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CNR No: SKHC01-000127-2025 THE HIGH COURT OF SIKKIM: GANGTOK (Criminal Appellate Jurisdiction)

--------------------------------------------------------------------- SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE ----------------------------------------------------------------------------------------------------

Criminal Appeal No. 24 of 2025 Limbu Manger @ Raju Thapa, S/o Late xxxxx xxxxxx, Age xxxxx, Resident xxxxxx, Pxxxxxx Sxxxx.

At present: Sikkim State Jail, Rongyek, Gangtok.

….. Appellant Versus State of Sikkim. …..Respondent Appeal under Section 415 (2) of the Bharatiya Nagarik Suraksha Sanhita, 2023.

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Appearance:

Mr. D. K. Siwakoti, Advocate (Legal Aid Counsel) for the Appellant.

Mr. Yadev Sharma, Additional Public Prosecutor for the Respondent.

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Date of Hearing : 10.09.2026 Date of Judgment : 10.09.2026 Date on which uploaded : 12.09.2026 J U D G M E N T (ORAL)

Bhaskar Raj Pradhan, J.

1. The appellant has been convicted for commission of “aggravated sexual assault” upon the survivor. This is a criminal appeal against the impugned judgment dated 10.06.2025 and order on sentence dated 16.06.2025 passed by the learned Special Judge (POCSO) Act, 2012 in S.T. (POCSO) Case No.06 of 2024 wherein the learned Special Judge has found the appellant guilty of the offence under section 9(l) punishable under section 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). Accordingly, he has been sentenced to undergo rigorous imprisonment for a term of five years and fine of Rs.2000/- for the said offence. The learned Special Judge has also directed that the period of imprisonment already undergone by the appellant during investigation and trial shall be set off against the sentence. A sum of Rs.15,000/- has also been recommended to be paid to the survivor as compensation under the Sikkim Compensation to Victims (or their Dependents) Scheme, 2021.

Appellant’s Submissions

2. Mr. D.K. Siwakoti, learned counsel for the appellant raises four submissions. Firstly, it is submitted that during the examination of the survivor’s father (P.W.3) who had lodged the First Information Report (FIR) (exhibit P-4/P.W.3) he deposed that he had been informed by his wife (P.W.2) about the incident stating that the appellant had come to their house and had sexually assaulted their daughter-survivor (P.W.1). The mother (P.W.2) while describing the alleged offence to her husband had stated “jew ma hath lagaya cha” which translated would read as “touched her body”. The learned counsel submits that however in the depositions of the survivor (P.W.1) as well as the mother (P.W.2) the allegation is of touching the survivor’s breasts. It is therefore, submitted that this is a discrepancy which ought to have been noted by the learned Special Court.

3. The second submission is on whether the offence would amount to “aggravated sexual assault” or “sexual assault” as in the FIR (exhibit P-4/P.W.3) lodged by the survivor’s father (P.W.3), it was stated that the appellant had touched her breasts but there was no mention of having done so repeatedly. To strengthen this argument the learned counsel also takes me to the deposition of the survivor’s mother (P.W.2) where she has deposed that the survivor had informed her that the appellant had fondled her breasts in their kitchen but had not mentioned the fact that it was done repeatedly. He also draws my attention to the examination of Dr. Sidhant Basnett, the Medical Officer (P.W.10) who also deposed that on local examination the survivor had revealed that the appellant had forcefully touched/fondled with her breasts.

4. The third submission raised by the learned counsel is that there is discrepancy in the exact time of the alleged incident in as much as the survivor deposed that it happened at 04.00 p.m., the mother (P.W.2