Tsewang vs State Of Himachal Pradesh

Tarlok Singh Chauhan, J

The appellant has been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/- and in default, to further undergo simple imprisonment for six months, for the offence punishable under Section 6 of the Protection of Children from Sexual Offences, Act, 2012 (for short “POCSO Act”) and aggrieved thereby has filed the instant appeal.

The case of the prosecution is that on 23.02.2014, a telephonic message was received from Tibetan Welfare Officer Mr. Sonam Dorjee (PW11) about a penetrative sexual assault having been committed by a person with boy aged 10 years at Meetha Nala and sought action. Upon this, report Ext. PW15/A was recorded in the Daily Dairy and Investigating Officer alongwith ASI Ranjit Pal, C. Krishan Kumar and Anil Kumar left for the spot. At the spot, they met the mother of the victim Pema (PW9) alognwith victim (PW10) and Sonam Dorjee (PW11).

The Investigating Officer recorded the statement of the mother of the victim Ext. PW9/A with the help of interpretor Sonam Dorjee, which was signed by her. In her statement, she has stated that on 23.02.2014, her son (victim) alongwith his friend Lobsang had gone to play towards Bhagshu Road and at about 6:00 p.m. when he (victim) returned to the house, then he kept on weeping and on asking, he disclosed that the appellant had offered burger and chips to her son and his friend and took both of them to a place known as Meetha Nala in his quarter. The appellant kept Lobsang busy in watching TV in one room and in another room he committed sexual assault (unnatural intercourse) with her son. He also disclosed that the appellant had threatened not to disclose the incident to anyone and thereafter handed over Rs. 30/- (Rs.15/- each to both of them i.e. victim and his friend Lobsang) and then asked them to go to home with a direction not to disclose this fact to anyone. Thereafter, the mother of the victim met Sonam Dorjee (PW11), who had been working as a Driver at the Tibetan Settlement Office, Mcleodganj. The driver further informed the Settlement Officer about the incident and he, in turn, informed the police, on the basis of which FIR was registered.

The police got medically examined the victim vide MLC Ext. PW1/C and during investigation, she also produced Rs 30/-, three currency notes of Rs. 10/- each before the police, which were taken into possession vide memo Ext. PW8/A. The statement of the mother was recorded vide Ext.PW9/A with the help of the interpretor. Victim as also the appellant was medically examined.

During investigation, the police prepared the spot map on identification of the spot by the victim and the statement of the victim was recorded with the help of the Tibetan Welfare Officer under Section 161 CrP.C. The statement of victim under Section 164 Cr.P.C. was also recorded under Section 164 Cr.P.C. before the JMIC, Dharamahsla,

During investigation, the police took into possession one bed sheet, covers of the quilt and pillow, one towel and muffler and sealed them in a sealed parcel after putting six seal impressions of seal 'K'. The date of birth certificate of the victim was procured and according to the said certificate the age of the victim as reflected in the certificate was 15.07.2003. The appellant was arrested and medically examined by the Medical Officer vide MLC No. 136 of 2014. The material taken into possession by the police was sent for analysis at RFSL, Dharamshala, and on receiving the report from the lab, challan was prepared and presented in the Court.

Finding a prima facie case, charge under the aforesaid sections was framed and put to the accused to which he pleaded not guilty and claimed to be tried.

In order to prove its case, 16 witnesses were examined by the prosecution.

After the closure of prosecution evidence, the appellant was examined under Section 313 Cr.P.C., whereby he denied the prosecution case and pleaded innocence. Opportunity was given to the appellant to lead evidence, however, he did not lead any evidence in defence.

The learned Special Judge after evaluating the evidence, convicted the appellant as aforesaid and aggrieved thereby the appellant has filed the instant appeal.

It is vehemently argued by Shri N. S. Chandel, learned Senior Advocate, duly assisted by Mr. Pranav Sharma, learned Advocate, that a false case has been registered against the appellant because the story as put-forth by the prosecution apart from being false, is totally improbable and full of contradictions, which demolishes the case of the prosecution in its entirety.

Learned counsel for the appellant has raised following points in support of his arguments:-

(i) Prosecution case regarding the commission of offence under Section 6 of the POCSO Act read with under Section 377 IPC is false and the allegations are highly improbable.

