The prosecution bears the burden of proving the age of the victim to justify charges under special protective statutes. Absent reliable proof of minority and convincing evidence of non-consent, an acquittal based on a factual finding of consensual sexual activity remains valid and is not subject to appellate interference.

JUDGMENT :

Meenakshi Madan Rai, J.

1. The State-Appellant is aggrieved by the acquittal of the Respondent of the offences under which he was charged, viz; Section 3(a) punishable under Section 4(2) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, the “POCSO Act”), Sections 361 and 375, punishable under Sections 363 and 376 of the Indian Penal Code, 1860 (hereinafter, the “IPC”) respectively, vide the impugned Judgment dated 29-03-2022, in Sessions Trial (POCSO) Case No.10 of 2021 (State of Sikkim vs. Lakpa Sherpa), by the Court of the Learned Special Judge (POCSO Act), Mangan, North Sikkim.

2. We may briefly advert to the facts for clarity. FIR Exhibit 1, was lodged on 20-10-2021, before the jurisdictional P.S., where the alleged victim PW-3, informed that, on 17-10-2021 she returned home to “S”, a town in East Sikkim, where she resided with her mother and step-father, after having spent a week with her father and step-mother, in a village in North Sikkim. She returned to town “S”, to her mother and step-father, but on being reprimanded by them, she left the house and spent the night in her cousin’s house, from where she planned to return to her father’s house the next day. Her cousin, however advised her to return back to her mother, as her school would be re-opening, to that end, he stopped a truck and requested the driver, the Accused/Respondent, to reach her to place, “Z”, from where she would disembark and proceed home. The driver assured her cousin that, he would do so as he was going to Siliguri and town “S” fell en route, where he would drop her instead of “Z”. On reaching “S”, when she requested him to stop the vehicle, he told her that the Police would not permit him to halt and if she accompanied him to Siliguri, on their return he would stop the vehicle at “S”. After completing his errands at Siliguri, they returned, but when she requested him to stop at “S”, he did not do so but took her to his room in an unknown place in North Sikkim, by which time it was around 02.00 a.m. Of the two beds in the room she occupied one. After the lights were switched off, the Respondent came to her bed and committed penetrative sexual assault on her. The next day she reserved a vehicle and went to the place, “Z”, where she was helped by one person to board a vehicle to the town “S” and she reached home at 10.00 p.m. On 20-10-2021 she along with PW-18, her mother, went to the concerned Police Station in North Sikkim from where they were directed to the jurisdictional Police Station and the FIR was lodged.

(i) On the basis of the said FIR, the Police Station registered Case No.03/2021, dated 20-10-2021 under Section 4 of the POCSO Act against the Respondent. The matter having been investigated into by PW-22, Charge-Sheet was submitted against the Respondent, under Section 363 of the IPC, read with Section 4 of the POCSO Act. The Respondent was then tried by the Learned Trial Court for the offences under Section 3(a) punishable under Section 4(2) of the POCSO Act, Section 361 punishable under Section 363 and Section 375 punishable under Section 376 of the IPC, the Charges having been read over and explained to him and a plea of “not guilty” entered by him. The Prosecution examined twenty-two witnesses to prove its case against the Respondent. The Respondent was then examined under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter, the “Cr.P.C.”) and his responses recorded. Thereafter, on