The testimony of a victim in sexual assault cases must be credible, and acquittal is warranted when evidence, such as DNA profiling, undermines prosecution claims.

JUDGMENT :

Meenakshi Madan Rai, J.

1. The facts of the case leading to the instant Appeal are that the First Information Report (FIR), Exhibit 4, was lodged by PW-2, the Principal of the school where the victim was studying at the relevant time. It was reported in Exhibit 4 that, on observing PW-1, the victim, a student in the school, she appeared to be in physical discomfort. Accordingly, on the pretext of a medical examination she was taken to the Primary Health Centre (PHC) and made to undergo her urine examination, which tested positive for pregnancy. PW-1 told PW-2 that, on the evening of 15-08-2019 when she was returning home, the Accused/Respondent had physical relations with her in a nearby jungle at around 05.00 p.m. Based on Exhibit 4, a case 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”) was registered against the Respondent by the concerned Police Station and taken up for investigation. Finding sufficient prima facie materials against the Respondent, Charge-Sheet was submitted against him under Section 376 of the IPC, read with Section 6 of the POCSO Act. A supplementary Charge- Sheet was undertaken to be filed pursuant to a DNA test being conducted on the birth of the child which later came to be filed on 26-12-2020.

(i) On receipt of Charge-Sheet, the Learned Trial Court framed Charge against the Appellant under Sections 5 (j)(ii) and 5(l) of the POCSO Act, punishable under Section 6 of the same Act and under Section 375 of the IPC, punishable under Section 376 of the IPC. On the Appellant entering a plea of “not guilty” he was tried for the offences charged with. During the trial, the Prosecution examined twenty-two witnesses including the Investigating Officer (I.O.) of the case. The accused was afforded an opportunity to explain the incriminating evidence against him, by his examination under Section 313 of the Code of Criminal Procedure, 1973 and his responses recorded. On consideration of the entire evidence before it, the impugned Judgment in Sessions Trial Case No.04 of 2020 (State of Sikkim vs. Pema Wangchuk Lepcha), dated 16-03-2021, was pronounced acquitting the Respondent of the charges framed against him.

2. The Prosecution case, shorn of irrelevant details is that, the mother of PW-1 having re-married, left for Nepal in January, 2020, leaving PW-1, allegedly 15 years at the time, in the care of her aunt, PW-9. From 03-03-2020 PW-1 attended school. On 05-03-2020 the physical appearance of PW-1 aroused the suspicion of the teachers in the school. On the pretext of administering HPV Vaccine to her, she was taken to the PHC, where on conducting her urine test, she was found to be pregnant. Investigation revealed that, on 15-08-2019 at around 1500 hours the victim while returning home from school after attending the Independence Day function was waiting for a taxi. The taxi driven by the Respondent arrived at the spot where PW-1 was waiting. She boarded it along with PW-11 her friend, PW-6, his wife and daughter. All the other passengers alighted at their destinations before her. En route to her destination, the Respondent took PW-1 to a cave, below the road and sexually assaulted her. Charge-Sheet came to be filed against the Appellant for rape and aggravated penetrative sexual assault. On completion of trial, the Learned Trial Court pronounced the impugned Judgment.

3. Aggrieved with such acquittal the State-Appellant is before this Court urging that the clinching evidence of PW-1, leads to the irresistible conclusion that the Respondent had sexually assaulted the victim. Le