(ii) Story regarding handing over Rs. 15/- each to the victim and his friend Lobsang to remain silent is highly questionable apart from being false.

(iii) Appellant not identified by the victim before the Court.

(iv) Non-examination of material witnesse.

(v) Age of the child victim.

On the other hand, Shri J. S. Guleria, learned Deputy Advocate General for the respondent-State would contend that learned Trial court had discussed the evidence at length and only thereafter recorded findings of conviction.

We have heard the learned counsel for the appellant and learned Deputy Advocate General for the State and have gone through the record of the case.

(i) Prosecution case regarding the commission of offence under Section 6 of the POCSO Act read with under Section 377 IPC is false and the allegations are highly improbable.

PW 10 is the victim who deposed that he did not remember the day, date and year of the occurrence correctly, however, he had gone with his friend Lobsang at about 4:00-5:00 p.m. and the occurrence had taken place about one and half years back, when one person met them in Meetha Nalla and had given them chips and burger. After having chips and burger, he had taken them to his house and in the house, the person had opened his pants and had unnatural sexual intercourse with him. Thereafter, the appellant gave Rs. 30/-(Rs. 15 each) and then asked them not to disclose about the occurrence to anyone. Thereafter, the victim came back and narrated the occurrence to his mother. The amount of Rs. 30/-was given by him to his mother. He further stated that when the person had committed penetrative unnatural sexual assault with him, at that time he had cried. He further deposed that he went with his mother to Meetha Nalla, the place of occurrence and had also shown the place to the police. His mother had told about the occurrence to the Tibetan Officials and through the officials his statement was recorded by the police.

To similar effect is the statement of the mother of the victim i.e. PW9 Pema, but her testimony is obviously based on hearsay or what was told to her by the victim.

In this background, it would be relevant to refer to the statement of doctor (PW1), who examined victim as well as the appellant. He stated that on the application Ex.PW1/A that was move by the police for conducting medical examination of the victim, he had examined the victim at around 11:25 p.m. with the history of sexual assault and found that “(1) There was no abrasion or injury mark seen over the anal area. Anal orifice appeared normal, no foreign material was present. Sterile gauze piece used in at the anal area, samples were taken and sealed and were handed over to the police so as to carry out chemical analysis. ” He further deposed that after receipt of RFSL report, he gave its final opinion Ext.PW1/A and prepared MLC Ext. PW1/C. As per his final opinion, there was nothing to suggest that the sexual assault was attempted on the victim. He further deposed that another application Ext. PW1/D was also moved by the police for conducting medical examination of the appellant, who was brought by the police with the alleged history of unnatural sexual intercourse having been committed by him on a 10 years boy. After examining him medically, he observed as under:-

(I) The accused was well built, conscious comfortable, there were well developed secondary sexual character. Vital was normal.

He further opined that there was nothing to suggest that he was incapable of performing sexual intercourse. His pubic hair swab slide from the penis alongwith clothes and MLC was sealed and was handed over to the police for chemical analysis and issued MLC Ext.PW1/E. He identified the appellant in the Court. In cross-examination by the appellant, he admitted that at the time of medical examination of the appellant there was no injury on his private part. He also admitted that there was no sign of unnatural sexual offence having been committed with the victim.

Since, the appellant has been convicted under Section 6 of the POCSO Act and not separately under Section 377 IPC, therefore, it would be relevant to reproduce the Sections 3, 6 and 12 of the POCSO Act, which read as under:-

Penetrative sexual assault- A person is said to commit "penetrative sexual assault" if--(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.

Punishment for aggravated penetrative sexual assault (1) Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.

Punishment for sexual harassment - Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.

It would be noticed from the perusal of the aforesaid provisions that to constitute an offence under Section 6 of the POCSO Act, penetration is sufficient and no semenal discharge is required. Even partial or slightest penetration with or without any emission of semen would be enough for the purpose of Section 6 of the POCSO Act and it is quite possible to commit such offence even without causing any injury to the private parts or leaving any semenal stains. It is settled law that statement of the victim, if it inspires confidence, is sufficient in such type of cases to convict a person even though not corroborated. At the same time, these are only broad propositions and cannot be applied in each and every case uniformly and each case would be required to be decided on the basis of the facts and circumstances and the evidence coming on record.

