 10 of the POCSO Act. No penalty was imposed under Section 354 of the IPC, on grounds that, he had been punished for the more severe offence (supra). Aggrieved, the Appellant is before this Court, assailing the Judgment of conviction and Order on Sentence.

2. Learned Counsel for the Appellant while advancing multipronged arguments contended that, in the first instance the birth certificate of the victim 'Doc A' is in photocopy and consequently her age has not been proved as per the mandate of law. That, Exbt-4, a photocopy of the relevant portion of the live birth register, reveals the date of birth of the victim as 22-021999, however the informant's name has not been recorded in the document. That, the victim allegedly escaped from the Appellant and ran to the house of PW-8, but no injuries were detected on her person. That, the Learned Trial Court has correctly observed that there are flaws in the investigation as the doko (bamboo basket) in which the collected stones were to be carried was not seized by PW-10, nor photographs of the co