Courts may determine a minor child's age through consistent witness testimony and direct judicial observation in the absence of conclusive documentary records, and appellate courts will not interfere with trial court findings unless they are proven to be perverse or fundamentally illegal.

JUDGMENT :

Meenakshi Madan Rai, J.

1. The Appellant was tried for and found guilty of having committed the offence of aggravated sexual assault and aggravated penetrative sexual assault, on a child, below twelve years and convicted and penalised accordingly. This Court is to determine, whether the Judgment of conviction and Order on Sentence was correctly handed out to the Appellant, by the Learned Trial Court.

2. Before delving into the merits of the matter, the Prosecution narrative is summarised. On 15-09-2022, PW-1 the mother of the minor victim, lodged an FIR Exbt P-2/PW-1, before the concerned Police Station, informing that, on 14-09-2022, at around 10.30 p.m., her child PW-2, aged about four years, told her that the Appellant had called her to his room, directed her to close the door, undress herself and he touched her private parts, inserted his private part in her mouth and attempted to insert his private part into hers.

3. PW-13 the Investigating Officer (I.O.) of the case, on being endorsed with the investigation and on completion thereof, submitted Charge-Sheet against the Appellant, under Section 376 of the Indian Penal Code, 1860 (hereinafter, “IPC”), read with Sections 4/7 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, “POCSO Act, 2012”) and Sections 3(a)(c)(d)/5(m)/6 and 8 of the same Act.

(i) The Learned Trial Court framed Charge against the Appellant under Section 376AB of the IPC, Section 6 and Section 10 of the POCSO Act, 2012. The Charges having been read over and explained to the Appellant, he entered a plea of “not guilty” and sought to be tried. The Prosecution examined thirteen witnesses. On closure of the Prosecution evidence, the Appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter, “Cr.P.C.”), where he reiterated his innocence and asserted that a false case had been registered against him. He desired to and examined himself as his witness.

(ii) The Learned Court of the Special Judge (POCSO Act, 2012), Gangtok, on appreciation of the evidence furnished, pronounced the impugned Judgment on conviction on 26-03-2024, in S.T. (POCSO) Case No.28 of 2022. Vide the impugned Order on Sentence, dated 27-03-2024, the Appellant was sentenced to twenty years of rigorous imprisonment and a fine of Rs. 5,000/- (Rupees five thousand) only, for the offence under Section 5(m) punishable under Section 6 of the POCSO Act, 2012, while under Section 9(m) punishable under Section 10 of the POCSO Act, 2012, he was ordered to undergo rigorous imprisonment of five years and to pay a fine of Rs. 5,000/- (Rupees five thousand) only. Both sentences of fine bore default stipulations.

4. Learned Counsel for the Appellant while pointing out the perceived flaws in the Prosecution case, contended that, PW-10 the Doctor, who examined the victim, was not able to establish that the injury/redness on the vagina of the child was due to sexual assault. She also could not identify the victim in the Court room. The evidence of the victim, being rife with inconsistencies, are indicative of tutoring. No person witnessed the victim entering the house of the Appellant and the victim’s mother admitted that, they did not visit the Appellant’s house. It is the Prosecution case that, the grandparents were the victim’s caregivers when her parents were out for work, but their non-examination as Prosecution witnesses leads to an adverse inference against the Prosecution. The FIR alleges that the incident took place at around 10.30 p.m. when no child of four years would possibly be out of her house. The Appellant