In the instant case, the medical report can broadly be classified into two parts. The first part, wherein description/nature of injury which pertain to the victim, which goes to indicate that he did not sustain a single scratch or injury and furthermore his anal orifice appears to be healthy and there is no fresh and recent injury detected.

The second part of the report pertains to the medical examination of the appellant on whose organ, wherein again no kind of injury has been found on his private part. As a matter of fact, the doctor has specifically stated that there was no sign of unnatural sexual offence having been committed with the victim.

To appreciate this point, we may refer to the J.B. Mukherjee's Forensic Medicine and Toxicology; page 744:

Per rectal examination with speculum may reveal the following :-

a. Externally there may be bruise and some swelling of anus, the anal orifice dilated, evidence of seminal discharge in and around the anal orifice with or without any bleeding from the locally injured tissues.

b. The anal muscles may be found irritable, inflamed and tender and the patient may complaint of difficulty on walking, defecation as well as during examination.

c. There may be multiple linear abrasions extending from any side of anal margin into the anus or between the anus and the tip of coccyx.

In case of great disproportion in size between the anal orifice and the male organ, there will be more injuries locally.

d. In case of application of sudden force with violence, on a tender subject, there may be triangular bruised tear at the posterior part of anus with its base situated externally, but with gradual but forcible over stretching, there may be a radial fissure of whole thickness of mucus membrane. Of the anus. The fissure will take several days to heal.

e. Similarly forcible introducing of a bigger size male organ through a narrow anus, may cause tearing of the sphincter ani with extra vacation of blood around.

f. Evidence of lubricating material, seminal fluid with pubic hair of accused in and around the anus or on the underclothing of the victim specially when he is a boy, will be strong presumptive proof of the crime.

On perusal of the aforesaid principles enunciated in the medical jurisprudence, it would be evident that in the instant case, the anal orifice of the victim was healthy, no fresh or recent injury was noticed, suggesting falsehood in the prosecution case.

After perusing the aforesaid ocular and medical evidence, the question arises whether in absence of injury on the victim as well as the appellant, who claimed to have subjected to penetrative sexual assault, can the conviction under Section 6 of the POCSO Act be upheld in the present appeal.

To appreciate this point, we may also refer to the

23 rd Edition of Modi's Medical Jurisprudence dealing with an offence under Section 377 IPC, which read as under:-

UNNATURAL SEXUAL OFFENCES

Section 377 of the Indian Penal Code 1860 treats offences relating to carnal intercourse against the order of nature with any man, woman or animal. It makes non-procreational sexual acts a criminal offence. Under this section, penetration is sufficient to constitute the carnal intercourse necessary to the offences which are punishable with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years and also with fine. These offences may be classified as sodomy, buccal coitus and bestiality.

At present, in India the gay movements are demanding the repeal or amendment to s 377 of IPC since they consider that it is mostly used to harass homosexuals. They claim that this section should be deleted since homosexuality is no more considered as an illness of mind by psychiatrists and moreover, in many countries marriages among homosexuals and lesbians are legally recognised. However, this is the only section that can be used against offenders in cases of sexual abuse of a boy child.

Sodomy

Sodomy is also called buggery and means an anal intercourse between man and man or between man and woman. It is termed pederasty, when the passive agent is a young boy (catamite). In order that the offence of sodomy be made punishable under s 377 of the Indian Penal Code 1860, it is necessary that penetration, however little, should be proved strictly. Similarly, an attempt to commit this offence is punishable under s 511 of IPC, only when an attempt was made to thrust the organ into the anus of the passive agent. A mere preparation for the operation should not necessarily be construed as an attempt." Consent by the passive party is no defence, nor is it a defence that the passive party was the wife of the accused. Marriage is taken as an implied consent by the wife for normal intercourse and not for anal intercourse. If the wife consented, both are guilty; if she did not, the husband alone is guilty. Under s 13 of the Hindu Marriage Act 1955, a wife can apply for annulment of marriage if the husband has been guilty of rape, sodomy or bestiality. In England, the Sexual Offences Act 1967 provides that it shall not be an offence for a man to commit buggery or gross indecency with another man, provided the act is carried out in private, between consenting parties, each of whom is above the age of 21 years.

