The prosecution bears the burden of proving a victim's age and the specific elements of an offence beyond reasonable doubt. Without authenticated documentary age proof and conclusive medical evidence of penetration, convictions for aggravated sexual offences cannot be sustained, necessitating modification to lesser offences.

JUDGMENT :

Meenakshi Madan Rai, J.

1. In this Appeal, which assails the Judgment dated 29- 11-2018, of the Court of the Special Judge (POCSO), West Sikkim, at Gyalshing, in Sessions Trial (POSCO) Case No.08 of 2018 (State of Sikkim vs. Tashi Pintso Lepcha) and the Order on Sentence of the same date, three specific points of challenge have been raised by Learned Counsel for the Appellant i.e., (i) The Prosecution has failed to prove the age of minority of the victim; (ii) There is no proof of penetrative sexual assault; and (iii) There are inconsistencies in the previous statement of the victim with her evidence as deposed in Court.

2. Before examining the merits of the Appeal, the Prosecution case is narrated briefly. On 09-03-2018, PW-2 the victim‘s father lodged Exbt-3 the FIR, alleging therein that his thirteen year old daughter PW-1, had been sexually assaulted by the Appellant, near her school compound, between 01.05 p.m. to 01.45 p.m. The matter came to be registered before the jurisdictional police station as FIR GPS Case No.11/2018, dated 09- 03-2018, under Sections 341, 376 of the Indian Penal Code, 1860 (hereinafter, the "IPC") read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, the "POCSO Act"). Investigation was endorsed to PW-17, the Investigating Officer (IO), on completion of which, Charge-sheet was submitted against the Appellant under Sections 376/341/506 of the , read with Section 4 of the .

(i) The Trial Court framed charged against the Appellant under Sections 376(2)(f), 376(2)(i) and 354 of the IPC along with Section 5(n) punishable under Section 6 of the POCSO Act. The Appellant entered a plea of ―not guilty‖ and claimed trial. On such plea the Prosecution took to furnishing and examining seventeen witnesses before the Trial Court. The Trial Court did not frame any specific question for determination but in the impugned Judgment discussed amongst other issues, the non-production of the victim‘s birth certificate by the Prosecution. After taking into consideration the evidence of PWs 1, 2, 10 and 17 and also relying on the Judgment of the Supreme Court in Pradeep Kumar vs. State of U.P. , 1995 Supp (4) SCC 419 the Court concluded that the victim was a minor, aged thirteen years, at the time of the lodging of Exbt-3. The Trial Court then embarked on assessing the evidence of the victim and whether she was able to establish that the offence was committed against her. In such exercise, the statement of the victim PW-1, her father PW- 2, PWs 3, 4, 5, 6, 8, 9, 10, 13, 14 and 17 were considered and on appreciating the evidence, it was concluded that the incident of aggravated penetrative sexual assault was committed by the Appellant upon the victim and duly proved. It was also proved by the evidence of the victim and her father PW-2 that, the Appellant is a relative of the victim being the victim‘s elder aunt‘s husband. Thus, on analysing the entire Prosecution evidence, the Court came to a finding that the Prosecution had established the offence under Section 5(n) punishable under Section 6 of the against the Appellant. He was consequently sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 10,000/- (Rupees ten thousand) only, under Section 5(n) punishable under Section 6 of the , with a default stipulation. It was also observed that as the ingredients of (2)(f)/376(2)(i) of the are ingrained in Section 5(n) of the , a separate discussion and decision under the said sections were not required neith