The minimum sentence under the POCSO Act must be imposed without discretion, ensuring adherence to the statutory provisions regarding child sexual offenses.

JUDGMENT :

Meenakshi Madan Rai, J.

1. The victim was a six year old child when she was sexually assaulted by the Appellant, who resided near the government residential quarters of the victim and her family. On 26-04-2023, the FIR Exhibit P4/PW-2, was lodged by PW-2, the Counsellor of the District Child Protection Unit (DCPU), before the concerned Police Station, informing therein that the child aged about ten years had been brought that day to her office, by PW-4 her mother, for counselling. The child PW-1 revealed that in the year 2018-19, when she was playing outside her home, the Appellant called her to him, put her on his lap, facing away from him, caressed her and while she was still on his lap made some movements. He then turned her to face him and she felt a thrust inside her vagina, as he moved, while she was on his lap. The FIR also revealed that according to the victim she had also been sexually assaulted by a person named Lalit Subba in 2019. She did not disclose the incident to anyone but complained of frequent urinary infection. Before lodging the FIR she had participated in Taekwondo in school, upon which she had excess vaginal white discharge and thereafter revealed the incident of sexual assault to her mother, who took her to PW-2, for counselling.

(i) The case was registered by the Police Station against the Appellant, under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, “POCSO Act”). Investigation was completed and Charge-Sheet filed against the Appellant under Sections 376 /377 of the INDIAN PENAL CODE , 1860 (hereinafter, “IPC”) read with Sections 6 and 10 of the POCSO Act, by the Investigating Officer, PW-16. The Learned Trial Court framed Charge against the Appellant under eight counts, viz., Sections 5 (l)/6, 5(m)/6, 9(l)/10, 9(m)/10 of the POCSO Act and Sections 375(a)/376(1), 376(2)(n)/376(2), 376AB, 354A(1)(i)/ 354A(2) of the IPC. He pleaded “not guilty” to all the Charges and claimed trial, following which the Prosecution examined sixteen witnesses. On closure of Prosecution evidence, the Appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter, “Cr.P.C.”), where the incriminating evidence against him was put to him. He claimed innocence and sought to clarify that he was not an ambulance driver as alleged in the evidence. That, the mother of the survivor and he had a quarrel in February, 2023 regarding money, hence she was tutored to depose against him. The Appellant sought to disprove the Prosecution case by examining three DWs. Thereafter, final arguments were heard.

(ii) Vide the assailed Judgment dated 30-09-2023 in Sessions Trial (POCSO Act) Case No.02 of 2023 of the Court of Special Judge (POCSO ACT), Mangan District, Sikkim, the Appellant was convicted of the offence under Section 9 (m)/10 of the POCSO Act. He was however sentenced under Section 9 (l)/10 of the POCSO Act to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 5,000/- (Rupees five thousand)only, with a default stipulation.

(iii) He was acquitted of the offences under Sections 5 (l)/6, 5(m)/6, 9(l)/10 of the POCSO Act and Sections 375(a)/376(1), 376(2)(n)/376(2), 376AB, 354(1)(i)/354A(2) of the IPC.

(iv) Aggrieved, the Appellant is before this Court impugning both the