Buccal coitus or Coitus per os (the sin of Gomorrah) falls within the provision of and is punishable under s 377 of IPC.

In a case in which one, Khanu, was found guilty, under s 377 of IPC, of having committed the sin of Gomorrah (Coitus per os) with a little child, JC Kennedy observed that 'there is no intercourse unless the visiting member is enveloped at least partially by the visited organisms, for intercourse connotes reciprocity. Looking at the question in this way, it would seem that the sin of Gonorrah is no less a carnal intercourse than the sin of sodomy.

It should be remembered that sudden accidental death from asphyxia may occur from aspiration of semen-ejaculate or impacting the penis in the lower part of the pharynx. In such a suspicious death, smears from the trachea should be examined for sperms and acid phosphatase.

Sodomy is sometimes practised between two men who alternately act as active and passive agents. In his study, Prof Bhooshana Rao has shown that, in India, there is a class of male prostitutes, commonly called 'eunuchs', whose main means of living is by passive paederasty." They dress like women, part and dress their hair in feminine fashion, wear ornaments, and adopt most tastes and habits of females. He further pointed out that among these sexual inverts there are two distinct groups-Hijrahs and Zenana. The former group is deprived of their genitalia mostly before puberty; while the latter have them intact. The two groups live separately and preserve a separate identity between themselves and the female prostitutes. A of 47 eunuchs from Lucknow were studied in detail by K B Kunwar et al. Most of them had a compulsive urge to homosexuality, but there were a few who were latent homosexuals, and some who indulged occasionally with an exploratory sense, or when they were deprived of contact with members of the opposite sex group.

According to Kinsey, 4 per cent of Americans are exclusively homosexuals. while Desmond Curran and Denis Parr found the figure to be 5 per cent in a series of private patients. A homosexual component exists in everybody. so in this sense, it is universal, but it varies quantitatively in different individuals and varies at different epochs in life. The condition is one of arrested development or a natural deviation, and beyond that, homosexuality is a disease. It exists among all callings and at all levels of society. A prison sentence may do more harm than good. Psychotherapy is useful in some cases.

In a few cases that come for trial before a court of law, the active agent was usually a grown-up male, and the passive agent a boy, and occasionally a girl or a woman.

Two cases of unnatural connection with a woman were brought to Modi by the police in 1932.

In one case, the husband had committed unnatural connection with his wife of 13 or 14 years of age. Her hymen was found intact, but there was a tear, 1/4" x 1/6", obliquely along the posterior part of the anus to the left of the middle line and external to the sphincter ani.

In the other case, a woman of about 16 to 18 years complained that her husband was having unnatural intercourse with her. On examination, no injury on or about the anus was found. The sphincter was quite normal in its tone; her hymen had old tears.

A case occurred in Ahmedabad, where a 25 year old man attempted to commit sodomy on a girl, about two years old."

Both active and passive agents are guilty of the offence in the eyes of the law, if the act has been committed with consent. However, according to the English law, if one of the parties is under 14 years of age, he is not held responsible for the offence. In the law of India, there is no such fixed limit. but ss 82 and 83 of IPC, which deal with age in relation to responsibility for offences in general, are applicable to this offence.

For the investigation of this offence, a medical examination of both the passive and active agents is necessary as in the case of rape. It must also be necessary to inquire if the active agent had obtained the consent of the passive agent for this purpose by means of physical force or fraud, or if the active agent, by reason of age or disease, was physically unfit to commit the offence. A grown-up passive agent may persuade a young boy to act as an active agent to practice the vice on him, but such instances are very rare indeed. Modi had seen only one case in which a passive agent of 45 to 50 years of age was prosecuted for having persuaded a 16-year-old boy to having an unnatural connection with him.

In cases of false accusations, Modi had often heard a story that the accused was sleeping in the same bed with the victim, and he committed the unnatural offence on the latter while he was asleep. It should be borne in mind that it is not possible for an adult male to accomplish the act on a boy during sleep without awaking him, or on another healthy male against his will.

Sudden accidental death of a passive agent of sodomy may occur during the act of sodomy. It is not unusual for the active agent to grasp in his hands, the neck of the passive agent.

