THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
DATED : 28th of April, 2022
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SINGLE BENCH: THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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CRL. A. No.10 of 2021
Appellant : Leela Raj Biswakarma alias
Ghattey Kaila
versus
Respondent : State of Sikkim
Appeal under Section 374 (2) of the
Code of Criminal Procedure, 1973
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Appearance
Mr. B.K. Gupta, Advocate (Legal Aid Counsel) for the Appellant.
Mr. Yadev Sharma, Additional Public Prosecutor with Mr. Sujan
Sunwar, Assistant Public Prosecutor for the State-Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The Appellant impugns the Judgment and Order on
Sentence, both dated 25.02.2021, passed by the Court of the
Learned Special Judge, Protection of Children from Sexual Offences
Act, 2012 (for short, the "POCSO Act"), West Sikkim at Gyalshing,
in S.T. (POCSO) Case No.01 of 2020, convicting the Appellant of
the offence under Section 9(m) punishable under Section 10 of the
POCSO Act and sentencing him to undergo Rigorous Imprisonment
for a term of six years and to pay fine of Rs.5,000/- (Rupees five
thousand) only, with default clause of Rigorous Imprisonment for
one year.
2. The Prosecution case is that on 13.11.2019, the
parents of the minor Victim (aged about six years) were at work,
leaving her and her infant brother (aged about two years) alone at
home. The same day, around 13:00 Hrs, the Appellant took the
Victim and her brother to his house. At around 13:30 Hrs when Crl. A. No.10 of 2021 2 Leela Raj Biswakarma @ Ghattey Kaila vs.
State of Sikkim
P.W.4, a co-villager, stopped by the Appellant's house to check on
the Appellant's wife's health, she allegedly saw the Victim with the
lower part of her body naked on the Appellant's bed, in his room.
The Appellant covered himself with a quilt. Shocked at the sight,
P.W.4 took the minor Victim and her infant brother to her own
house where the Victim revealed to her that the Appellant had
sexually assaulted her several times for over a month and given
her money ranging from Rs.50/- (Rupees fifty) only, to Rs.200/-
(Rupees two hundred) only, with threats not to divulge the incident
to anyone. Thereafter, P.W.4 informed the Victim's parents upon
which P.W.3 the Victim's mother, went to the Appellant's house
and brought him over to their house (house of P.W.3). P.W.6 and
P.W.13, both co-villagers, also arrived there on being informed of
the incident. At 15:30 Hrs of the same day i.e. 13.11.2019, P.W.2
the Victim's father, lodged the FIR, Exhibit 1, before the Officer-in-
Charge of the concerned Police Station, narrating the facts
reflected therein. On completion of investigation, Charge-Sheet
was submitted against the Appellant under Section 376 of the
Indian Penal Code, 1860, read with Section 6 of the POCSO Act.
3. The Learned Trial Court framed Charge against the
Appellant under Sections 5(m) and 5(l) of the POCSO Act. He
pleaded "not guilty" to the Charges, hence, trial commenced where
15 (fifteen) Prosecution Witnesses were examined, upon closure of
which, the Appellant was examined under Section 313 of the Code
of Criminal Procedure, 1973, to enable him to explain the
incriminating evidence against him. He claimed that the allegations
were false. On hearing the arguments of Learned Counsel for the Crl. A. No.10 of 2021 3 Leela Raj Biswakarma @ Ghattey Kaila vs.
State of Sikkim
parties and examining the evidence on record, the Learned Trial
Court passed the impugned Judgment and Order on Sentence.
4.(i) It is contended by Learned Counsel for the Appellant
that although Charge was framed under Sections 5(m) and 5(l) of
the POCSO Act, both punishable under Section 6 of the Act, on
consideration of the evidence on record, the Learned Trial Court
reached a finding that there was no proof of the act of penetrative
sexual assault on the Victim by the Appellant, to fulfill the
ingredients of the offence charged with. That, the Learned Trial
Court however found the testimony of the Victim reliable with
regard to the offence under Section 9 of the POCSO Act,
considering that the Victim had stated that the Appellant had
cleaned himself after the act, leading to the conclusion that the
Appellant had physical contact with the Victim when he touched her
from behind, and he did so with sexual intent and hence the
conviction of the Appellant under Section 9(m) of the POCSO Act
punishable under Section 10 of the same Act. It is contended that,
in fact, the medical evidence lends no succour whatsoever to the
Prosecution case and the Appellant consequently deserves an
acquittal in the absence of proof of any sexual assault.
