The prosecution established the sexual assault case beyond reasonable doubt, affirming that minor discrepancies in witness testimonies do not negate the credibility of the case.

JUDGMENT :

Meenakshi Madan Rai, J.

1. The genesis of the Prosecution case lies in Exhibit P- 8/PW-9, the FIR, lodged before the concerned Police Station, on 17-06-2021, by PW-10 the victim’s father, who informed therein that on 16-06-2021, at around 4 p.m., PW-1 the victim, his son (aged about 9 years) had gone to play in the house of the Appellant/convict (aged about 27 years). He returned home crying at around 5 p.m. On his enquiry, the victim narrated that the Appellant lured him into his house with the promise of sweets, took him inside the room, closed the door and inserted his genital into his mouth as well as into his anus. After a long duration, the Appellant opened the door, upon which the victim fled home, rushed to the wash room and thereafter informed PW-10 that his anus was hurting. On such complaint, the Police Station registered the FIR against the Appellant under Section 363 of the INDIAN PENAL CODE , 1860 (hereinafter, “IPC”), read with Sections 4 /6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, “POCSO Act”) and endorsed it to PW-11 for investigation. Charge- Sheet was filed against the Appellant under Sections 363 /377 of the IPC read with Sections 4 /6 of the POCSO Act, 2012 on completion of the investigation.

(i) The Learned Special Judge (POCSO Act, 2012), East Sikkim, at Gangtok, framed Charges against the Appellant under Sections 5 (m) and 5(l) of the POCSO Act, both punishable under Section 6 of the same Act and under Sections 377 and 342 of the IPC, to which the Appellant while pleading “not guilty” sought a trial. The Prosecution set out to examine eleven witnesses to establish its case. Thereafter, the Learned Trial Court on examination of the Appellant under Section 313 of the Code of Criminal Procedure, 1973, hearing the opposing arguments of the Learned Counsel for the parties and analysing the evidence on record, convicted the Appellant under Sections 5 (m)/6 of the POCSO Act, but acquitted him of the offence under Section 5 (l) of the POCSO Act and Section 342 IPC. It was further observed that as the Appellant is not required to be convicted twice for the same offence under two different legislations, therefore, he was acquitted of the offence under Section 377 of the IPC. The convict was sentenced to undergo rigorous imprisonment for a term of twenty years and to pay a fine of Rs. 5,000/- (Rupees five thousand) only, for the offence under Section 5 (m) punishable under Section 6 of the POCSO Act, with a default stipulation of imprisonment, duly setting off the period of imprisonment undergone during investigation and trial.

2. Learned Counsel for the Appellant before this Court contended that the Appellant was falsely implicated in the offence as he had beaten the victim for having damaged the bamboo stakes supporting the bean stalks, in his kitchen yard. That, PW-5 the Doctor who examined the victim had opined that tenderness over the anal orifice in children can be due to various other reasons. The impugned Judgment reveals that apart from the evidence of the victim, the Court relied erroneously on the hearsay evidence of PWs 2, 3 and 4. The alleged offence is said to have occurred on 16-06-2021 and the FIR was lodged on 17-06-2021 at around 12.11 p.m.