Examination of the Passive Agent

Written consent for medical examination should be obtained and a short history taken, before commencing a medical examination, preferably in the knee elbow position. The following signs may be discovered if the boy (passive agent) is not accustomed to sodomy:

(i) Abrasions on the skin near the anus with pain in walking and on defaecation, as well as, during examination. These injuries are extensive and well defined in cases where there is a great disproportion in size between the anal orifice of the victim and the virile member of the accused. Hence, lesions will be most marked in children, while they may be almost absent in adults when there is no resistance to the anal coitus. These injuries, if slight, heal very rapidly in two or three days. In most of the cases brought before Modi, he had seen superficial abrasions, varying from 1/6" to 1" x 1/6" to 1/4", external to the sphincter ani. In some cases, there may be bruising of the parts round about the anus and the abrasions may extend into the anus beyond its sphincter.

(ii) Owing to the strong contraction of the sphincter ani, the penis rarely penetrates beyond an inch, and consequently, the laceration produced on the mucous membrane within the anus with more or less effusion of blood is usually triangular in nature, having its base at the anus and the sides extending vertically inwards into the rectum. Modi had found lacerations internal to the sphincter ani in several cases, but a typical triangular wound only in a few cases. These signs may not be present in cases where the active agent has used lubricants or/and has introduced his penis slowly and carefully without using force into the anus of the passive agent who is a consenting party.

(iii) Blood may be found around the anus, on the perineum or and also on the clothes.

(iv) Semen may be found in or at the anus, on the perineum, garments of the boy too young to have seminal emissions. Swabs from inside and around the anus must be taken and examined microscopically.

In his annual report for 1946, a case from Unao is mentioned, where a 25. year-old man committed sodomy on a six-year-old boy. Blood and semen were detected on the clothing of both, the accused, and the victim.

(v)Signs of a struggle, such as bruises, and scratches, on his person, if he is a grown-up boy, and if he is not a consenting party.

(vi) Finding loose foreign pubic hair on the garments of a boy in whom pubic hairs have not appeared.

(vii) Lubricant round about the anus or on garments or recovered by swabs from the rectum also constitutes strong evidence of the perpetration of the crime.

As in rape, a passive agent is sometimes murdered after the act of sodomy.

On 29 January 1911, a post-mortem examination was held by Modi on the body of a 12-year-old Hindu boy, residing at Tajganj in Agra, when it was found that the boy had a laceration in the anus, and death was due to the effects of irritant poisoning (arsenic). He was either poisoned after the sodomy; or, being mortified with shame, he committed suicide by taking the poison after the act.

Examination of Habitual Passive Agents

The signs usually met with in a passive agent habituated to the act of sodomy (confirmed sodomite) are as follows:

(i) The shaving of the anal hair, but not necessarily the pubic hair.

In a murder case that occurred in Lucknow on 20 December 1918, a motive for the murder was ascertained at the autopsy by noticing the shaving of the anal hair and the presence of pubic hair on the body of the victim, a sowar (lancer), about 19 years old, who was alleged to be a passive agent, and who was killed by his fellow sowar of the fifth cavalry.

(ii) A funnel-shaped depression of the buttocks towards the anus.

However, this may be absent in a strong, healthy person who is habituated to the act as a passive agent, while it may be natural in thin individuals or old women. However, in passive agents, there is a complete relaxation of the sphincter when lateral traction is applied on both the buttocks.

A Brahman, aged about 40, who, according to his own statement, had been a pathic for at least 20 years, had a typical Hunterian chancre, situated one inch in front of the anus, which he admitted to have contracted from one of his friends. The genitals were well formed and there was no deformation of the anal region, no infundibulum or loss of rugac, and the tone of the sphincter was normal.

(iii) The dilated and patulous condition of the anus with disappearance of its radial folds and the prolapse of the rectal mucosa as the sphincter is relaxed. In a dead body, the anal orifice dilates from the relaxation of the sphincter and the protrusion of the rectum occurs from the force of decomposition gases.

(iv) Cicatrices of old lacerations in the rectum near the anus.

(v) The presence of a gonorrhoeal discharge, chancre or condyloma. The active agent may be infected by the passive agent, who may already be afflicted with gonorrhoea or syphilis.

On the 8 August 1921, Modi examined a boy who was accused as a passive agent under s 377 of IPC. He had an abrasion in the right posterior aspect of the anus, the sphincter of which was easily dilatable. There was some purulent discharge which was found to be gonorrhoeal.

