The court affirmed the conviction under the POCSO Act and IPC, finding sufficient evidence of sexual intent despite the appellant's claims of a lack of intent, supported by victim corroboration and age verifications.

JUDGMENT :

Meenakshi Madan Rai, J.

1. Dissatisfied and aggrieved by the Judgment, dated 29- 08-2023, in S.T. (POCSO) Case No.08 of 2022, of the Court of the Learned Special Judge (POCSO), West Sikkim, at Gyalshing, vide which the Appellant was convicted of the offence under Section 7 punishable under Section 8 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, “POCSO Act, 2012”) and under Section 354A(2) of the INDIAN PENAL CODE , 1860 (hereinafter, the “IPC”), and sentenced thereto, the instant Appeal has been preferred.

2. By an Order on Sentence of the same date, he was sentenced to undergo simple imprisonment for a term of three years and fined Rs. 5,000/- (Rupees five thousand) only, with a default clause of imprisonment, under Section 7 , punishable under Section 8 of the POCSO Act, 2012 and rigorous imprisonment for a term of one year under Section 354A(2) of the IPC. The sentences were ordered to run concurrently. The fine imposed was ordered to be paid to the victim in terms of Section 357(1)(b) of the Code of Criminal Procedure, 1973 (hereinafter, “Cr.P.C.”).

3. Learned Counsel for the Appellant/Convict contended that sexual intent which is the sine qua non for an offence under Section 7 of the POCSO Act, 2012, has not been proved by the Prosecution. That, the evidence points to the fact that the Appellant was seated with his wife in the second seat of the vehicle with the victim seated next to his wife, and inadvertently he may have touched the victim in view of the space constraint with four people accommodated in the second seat. However, there was no sexual intent as provided under Section 7 of the POCSO Act, 2012. It is also evident that there was animosity between the victim and the Appellant as she had requested him to exchange seats with her when he boarded the vehicle as she would be alighting earlier than him, but he had refused such exchange. Disgruntled by such refusal, false implication could not be ruled out. That, the Prosecution evidence does not support the case of the victim as PW-2 has admitted that he could not say whether the Appellant had touched the victim inappropriately. PWs 3, 4 and 7 who were the other passengers, travelling in the same vehicle also admitted as much. Hence, the Learned Trial Court erred in holding that the Appellant had touched the victim with sexual intent having touched her breast, despite being requested by the child to refrain from such acts. It was further urged that the age of the victim was not established, consequently no offence under the POCSO Act, 2012, was made out against the Appellant. Hence, the impugned Judgment be set aside and the Appellant be acquitted of all charges.

4. Resisting the arguments advanced by Learned Counsel for the Appellant, Learned Additional Public Prosecutor canvassed that, the victim had been consistent in her evidence before the Court and in her Section 164 Cr.P.C. statement, regarding the fact of the Appellant having touched her inappropriately, which itself suffices as proof of sexual intent. That, the act was witnessed by PW-2 whose evidence on that account was not demolished by cross-examination. PW-7 had also stated that the victim had told the Appellant to sit properly while PW-4 had witnessed the victim crying after she (PW-1) asked the driver to stop the vehicle. To fortify his argument regarding sexual intent, Learned Additional Public Prosecutor placed reliance on the Judgment of this Court in Padam Bahadur Chettri vs. State of Sikkim , [Crl.A. No.16 of 2023 decided on 03-05-2024]. Hence, the conclusion arrived at by the Learned Trial Court warrants no interference and the Appea