THE HIGH COURT OF SIKKIM : GANGTOK (Criminal Appeal Jurisdiction)

Dated : 16^th April, 2025 ---------------------------------------------------------------------

DIVISION BENCH : THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE ---------------------------------------------------------------------

Crl.A. No.04 of 2024 Appellant : Shanu Rai @ Netra Kumar Rai versus Respondent : State of Sikkim An application under Section 374(2) of the Code of Criminal Procedure, 1973 ------------------------------------------------------------------

Appearance Mr. Safal Sharma, Advocate (Legal Aid Counsel) for the Appellant.

Mr. Yadev Sharma, Additional Public Prosecutor with Mr. Sujan Sunwar, Assistant Public Prosecutor for the State-Respondent.

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JUDGMENT Meenakshi Madan Rai, J.

1. This Appeal assails the conviction of the Appellant under Section 5(g), punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, “POCSO Act, 2012”) and under Section 366 of the Indian Penal Code, 1860 (hereinafter, “IPC”), vide the impugned Judgment, dated 20-12- 2023, in S.T. (POCSO) Case No.19 of 2020, of the Court of the Learned Special Judge, POCSO Act, 2012.

(a) The Order on Sentence, dated 21-12-2023, directed the Appellant to undergo rigorous imprisonment for a term of twenty years and to pay a fine of ₹ 2,000/- (Rupees two thousand) only, for the offence of sexual assault and to undergo simple imprisonment for a term of five years and fine of ₹ 2,000/- (Rupees two thousand) only, for the offence of abduction, with default stipulations. This order is also impugned.

2. The facts of the Prosecution case briefly summarised is that, on 21-03-2020, PW-1, the victim lodged an FIR, Exbt P-1/PW- 1 informing that, on the relevant night when she was asleep along with her younger brother and sister at her home, she woke up to some knocking on the door and opened it. Two unknown persons closed her mouth, took her to a nearby jungle and pushed her to the ground. She recognised the Appellant, a co-worker of her parents, who disrobed and sexually assaulted her. Investigation was endorsed to PW-12, the Investigating Officer (I.O.), who on completion thereof, submitted Charge-Sheet under Section 6 of the POCSO Act, 2012, against the Appellant. The Learned Trial Court proceeded to frame Charge against the Appellant under Sections 366/34, 376D, 376DA of the IPC and Section 5(g) of the POCSO Act, punishable under Section 6 of the same Act, read with Section 34 of the IPC. The Charge having been read over to the Appellant, he entered a plea of “not guilty”, pursuant to which trial commenced and the Prosecution examined twelve 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.”) to enable him to explain the incriminating evidence against him and his responses recorded. He sought to and examined himself as DW-

1 and his mother as DW-2.

3. Learned Counsel for the Appellant canvassed that the Learned Trial Court was in error in convicting the Appellant under the provisions of the POCSO Act, 2012 (supra), as the age of the victim was not proved beyond reasonable doubt. The Birth Certificate of the victim was not furnished to fortify the Prosecution case. The victim’s father gave her date of birth as 19-04-2007 during her school admission, while PW-1 the victim and her mother PW-2 stated that, it was 19-04-2009, which are contradictory to each other. The entry of the date of birth in the School Admission Register was made in the year 2016, when the victim was admitted in Class III, no other document, such as, admission to her previous school or Birth Register was furnished to augment the assertion of the Prosecution regarding the correct date of birth of the victim. That apart, the victim has made several improvements in the Pros