Citation : 2023 Latest Caselaw 28 Sikkim
Judgement Date : 23 May, 2023
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
Dated : 23rd May, 2023
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SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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Crl.A. No.11 of 2022
Appellant : State of Sikkim
versus
Respondent : Pintso Bhutia
Appeal under Section 378(1)(b) of the
Code of Criminal Procedure, 1973
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Appearance
Mr. Yadev Sharma, Additional Public Prosecutor with Mr. Sujan
Sunwar, Assistant Public Prosecutor for the State-Appellant.
Mr. Udai. P. Sharma, Advocate (Legal Aid Counsel) for the
Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The question that falls for determination before this
Court is; Whether the impugned Judgment, dated 27-04-2021, in
Sessions Trial (POCSO) Case No.10 of 2018, of the Learned Special
Judge (POCSO), East Sikkim, at Gangtok, acquitting the
Accused/Respondent can be said to be perverse, the word
"perverse" meaning "against the weight of evidence".
(i) The Prosecution narrative is that, Exhibit 1, the First
Information Report (for short, the "FIR"), was lodged by P.W.1, the
Ward Panchayat of the concerned area, before the concerned Police
Station, on 18-12-2017, on having received a verbal report from
P.W.4, the victim‟s mother, informing him that the Respondent had
attempted rape on the victim, P.W.3, aged about 10 years, on 17-
12-2017, around 05.30 a.m. at the house of P.W.13, her aunt.
Exhibit 1 was duly registered on the same date, under Section 8 of
State of Sikkim vs. Pintso Bhutia
the Protection of Children from Sexual Offences Act, 2012
(hereinafter, the "POCSO" Act), against the Respondent and
endorsed to P.W.15, the Investigating Officer (I.O.) for
investigation, on completion of which, Charge-Sheet was submitted
against the Respondent under Section 354A(1)(i) of the Indian
Penal Code, 1860 (hereinafter, the "IPC") read with Section 8 of
the POCSO Act. The Learned Trial Court on taking cognizance of
the offence, proceeded to frame charge against the Respondent
under Section 9(m) of the POCSO Act, punishable under Section 10
to which the Respondent entered a plea of "not guilty". Trial
commenced and 15 Prosecution witnesses including the I.O. of the
case deposed in order to prove the Prosecution case. On closure
of Prosecution evidence, the Court examined the Respondent under
Section 313 of the Code of Criminal Procedure, 1973 (hereinafter,
the "Cr.P.C."), enabling him to explain the incriminating
circumstances appearing in the evidence against him. He claimed
to have been falsely implicated in the case by the victim and her
mother and denied having sexually assaulted the victim. He chose
not to examine any witness. The verbal arguments of Learned
Counsel for the parties were then heard. On consideration of all
the evidence on record, the Learned Trial Court acquitted the
Respondent of the offence that he was Charged with.
2. Learned Additional Public Prosecutor for the State-
Appellant canvassed the contention that the victim at the relevant
time was 10 years old, while the Respondent was a married man,
aged about 39 years and had children. The date of offence was
17-12-2017 and the FIR came to be lodged immediately on 18-12-
2017, after the victim confided in her mother about the sexual
assault. That, the victim has unwaveringly stated in her evidence
State of Sikkim vs. Pintso Bhutia
before the Court and also in her Section 164 Cr.P.C. statement that
the Respondent had pinched her right breast and as it caused her
pain, she got up from the bed and went outside the room. On
returning to her home that day she narrated the incident to her
mother. She was then taken to the Police Station by her mother
and P.W.1. Thereafter, P.W.11, the Doctor examined the victim
and found pain and tenderness on the victim‟s right breast, which
was recorded by her in Exhibit 7. That, P.W.8, the Childline Team
Member, corroborated the evidence of the victim, to the effect that,
she was told by P.W.3 that the Respondent had inserted his hand
inside her clothing and pinched her breast, while she was watching
videos at the residence of her relative on the relevant morning.
