Advocates:
['Mr U P Sharma', 'Legal Aid Counsel', 'Ms Pollin Rai', 'Asst Public Prosecutor', '', 'Mr S K Chettri', 'Mr Thinlay d bhutia', 'Addl Public Prosecutor']

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Crl. Appeal No.17 of 2018

Raju Prasad v. State of Sikkim

THE HIGH COURT OF SIKKIM: GANGTOK

(Criminal Appellate Jurisdiction)

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

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Criminal Appeal No. 17 of 2018

Raju Prasad

S/o Shri Sambu Ram,

R/o Rangpo,

East Sikkim.

.… Appellant

versus

State of Sikkim

…. Respondent

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Appeal under Section 374(2) of the Code of Criminal

Procedure, 1973.

Appearance:

Mr. U. P. Sharma, Legal Aid Counsel assisted by Mr.

Mahendra Thapa and Mr. Kushan Limboo, Advocates

for the Appellant.

Mr. Thinlay Dorjee Bhutia, Additional Public Prosecutor

for the State-Respondent.

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J U D G M E N T ( O R A L )

(04.03.2019)

Bhaskar Raj Pradhan, J

1.

Heard. This is an appeal filed by the Appellant against

his conviction under Section 9(m) of the Protection of

Children from Sexual Offences Act, 2012 (the POCSO Act,

2012) and sentence under Section 10 thereof vide

judgment dated 21.05.2018 and order on sentence dated

22.05.2017 (sic) signed on 22.05.2018. The Appellant has

been sentenced to simple imprisonment for a period of 5

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Crl. Appeal No.17 of 2018

Raju Prasad v. State of Sikkim

years and to pay a fine of Rs.1000/-. In default of payment

of fine, the Appellant is required to undergo further simple

imprisonment of one month. The period of imprisonment

already undergone by the Appellant during investigation and

trial is required to be set off against the sentence imposed.

2.

Mr. U.P. Sharma, learned Legal Aid Counsel for the

Appellant would urge three grounds in the present appeal.

Firstly, that the learned Special Judge erred in passing the

impugned judgment on the basis of a statement of the minor

victim (P.W.1) recorded under Section 164 of the Code of

Criminal Procedure, 1973 (Cr.P.C.) (exhibit-6) and the

preliminary examination (exhibit-7) of the minor victim as

the contents of two are contradictory to her deposition in

Court. Secondly, that the learned Special Judge failed to

take into consideration the fact that prosecution withheld

vital and independent witnesses like the driver, one Simon

Rai of the Bolero vehicle from which the friends of the victim

had seen the Appellant hugging the victim and another

driver-Sudhir Tamang who helped the friends of minor

victim rescue her from the Appellant and the juvenile in

conflict with law. Finally, Mr. U.P. Sharma would also urge

that the learned Special Judge had erred in convicting the

Appellant under Section 9(m) of the POCSO Act, 2012 alone

when he had been charged under Section 9(m) of the POCSO

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Crl. Appeal No.17 of 2018

Raju Prasad v. State of Sikkim

Act read with Section 34 of the Indian Penal Code, 1860

(IPC, 1860).

3.

This Court shall examine each of the three grounds

raised by the learned Counsel for the Appellant. Before that

however, certain uncontroverted facts must be stated.

4.

The First Information Report (FIR) was lodged on

07.03.2017 by the uncle (P.W.2) of minor victim after being

informed by her school friends about the alleged incident.

The investigation pursuant to the (FIR) resulted in a charge-

sheet being filed on 05.04.2017. On examination of the

charge-sheet and hearing the learned Counsels four charges

were framed by the learned Special Judge on 16.08.2017

under Section 9(m) of the POCSO Act, 2012 punishable

under Section 10 thereof read with Section 34 of the IPC,

1860; under Section 354/34 of the IPC, 1860; under Section

363/34 of the IPC, 1860 and Section 342/34 of the IPC,

1860.

5.

The indictment against the Appellant was that on