In July 1922, a Hindu Hijrah, about 45 years old, who had received a superficial cut along the left side of the head above the right temple, was examined. On inquiry, he admitted that a young man, whom he had allowed to stay with him for the night, inflicted the cut on his head. On examination, a condylomatous growth was found round about his anus.

Examination of the Active Agent

No conclusive signs are evident, unless the man is examined soon after the commission of the crime. In that case, there may be an abrasion on the prepuce, glans penis, or fraenum, and stains of faecal matter or lubricant may be found on the penis or on the loincloth or trousers. The peculiar odour of faecal matter persists for some time after the organ or the cloth is cleaned by wiping, unless washed thoroughly with water. The presence of blood and seminal stains is only corroborative evidence but not positive. There may be marks of violence on the body if the passive agent is a grown- up boy, and if the crime is perpetrated without his consent.

From the aforesaid text of Modi's Jurisprudence, the injury on the non-consensual victim of tender age is bound to be present, if he is medically examined shortly after the offence. Therefore, the reasoning of the learned Trial Court that it is not necessary, in cases, pertaining to Section 6 of the POCSO Act that injury need not be present even in penetrative sexual assault. It neither supported by any case law or with any medical jurisprudence. The various reasoning given by the learned Trial Court in support its judgment may be true with regard to an offence of rape under Section 375 IPC but not with regard to offence of sodomy that too penetrative sexual assault as defined under Section 3 of the POCSO Act in the manner as stated by the victim. Hence, such reasoning is not tenable in the facts and circumstances of the case.

It needs to be remembered that the victim in the instant case was 11 years old, whereas the appellant was of the age of 37 years at the time of the commission of the alleged offence and as per the MLC Ext. PW1/E, he was well built and had developed secondary sexual character, therefore, if the appellant had penetrative anal sex with the victim, who was of tender age of 11 years, then injuries were bound to be present on the anus area, especially, in view of the fact that the alleged incident took place at 4:00-5:00 p.m. and the MLC of the victim was prepared on the same day at 11:25 p.m and there was no question of injury being healed in such a short span of time. Moreover, the MLC of the victim also does not record any such injury nor was any injury found on the private parts of the appellant.

However, Shri J. S. Guleria, learned Deputy Advocate General, would argue that the stains of semens have been found by the RFSL in the underwear worn by the victim, therefore, the offence stands proved.

The argument though appears to be attractive at the first blush, but when examined in detail, the same cannot be sustained for the simple reason that there is no evidence whatsoever led by the prosecution to even remotely indicate that the clothes worn by the victim at the time of alleged incident were taken into possession and how those reached the RFSL is clearly a mystery.

Dr. PW1 Harjeet Pal only states about the clothes of the appellant being taken into possession and thereafter handed over to the police for chemical examination. The clothes of the child victim have not been produced in the Court at any stage of trial and, therefore, obviously not identified either by the victim, his mother Pema (PW9), Sonam Dorjee (PW11) and for that matter even the Investigating Officer and, obviously, in such circumstances, as observed above, it remains a mystery as to how these clothes found their way to the RFSL.

Even if it is assumed that there was semen found on the underwear of the victim, even then there is no further evidence led by the prosecution to connect the semen with the appellant. No DNA test or other test has been conducted by the prosecution to connect the semen being that of appellant.

(ii) Story regarding handing over Rs. 15/-each to the victim and his friend Lobsang to remain silent is highly questionable apart from being false.

As per the contents of the FIR, it was stated that the victim and his friend Lobsang were given Rs. 15/- each to ensure that they do not open their mouth and talk about the incident. This remains the prosecution story throughout. Even the victim in his statement as PW10 has stated that Rs. 30/-i.e. Rs.15/- each were given to him and his friend Lobsang and they asked not to disclose about the occurrence to anyone. He further claimed to have handed over Rs. 30/- to his mother. Strangely enough, when the mother of the victim PW9 Pema was examined in the Court, she though maintained that the appellant had handed over Rs. 30/- i.e. Rs. 15/- each to both of them i.e. victim and his friend Lobsang, but when she produced the same before the police, these were found to be three currency notes of Rs. 10/- each and this was so stated by all the witnesses including PW9, who stated “during investigation, Rs. 30/- (three currency notes of Rs.10/-each) were produced before the police, which were taken into possession vide memo Ext. PW8/A.”

