IN THE HIGH COURT OF SIKKIM : GANGTOK

(Criminal Appellate Jurisdiction)

Crl. A. No. 02 of 2019

Depesh Tamang,

aged about 19 years,

S/o Norbu Tamang,

R/o Lotus Valley,

Gyalshing, West Sikkim.

At present Rongyek Jail,

Gangtok, East Sikkim.

...Appellant

Versus

State of Sikkim

...Respondent

BEFORE

HON’BLE MR. JUSTICE ARUP KUMAR GOSWAMI, C.J.

HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, J.

For Appellant

: Mr. Manish Kumar Jain, Legal Aid Counsel.

For Respondent

: Ms. Mukun Dolma Tamang, Assistant Public

Prosecutor.

Date of Hearing

: 16.03.2020.

Date of Judgment

: 23.03.2020.

JUDGMENT

(Arup Kumar Goswami, CJ.)

This appeal is presented against the judgment dated 29.11.2018 and

order on sentence dated 30.11.2018, passed by the learned Special Judge

(POCSO), West Sikkim at Gyalshing, in Sessions Trial (POCSO) Case No. 01 of

2018, convicting the accused/appellant under Section 5(l) of the Protection of

Children from Sexual Offences Act, 2012, for short, „the POCSO Act‟,

punishable under Section 6 of the POCSO Act and sentencing him to suffer

Rigorous Imprisonment for a period of 10 years and to pay a fine of

Rs.10,000/-, in default of payment of fine, to suffer Simple Imprisonment for

two months.

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2.

An FIR was lodged by the father of „X‟ (name withheld) before the

Station House Officer, Tikjuk Police Station on 31.12.2017 stating that his

daughter, aged about 15 years, did not come back after she had gone for

tuition and that she had eloped with the accused and they were then traced in

Gangtok. It is stated that while investigating, it came to light that the accused

had sexually assaulted his daughter several times. On receipt of the FIR, GD

Entry No. 138 was registered and subsequently, Gyalshing Police Station Case

No. 42 of 2017 under Section 363/376 of the Indian Penal Code, 1860, for

short, ‟the IPC‟ read with Section 4 of the POCSO Act came to be registered

against the accused (Exhibit-17). After completion of investigation, police

submitted charge-sheet under Sections 363/376 of the IPC, read with Section

4 of the POCSO Act against the accused whereupon ST (POCSO) Case No. 01

of 2018 was registered in the Court of Special Judge (POCSO).

3.

Statement of „X‟ was recorded under Section 164 of Code of Criminal

Procedure, 1973, for short, „Cr. P.C.‟, before the learned Judicial Magistrate

(I/C), West Sikkim at Gyalshing on 29.01.2018. Both „X‟ and accused were

also medically examined.

4.

Upon hearing learned counsel for the parties and on perusal of the

materials on record, charge was framed against the accused under Section

376(2)(i) of the IPC and under Section 5(l) of the POCSO Act punishable under

Section 6 of the POCSO Act. When charges were read over and explained to

the accused, he pleaded not guilty and claimed to be tried.

5.

The prosecution examined 16 witnesses while defence adduced no

evidence. The accused was examined under Section 313 of Cr. P.C. where he

took the plea of denial. The proceedings were held in camera.

6.

Mr. Manish Kumar Jain, learned Legal Aid Counsel, has submitted that

„X‟, who was examined as PW1 did not implicate the accused either in her

Section 161 Cr. P.C. statement or under Section 164 Cr. P.C. statement which

was exhibited as Exhibit-1 and only in the Court, while deposing she had stated

that she and the accused had „physical relationship‟ 5/6 times and therefore,

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such evidence cannot be relied upon. Her father (PW13) and mother (PW14)

also did not implicate the accused of any penetrative sexual assault or sexual

assault upon their daughter. In any view of the matter, it cannot be inferred

that „physical relationship‟ means aggravated sexual assault within the

meaning of Section 3 of the POCSO Act, he submits. He further submits that

the evidence of PW1 cannot inspire confidence as it would be wholly unrealistic

to acc