(ii) In the alternative, Learned Counsel for the Appellant
urged that the punishment prescribed under Section 10 of the
POCSO Act is imprisonment of not less than five years but which
may extend to seven years with fine. The Learned Trial Court has
however sentenced the Appellant to six years imprisonment as
detailed supra. It is urged by Learned Counsel for the Appellant
that, in fact, the Appellant has no criminal antecedents and his
family members, earlier comprising of his parents, wife and three Crl. A. No.10 of 2021 4 Leela Raj Biswakarma @ Ghattey Kaila vs.
State of Sikkim
children who, except his wife, have passed away in the
interregnum, is suffering the consequences of his incarceration as
she is left to fend for herself sans an earning member. Learned
Counsel hence prays that the Sentence be reduced to the minimum
imprisonment prescribed under Section 10 of the POCSO Act i.e. of
five years. That, the default clause of imprisonment also be
reduced to one month from one year.
5. Learned Additional Public Prosecutor, while objecting to
the prayer, submitted that the Victim is only aged about six years
and has been traumatized both physically and mentally by the
Appellant. He thus prays the Appeal be dismissed.
6. I have given due consideration to the submissions of
Learned Counsel for the parties. The evidence and all documents
relied on by the parties and the impugned Judgment and Order on
Sentence have been meticulously perused.
7.(i) The Medical Report of the Victim, Exhibit 11, was
prepared by P.W.9., the Doctor. The "local examination" of the
Victim therein reads as follows;
"Local Examination - No redness/No discharge/No bleeding Labia majora & minora - N Hymen - intact, Fourchette - N Posterior commissure - N"
(ii) The Medical Report (supra) does not lend corroboration
to the allegation of penetrative sexual assault to establish the
offence under Sections 5(m) and 5(l) of the POCSO Act in view of
the fact that the offence was alleged to have been committed on a
child of six years by an adult male of forty-five years, which would
obviously have left definitive injuries on her genitals/private parts.
The evidence of P.W.4 is that she saw the Victim P.W.1 naked, it is
her categorical admission that she did not witness the Appellant Crl. A. No.10 of 2021 5 Leela Raj Biswakarma @ Ghattey Kaila vs.
State of Sikkim
sexually abusing P.W.1. P.W.15, the Investigating Officer ("I.O."),
admits that P.W.9 has given no opinion about penetrative sexual
assault on the minor Victim. It is also an admitted position that the
biological samples of the minor Victim being her vaginal swab and
of the Appellant being his blood sample, penile swab and pubic hair
sample, collected and handed over by the respective Medical
Officers, were forwarded to the Regional Forensic Science
Laboratory ("RFSL"), Saramsa. Admittedly, the Report was still
awaited when the evidence of the I.O. was recorded. No plea was
made by the Prosecution before the Learned Trial Court seeking to
file the FSL Report even at a later stage. The Learned Trial Court,
therefore, did not have the benefit of considering the RFSL Report
and correctly arrived at the finding that there was no penetrative
sexual assault committed on the Victim by the Appellant. However,
considering the evidence of the Victim P.W.1 and P.W.4, the
offence under Section 9(m) of the POCSO Act cannot be ruled out.
(iii) In light of the above evidence, facts and circumstances
as narrated by the Prosecution and bearing in mind Section 29 of
the POCSO Act, while at the same time, considering that the
Appellant has no criminal antecedents and his family, now
comprising only of his unemployed wife, his other family members
having since passed away, has to bear the consequences of his
incarceration as revealed supra, I am of the considered opinion
that this is a fit case where the prayer of the Appellant seeking
reduction of Sentence from six years to five years can be and is
accordingly permitted.
8. Consequently, the Sentence imposed by the Learned
Trial Court on the Appellant under Section 10 of the POCSO Act for Crl. A. No.10 of 2021 6 Leela Raj Biswakarma @ Ghattey Kaila vs.
State of Sikkim
committing the offence under Section 9(m) of the Act, is
accordingly reduced from six years to five years, which is the
minimum prescribed period of imprisonment. The default clause of
imprisonment of one year is reduced to one month, as prayed.
9. Appeal allowed to the extent above.
10. Crl. A. No.10 of 2021 stands disposed of accordingly.
11. No order as to costs.
12. Copy of this Judgment be forwarded to the Learned
Trial Court forthwith, for information and compliance, along with its
records.
( Meenakshi Madan Rai ) Judge 28.04.2022
ml Approved for reporting : Yes