Now, if the prosecution story was true, then, firstly, the victim would be in possession of only Rs. 15/- as has been maintained by the victim as well as his mother, then how he is in possession of Rs. 30/-. That apart, if Rs. 15/- each were given to both the victim and his friend, then they ought to be in possession of the currency notes or coins of the denomination of Rs. 5/- be it in the shape of Rs.5/-, Rs.1/- and Rs. 2/-, as the case may be, to account for the Rs. 5/-. This clearly casts not only suspicion but a serious doubt in the prosecution story.

iii. Appellant not identified by the victim before the Court.

It needs to be noticed that the specific case of the prosecution is that the father of the victim was working in the Indian Army posted at Ladakh and the appellant was also an Army personnel, and due to this reason both the families knew each other. This is so stated in the FIR and has also come in the opening statement of the victim mother (PW9). Meaning thereby, that the families knew each other, very well, however, when the appellant is shown to the victim in the Court, he specifically stated that “I cannot identify properly that the person who committed the penetrative unnatural sexual intercourse with me,”. Then the appellant was shown to the witness in the Court by taking him out from the screen enclosure and the victim was again examined and stated that “I cannot say with certainty that the accused shown to him today in the Court is the same person, who had committed unnatural sexual intercourse with me”.

The child victim further states that he came to know about the name of the appellant only when the police had checked the RC of the appellant. If the victim had been sodomised by way of penetrative unnatural sexual intercourse in a manner as stated by the victim, we find it extremely difficult to believe that the victim would have failed to identify the perpetrator given the fact that the child victim is fairly intelligent as is evident from his cross-examination where he states as under:-

“It is correct to suggest that I obey the commands of my parents and the Tibetan Govt. officials but I will obey only those commands which are correct and not the wrong commands.”

No doubt, as observed above, normally the statement of the victim is sufficient in such type of cases, even though not corroborated, but the facts in the instant case are otherwise.

iv. Non-examination of material witnesses

As observed above, it is the specific case of the prosecution, that the mother of the victim Pema (PW9) and the victim (PW10) alongwith his friend Lobsang were playing at Bhagsu Nalla Road, where, the appellant met them in Meetha Nalla, where he treated them with burger and chips. They further deposed that the appellant then took both the child victim as well as his friend Lobsang to his residence near Meetha Nalla and committed unnatural act with the child victim in the presence of Lobsang. However, the witness Lobsang has not been examined by the prosecution and from the statement of the Investigating Officer (PW15), it appears that the said witness had been deliberately and intentionally withheld by the prosecution without there being any explanation, which constrains this Court to draw an adverse inference and come to the conclusion that had this witness been examined, he would have not supported the case of the prosecution.

v. Age of the child victim.

In order to prove the age of the child victim, the prosecution had to lead cogent evidence that at the time of commission of offence, the child victim was below 18 years of age. In order to prove the age of child victim, the birth certificate, school certificate etc., as envisaged under both Juvenile Protection Act as well the Protection of Children against Sexual Protection Act, were required to be produced.

However, in the present case, the prosecution has placed on record admission form of the child victim by examining PW7 sonam Sichoe, which does not fulfill the requirement of the Act. (See: P. Yuvaprakash vs. State, JT 2023(7) SC 261).

Apart from this, the original record has also not been produced. Therefore, the Court has no hesitation in concluding that the prosecution has miserably failed to prove that the victim was child at the relevant time.

Unfortunately, the learned Special Judge has not at all considered all these vital aspects, which go to the root of the case.

In view of the aforesaid discussion, the appeal is allowed and the judgment of conviction and sentence, as recorded by the learned Special Judge, being not legally sustainable, is set aside. Accordingly, the appellant is ordered to be released immediately, if not required in any other case.

The Registry is directed to prepare release warrant of the appellant. In view of the provisions of Section 437A Cr.P.C., the appellant is directed to furnish personal bonds in the sum of Rs.50,000/- with one surety of the like amount to the satisfaction of the learned Registrar (Judicial) of this Court, which shall be effective for a period of six months with a stipulation that in an event of an SLP being filed against this judgment or on grant of the leave, the appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court.