Lalit Chettri vs State Of Sikkim

Meenakshi Madan Rai, J

The Appellant herein, aged about twenty nine years, is alleged to have sexually assaulted the victim, aged about eight years. The Court of the

learned Special Judge, Protection of Children from Sexual Offences Act, 2012 (for short the “POCSO Actâ€), South Sikkim at Namchi, convicted

the Appellant of the offence under Section 9 (m) punishable under Section 10 of the POCSO Act and sentenced him to undergo Simple Imprisonment

for a period of five years and to pay a fine of Rs.2,000/- (Rupees two thousand) only, under the said provisions of law. In default of payment of fine,

he was sentenced to further one month imprisonment. The fine, if recovered, was to be made over to the victim, as compensation.

Learned Counsel for the Appellant submits that the victim has not given a correct account of the incident, since there are contradictions in the

evidence of the victim PW1 and other witnesses being PW2 and PW3. PW1, the victim, has not stated in her evidence that the Appellant had kissed

her, while PW2 and PW3 have stated that the Appellant had kissed the victim. PW3 has said that he did not narrate the incident to anyone but as per

PW2, PW3 narrated the incident to him after which they went to the house of the Appellant together. This event is however not corroborated by

PW3. In view of the aforestated anomalies and contradictory evidence, according to learned Counsel for the Appellant it is doubtful as to whether the

incident occurred at all. Hence, the Appeal be allowed and the Appellant be acquitted of the offence.

Per contra, learned Assistant Public Prosecutor for the State contended that the evidence of PW1, PW2 and PW3 have withstood the test of cross-

examination and none of the statements made by the three witnesses nor their evidence-in-chief have been controverted or decimated in cross-

examination. No reason whatsoever arises for the victim to have made out a false case against the Appellant and the consistent evidence of PW1,

PW2 and PW3 lends support to the Prosecution case. In such a circumstance, the impugned Judgment and Order on Sentence should not be

interfered with.

I have heard the rival contentions of learned Counsel for the parties at length and have carefully considered all evidence and documents on record.

The impugned Judgment and the Order on Sentence have also been carefully perused.

The prosecution case commenced on the lodging of Exhibit 6, the First Information Report (for short “FIRâ€) by PW10 on 15.11.2016, when the

mother of the victim informed therein that the incident had occurred sometime between Dussehra and Diwali festival when the victim was going to

School from her home. En route the Appellant caught her and inserted his hands into the genital of the victim and his tongue into her mouth, which

was witnessed by PW3, a co-villager. After the incident, the Appellant fled the place of occurrence and later from his house. Subsequently, on his

return to the village, the child refused to go to School hence Exhibit 6 came to be lodged. It was also explained that the belated FIR was on account of

apprehension of ignominy of the child and the village, despite which due to the deep impact on the child, PW10 was constrained to lodge it. Pursuant

thereto, at about 13:00 Hrs, Police Station Case bearing FIR No.63 of 2016 dated 15.11.2016 was registered against the Appellant under Section 376

of the Indian Penal Code, 1860 (for short the “IPCâ€) read with Section 4 of the POCSO Act. The victim was subjected to medical examination at

the Government Health Centre and since the Appellant was absconding, a hue and cry message was sent to trace his whereabouts. Investigation

revealed that the victim was a Class II student in a local Government Primary School located about 600 metres away from her house. On 14.10.2016

at about 8.30 a.m., while the victim was on her way to School, the Appellant called out to her and when she went towards him, he grabbed her by her

hair, kissed her on her mouth, inserted his tongue therein and touched her genital. PW3, another student of a nearby Government School witnessed the

incident and confronted the Appellant upon which the Appellant left the place of occurrence. Thereafter PW3 consoled the minor victim and

suggested that she report the incident to her parents which the minor victim did not. Approximately, a month later on 11.11.2016, when PW3 met the

victim’s father PW2, at a neighbour’s house, he narrated the incident to him. PW2 then returned home and informed PW10, his wife, mother

of the victim, who in turn enquired from the victim, PW1. The victim then narrated the entire incident to them. PW10 reported the matter at the

Panchayat level the next day. The Panchayat member, PW9 withheld the matter for some time. On 14.11.2016, on PW2 coming to learn of the arrival

of the Appellant at his residence, he went with his wife to confront him but the Appellant denied the occurrence of any such incident. Thereafter PW2

informed the Panchayat President who suggested that he file a Report before the Police. In the meanwhile, the Appellant absconded from the village

and was later arrested on 26.04.2017 at Singtam. On completion of investigation, Charge-Sheet came to be submitted against him under the provisions

of law supra.

The learned trial Court, framed charge under Section 9(m) punishable under Section 10 of the POCSO Act read with Section 5(m) punishable

under Section 6 of the POCSO Act. The Appellant pled “not guilty†to the charges and claimed trial. The Prosecution examined twelve witnesses

to establish its case. On closure of evidence, the Appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (for short

“Cr.P.C.â€) and his responses duly recorded. The learned trial Court considered the evidence furnished and the impugned Judgment and Order on

Sentence came to be pronounced.

The age of the victim is not contested. It emanates that her date of birth is 20.05.2009. The incident having occurred sometime in October, 2016,

would make her about seven years at the time of the incident.

The only question that falls for consideration before this Court is whether the incident occurred at all.

PW1, victim, in her evidence has stated that she did not remember the date and month of the incident but in 2016, one day when she was going to

School, she met the Appellant en route. He hit her on her eyes with his fist, caught hold of her and put his hand inside her panty and fondled her

vagina. PW3 saw the Appellant committing the act and admonished the Appellant who fled, while the victim went to School crying. This evidence has

withstood the detailed cross-examination. The victim’s father, PW2, lends support to her evidence inasmuch as he has stated that PW3 had

witnessed the incident and it was PW3 who narrated to him that he saw the child being kissed by the Appellant while she was going to School. After

having learnt of the incident, he narrated it to his wife, PW10 who then coaxed PW1 to tell her the entire incident. The victim narrated the incident to

her as detailed supra. Thus, the evidence of the incident, as narrated by PW1 and PW10 are consistent. Their cross-examination failed to demolish all

that was stated in their evidence-in-chief. Although the Section 164 Cr.P.C. Statement of the victim was recorded by a Magistrate but the victim was

not confronted with the Statement before the learned trial Court to test its veracity hence shearing the Statement of any relevance.

PW9, the Panchayat President has stated that the victim’s mother came to her house and reported that the Appellant had sexually assaulted

her minor daughter between Dussehra and Diwali 2016, whereupon she told PW10 that such incident should be informed to the Police. Although it

was vehemently argued that the truth of the victim’s evidence cannot be trusted, while differing with this argument it is relevant to point out that

the evidence of PW1 and PW10 have been consistent on the said aspect. PW3 has supported the evidence of PW2. He has categorically stated that

he witnessed the incident, therefore the question of PW1 concocting the incident does not arise nor is there any reason given by the Appellant for

PW1 to have made an untruthful statement.

In view of the foregoing discussions, I am of the considered opinion that no reason arises to interfere with the findings of the learned trial Court.

Consequently, the Appeal stands dismissed.

No order as to costs.

Copy of this judgment be sent to the learned trial Court, for information.