She showed her the pinch mark on one of her breasts‟. That,
P.W.4, the victim‟s mother also corroborated the statement of
P.W.3 to the effect that, her daughter had narrated to her that the
Respondent had pinched her on her breast and had tried to insert
his hand on her private part. The mother had also removed the
jumper which the victim was wearing and found that one of her
breasts‟ was swollen, the evidence of the P.W.3, P.Ws 4, 8, 11 and
15, the I.O., are all corroborative. That, in Sunil Kumar Sambhudayal
Gupta (Dr.) and Others vs. State of Maharashtra
, it was held that the
evidence of the victim is sufficient to convict the Respondent.
Hence, the impugned Judgment of acquittal be set aside and the
Respondent be convicted of the offence under Section 9(m) of the
POCSO Act.
3. The arguments in contra raised by Learned Legal Aid
Counsel for the Respondent was that the victim and the
Respondent were not alone in the room when the act was allegedly
(2010) 13 SCC 657
State of Sikkim vs. Pintso Bhutia
committed. One Kumar Tamang who had spent the night in the
same house was not examined by the Prosecution, leading to an
adverse inference against the Prosecution case. That, there are
inconsistencies in the statement of the victim, P.W.3, P.Ws 1 and
4, as P.Ws 1 and 4, have stated that the Respondent attempted to
rape P.W.3, while P.W.3 herself has made no such allegation and
only speaks of the Respondent pinching her breast. There are
anomalies with regard to which breast was pinched since P.W.11,
the Doctor, has stated that there was pain and tenderness present
on the victim‟s right breast, which P.W.3 confirmed in her Section
164 Cr.P.C. statement, but contrarily in Court said it was the left
one. That, P.W.11, in her cross-examination deposed that, breast
tenderness could be due to hormonal changes and there were no
external injuries on the body of the victim. P.W.8 could not state
on which side the breast was swollen. P.W.13, the house owner
has stated that nothing untoward happened in her house that night
and neither did the Respondent commit any offence in her house.
Hence, the impugned Judgment warrants no interference and the
Appeal be dismissed.
4. The reasons put forth for acquittal of the Respondent
by the Learned Trial Court were as follows;
(i) The evidence of the victim did not inspire confidence,
was shaky and unworthy of any credence.
(ii) That, according to her statement in Court, on the
morning of the incident when she was in bed playing video games,
on her mother‟s cell phone, the Respondent suddenly came to her
bed and pinched her „left breast‟ with his hand with sexual intent.
(iii) That, in her statement under Section 164 Cr.P.C.
(Exhibit 10), she had accused the Respondent of suddenly coming
State of Sikkim vs. Pintso Bhutia
to her bed and pinching her „right breast‟, by putting his hand
under her jacket.
(iv) The Court also observed that, when P.W.3 informed her
mother, P.W.4, about the incident, she told her that apart from
pinching her breast, the Respondent had even tried to insert his
hand into her private part (vagina).
(v) That, in Exhibit 10, the victim made no mention of the
Respondent having attempted to commit rape on her or having
tried to insert his hand into her private part, but P.W.4 has stated
so in her evidence.
(vi) That, in the FIR lodged by P.W.1 at the instance of
P.W.3 and P.W.4, it was alleged that the Respondent had tried to
commit rape on P.W.3, contrary to the evidence of P.W.3.
(vii) That, from Exhibit 10, it was noticed that P.W.3 stated
that initially her aunt P.W.13 was also watching the video with her.
Suddenly, the Respondent came there and forced P.W.13 to leave
the room asking her to light the incense sticks. After much
persuasion, P.W.13 left the room.
(viii) In Court, P.W.3 had not whispered anything with
regard to P.W.13 being with her on the concerned morning and
about the Respondent having insisted upon P.W.13 to leave the
room.
(ix) P.W.13 gave no evidence of the Respondent
persuading her to leave the room neither was she declared „hostile‟
by the Prosecution.
