Statements recorded under Section 164 of the Code of Criminal Procedure are not substantive evidence and serve only to corroborate or contradict during trial under strict procedural compliance. Consent provided by a minor in the context of sexual offences is inconsequential for determining guilt.

JUDGMENT :

Meenakshi Madan Rai, J.

1. The Appellant was convicted of the offences under Section 3(a), punishable under Section 4 and Section 5, punishable under Section 6, of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, the “POCSO Act”), vide the impugned Judgment dated 24-04-2024, in ST (POCSO) Case No.12 of 2022, in the Court of the Special Judge (POCSO Act, 2012), Gangtok, Sikkim. On 29-04-2024, he was sentenced to undergo rigorous imprisonment for a period of twenty years and fined Rs. 2,000/- (Rupees two thousand) only, for the offence under Section 5(m), punishable under Section 6 of the POCSO Act with a default stipulation. While sentencing the Appellant under Section 5(m)/6 of the POCSO Act, the Court reasoned that, as the victim was below twelve years of age, the convict was sentenced under Section 6 of the POCSO Act, for aggravated penetrative sexual assault. He was therefore not required to be sentenced for the same offence under Section 4 of the POCSO Act as the penalty prescribed under Section 6 of the POCSO was greater in degree.

(i) Aggrieved by the Judgment and Sentence, the Appellant is before this Court, impugning both.

2. The Prosecution narrative is that, on 02-03-2022 the FIR, Exbt P-11/PW-9 was received from PW-9, informing that, her step-sister PW-1, aged about twelve years was missing from their residence around 05.00 p.m., on 24-02-2022. She was last seen with the Appellant, a driver, who was not responding to calls on his cell phone. The FIR was duly registered that same day under Section 363 of the Indian Penal Code, 1860 (hereinafter, the “IPC”) against the Appellant. Investigation was endorsed to PW-11 the Investigating Officer (IO), whereupon it was revealed that the Appellant was known to the victim's family since the past two years. During her father's treatment at Siliguri, and after his demise the Appellant helped them with their household rations. On 24-02-2022, the Appellant went to the victim's house and asked her to accompany him to Gangtok. She left without her mother's consent and spent the night with him at a hotel in Gangtok. The victim claimed that night she was not sexually assaulted by the Appellant. On 25-02-2022, they went to Pelling, West Sikkim, with tourists in the Appellant's vehicle and booked into one hotel room. On 26-02-2022, on account of mechanical defects in the Appellant's vehicle they could not return home, and continued to stay in the same hotel till 27-02-2022, where the Appellant allegedly sexually assaulted PW-1 several times. On 28-02-2022, after the vehicle was repaired, they returned together to Gangtok and spent another night together. On 01-03-2022, the Appellant took some tourists to North Sikkim and PW-1 accompanied them where they again shared a hotel room. On 03-03-2022, they were intercepted by the jurisdictional police personnel and handed over to PW-11. He submitted Chargesheet, against the Appellant under Section 363 of the IPC, read with Section 4 of the POCSO Act.

(i) The Trial Court framed Charge against the Appellant under Section 3(a) punishable under Section 4, Section 5 punishable under Section 6 of the POCSO Act. The Appellant having entered a plea of “not guilty”, the Prosecution examined twelve witnesses in support of its case, on closure of which, the Appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter, the “Cr.P.C.”). He claimed innocence and asserted that the allegations levelled against him were false and fabricated. The Trial Court on appreciation of the entirety of the evidence, pronounced the impugned