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2024 Supreme(Online)(Sikk) 30

HIGH COURT OF SIKKIM
Meenakshi Madan Rai, J
Padam Bahadur Chettri – Appellant
Versus
State of Sikkim – Respondent
Crl. A. No.16 of 2023

Advocates:
For the Appellants/Petitioners: Zola Megi
For the Respondents: S. K. Chettri

Criminal acts involving sexual contact with a minor's sensitive body parts imply sexual intent, rendering intoxication an insufficient defense unless the accused proves total mental incapacity to form the specific intent required by law.

Headnote:(A) Protection of Children from Sexual Offences Act, 2012 - Sections 7, 8, 9, 10, and 30 - Indian Penal Code, 1860 - Section 86 - Evidence Act, 1872 - Sections 67 and 114(g) - Sexual assault - Determining victim age and sexual intent - Production of birth certificate without proving its contents through the maker is insufficient for age determination. (Paras 10, 10(i))

(B) Sexual Intent - Section 7 of the Act - Physical contact with sexual parts is prima facie suspect of sexual intent; sexual intent is fact-dependent and determined by the circumstances of the act - Every touch of sexual organs should be viewed as suspect unless proven otherwise. (Paras 12, 12(i))

(C) Intoxication as a Defence - Section 86 of the Indian Penal Code - Burden rests on the accused to prove that intoxication incapacitated them from forming the specific intent required for the crime - Intoxication that merely increases irritability or fails to inhibit passion does not rebut the presumption that a person intends the natural consequences of their acts. (Paras 14, 15, 15(ii))

(D) Statutory Presumption - Section 30 of the Act - Culpable mental state must be presumed by the Special Court; the burden to rebut this is on the accused, and such facts must be proved beyond reasonable doubt. (Para 17)

Facts of the case:
The appellant was convicted for sexual assault of a minor following an incident in a public transport vehicle. Witnesses testified that the appellant touched the minor's private parts repeatedly while appearing intoxicated. The defense argued the appellant was too inebriated to form intent and challenged the victim's age documentation.

Findings of Court:
The court ruled that the prosecution failed to prove the victim was under twelve years of age due to lack of authentic documentation and evidence from the maker of the birth certificate. However, the court established that the appellant's conduct satisfied the requirement for 'sexual intent' under the established law, and the defense of intoxication failed as the appellant did not prove total mental incapacity.

Issues: Determining the authenticity of age proofs for minors and the standard for establishing 'sexual intent' within the context of a defense claiming intoxication.

Ratio Decidendi: Sexual intent is a fact-dependent inquiry; unauthorized contact with a child’s sensitive body parts implies the necessary mens rea. Intoxication is not an excuse unless it causes total mental incapacity to form the specific intent, and the burden of disproving such intent lies with the accused under existing statutory presumptions.

Result: Appeal partly allowed. Conviction under the aggravated offense section set aside; conviction for sexual assault upheld under Section 7/8.

Table of Content
1. establishing the factual matrix and procedural history of the criminal case. (Para 1 , 5 , 6 , 7)
2. summary of rival contentions regarding intoxication, evidence reliability, and victim age. (Para 2 , 3)
3. judicial assessment of evidence and analysis of witness testimony and medical opinions. (Para 4 , 8 , 9 , 13)
4. requirement of strict documentary evidence to establish victim's age for statutory provisions. (Para 10)
5. defining sexual intent, impact of intoxication, and reverse burden of proof under pocso. (Para 11 , 12 , 14 , 15 , 16 , 17 , 18)
6. modification of conviction, sentencing, and final disposal of the appeal. (Para 19 , 20 , 21 , 22)

JUDGMENT

Meenakshi Madan Rai, J.

1. Being aggrieved by the Judgment of the Court of the Special Judge (POCSO Act, 2012), Gangtok, dated 19-06-2023, in Sessions Trial (POCSO) Case No.25 of 2019, this Appeal assails it. The Appellant was convicted of the offence under Section 9(m) punishable under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Act”) and consequently sentenced to undergo simple imprisonment for five years and to pay a fine of ₹ 5,000/- (Rupees five thousand) only. A default clause of imprisonment was imposed in the event of non- payment of fine. He was acquitted of the offence under Sections 9(a)(iii) and 9(l) of the POCSO Act.

2. Learned Counsel for the Appellant raised the argument that at the relevant time the Appellant was inebriated and in no condition to have committed the alleged offence against PW-1. He remained asleep during the entire journey after he boarded the taxi, as vouched for by the evidence of PW-4, the taxi driver. Learned Counsel urged that the Prosecution case is unreliable as the vacillating statements of PW-6 viz., in the FIR Exhibit P-6/PW-6 where she stated that it was PW-1 who had informed her at around 07.30 p.m. that, the Appellant had touched his private part repeatedly, while before the Court she claimed to have herself noticed that the Appellant had placed his hands between her son’s legs and on his genital, raises doubts about the veracity of the Prosecution case. As PW-1 corroborated the evidence of PW-6, regarding the incident as having been witnessed by her, his statement is also rendered contradictory to the contents of Exhibit P-6/PW-6. That, the evidence of PW-1 reveals that he was seated in the middle of the rear seat with his mother seated to his left and the Appellant to his right, while another passenger was in the front seat of the vehicle. That, an offender would choose an isolated place to commit such an offence and it is unbelievable that the Appellant would attempt to sexually assault a minor in a taxi with his mother seated in close proximity while travelling in a taxi filled with passengers. That, PW-1 told PW-2 the Doctor who examined him, that his co-passenger had fondled and ‘pinched’ his private part. That, PW-1 thus introduced a previously undisclosed allegation as neither PW-1 nor PW-6 have alleged that the Appellant had also pinched the genital of PW-1, therefore the authenticity of the Prosecution case is suspect. PW-5 who examined the Appellant on 11-05-2019, at 12.10 p.m., found him to be smelling of alcohol, fortifying the evidence of PW-4, thereby vouching for the Appellant’s inability to commit the offence. That, the cross-examination of PW-4 indicates that in fact PW-6 was arguing with the Appellant inside the vehicle before the journey commenced as the Appellant was drunk, which consequently led to PW-6 implicating him by a false allegation. As per PW-4, the Appellant habitually drank and fell asleep after boarding his taxi. That, PW-6 has also categorically deposed that the Appellant was drunk. Considering the condition of the Appellant, the offence of sexual assault cannot be foisted on him which he had no intention of committing. Learned Counsel for the Appellant speculated that in all likelihood, while asleep, he had unwittingly placed his hand o

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2024 Supreme(Online)(Sikk) 30

HIGH COURT OF SIKKIMMeenakshi Madan Rai, JPadam Bahadur Chettri – AppellantVersusState of Sikkim – RespondentCrl. A. No.16 of 2023

Criminal acts involving sexual contact with a minor's sensitive body parts imply sexual intent, rendering intoxication an insufficient defense unless the accused proves total mental incapacity to form the specific intent required by law.

Cases Referred (5)

HIGH COURT OF SIKKIM
Meenakshi Madan Rai, J
Padam Bahadur Chettri – Appellant
Versus
State of Sikkim – Respondent
Crl. A. No.16 of 2023