The court held that insufficient evidence for penetrative assault warrants acquittal under specific POCSO sections, yet convicted the appellant for lesser sexual assault under Section 9(n).

JUDGMENT :

Meenakshi Madan Rai, J.

1. Once again the prospect of determining an Appeal where the allegation is of an adult having sexually assaulted a minor girl child, aged about twelve years, stares us in the face, leading us to mull over moral turpitude and moral decadence in our society.

2. On 22-04-2020, the concerned Childline, through a source, received information that a child (PW-1) had been sexually assaulted by her stepfather. The team member of the Childline (PW-9) went to the area for verification and found that the minor child had been sexually assaulted by the Appellant. During counselling, the victim PW-1, revealed that the Appellant had been sexually assaulting her since a year ago but the incidents remained undisclosed by her, to her family members, due to fear of dire reprisal held out by the Appellant to the victim, should she reveal the acts perpetrated on her by him. On the night of 21-04-2020, when the child complained of sudden pain and began to cry, her mother PW-3, enquired of her as to the reason for her crying, whereby she narrated the ordeal of her being subjected to sexual assault by the Appellant, her stepfather since a year back. Consequently, Exbt P-4/PW-9 the FIR, came to be lodged by PW-9 at the concerned Police Station. Investigation was endorsed to PW-13 the Investigating Officer (IO), after the registration of the FIR on the same day, under Section 376 of the INDIAN PENAL CODE , 1860 (hereinafter, the “IPC”), read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, the “POCSO Act”), against the Appellant. On completion of the investigation, Charge-Sheet was submitted against the Appellant under Section 376 of the IPC read with Section 6 of the POCSO Act by the IO, who on his investigation found that the Appellant had been sexually assaulting the minor as alleged. The facts as stated in Exbt P-4/PW-9 is the crux of the Prosecution case. The Appellant at the time of the incident was around 45 years of age.

(i) The Court of the Learned Special Judge, POCSO Act, Gangtok, Sikkim, on finding a prima facie case against the Appellant, framed Charge against him under Section 5 (m) and Section 5 (n), both Sections punishable under Section 6 of the POCSO Act and under Section 376 (2)(n), Section 376 (2)(f) and Section 376 (3) of the IPC. The Appellant having understood the Charges framed against him entered a plea of “not guilty”. Accordingly, trial commenced. The Prosecution examined thirteen witnesses to establish its case. On closure of the Prosecution evidence, the incriminating evidence appearing against the Appellant was put to him under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter, the “Cr.P.C.”). He claimed innocence and asserted that the evidence against him was untrue. Thereafter, the final arguments of the parties were heard and vide Judgment dated 05-07-2023, in Sessions Trial (POCSO) Case No.21 of 2020 (State of Sikkim vs. Ramesh Rai), the Learned Trial Court convicted the Appellant of the offences under Section 5 (m) and Section 5 (n) punishable under Section 6 of the POCSO Act and under Section 376 (2)(n), Section 376 (2)(f) and Section 376 (3) of the IPC. The sentences meted to the Appellant on 10-07-2023 were;

(a) Rigorous imprisonment for a period of twenty years and fine of Rs. 5,000/- (Rupees five thousand) only, for each of the offences under Section 5 (m) and Section 5 (n), both punishable under Section 6 of the POCSO Act. Both the sentences of fine bore default stipulations.

(b) The sentences of imprisonment imposed were ordered to run concurrently setting off the period already undergone by the Appellant during the in