In the absence of conclusive proof of the victim's minority and forensic evidence of penetrative sexual assault, a conviction under the POCSO Act cannot be sustained; the court may instead convict for the lesser offence of sexual harassment under the IPC if the evidence supports it.

THE HIGH COURT OF SIKKIM : GANGTOK

(Criminal Appeal Jurisdiction)

Dated : 10^th September, 2025

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DIVISION BENCH : THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE

THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE

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Crl. A. No.08 of 2023

Appellant : Tashi Pintso Lepcha

versus

Respondent : State of Sikkim

Application under Section 374(2) of the

Code of Criminal Procedure, 1973

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Appearance

Mr. Thupden Youngda, Advocate (Legal Aid Counsel) for the

Appellant.

Mr. Shakil Raj Karki, Additional Public Prosecutor for the

Respondent.

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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

Crl. A. No.08 of 2023

Tashi Pintso Lepcha vs. State of Sikkim 2

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 IPC, read

with Section 4 of the POCSO Act.

(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.¹

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

1

1995 Supp (4) SCC 419

Crl. A. No.08 of 2023

Tashi Pintso Lepcha vs. State of Sikkim 3

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 of