(x) P.W.3 left her aunt‟s house after having tea. That, her
conduct and demeanour did not suggest that she was nervous or
affected by the alleged act of the Respondent which the Court
found highly unusual given her tender age.
State of Sikkim vs. Pintso Bhutia
(xi) That, all the facts and circumstances above, militate
against her bald claims.
(xii) That, P.W.13, her aunt and P.W.2, her aunt‟s husband,
respectively, did not note anything unusual on the concerned
morning.
(xiii) The other witnesses examined by the Prosecution,
according to the Learned Trial Court, had not deposed anything
worthy on the basis of which the Respondent could be held guilty of
any sexual assault, while at the same time recording that as per
P.W.8, the concerned Childline Team Member, who had counselled
the victim at the child‟s residence in connection with this case, had
found P.W.3 initially in a state of trauma.
(xiv) The Learned Trial Court noted that P.W.11, Dr. Deepika
Gurung had examined P.W.3 and found pain and tenderness on the
victim‟s „right breast‟, but disbelieved such evidence, as P.W.3 had
claimed before the Court that the Respondent had pinched her „left
breast‟.
(xv) The Court however noted and was thereby aware that,
P.W.3 during the counselling narrated to P.W.8 that the
Respondent had inserted his hand inside her clothes and pinched
her breast, on the concerned morning.
(xvi) The Court also observed that the statement of P.W.3,
Exhibit 10, varied with what she had stated before the Court and
opined that it would not matter whether formalities prescribed
under Section 145 of the Indian Evidence Act, 1872 (hereinafter,
the "Evidence Act") was complied with or not, as it was the duty of
the Court to go through the Section 164 Cr.P.C. statement.
State of Sikkim vs. Pintso Bhutia
(xvii) The Court opined that the material variations and
discrepancies go to the root of the case and affect the victim‟s
credibility. Reference was made to Sujoy Sen alias Sujoy Kr. Sen vs.
State of W.B , Jang Singh and Others vs. State of Rajasthan
and Yudhishtir
vs. State of Madhya Pradesh .
5. In consideration of the grounds put forth by the
Learned Trial Court for disbelieving the evidence of the Prosecutrix,
I have carefully perused the above Judgments relied on by the
Learned Trial Court. It is worth noticing that in Jang Singh (supra),
the Supreme Court found that the Prosecution case hinged solely
upon the oral testimony of P.W.1, who had lodged the FIR, stating
that two persons had died. In his evidence, however, he stated
that after lodging the FIR while he was at the Police Station, the
Sub-Inspector arrived at the Hospital and said one of the persons
was in Hospital, while one died. This circumstance was found to be
"unimaginable" by the Supreme Court, who found P.W.1 to be an
untruthful witness and acquitted the Appellant.
(i) In the case at hand, there is no such erroneous
statement made in the FIR, it is only the language employed.
Instead of P.W.1 reporting it as "sexual assault", he has used the
words "attempted rape", besides, he is a hearsay witness and did
not witness the incident. The offence, whether described as a
sexual assault or attempt to rape indicates a sexual offence
affecting the human body, that too perpetrated on a child. Only
the evidence furnished would indicate the exact nature of the
offence.
(2007) 6 SCC 32
(2001) 9 SCC 704
(1971) 3 SCC 436
State of Sikkim vs. Pintso Bhutia
(ii) In Sujoy Sen (supra), the murder of a girl was based on
circumstantial evidence. The Supreme Court discussed the
evidence and found that the FIR was lodged by the father of the
deceased, who had not stated that he saw the accused leaving the
house of the deceased, when the informant was entering. He
stated so, only subsequently, in his evidence before the Trial Court
that, the accused was leaving his house when he entered. The
Supreme Court held that the discrepancy in the FIR was a major
discrepancy, had the first informant seen the accused entering into
the house at the time of the incident, he would have definitely
mentioned the fact in the FIR. The Appellant was found entitled to
the benefit of the doubt.
(iii) In the case at hand, there is no such glaring
discrepancy in the FIR for the reason already discussed above. The
language used in the FIR ought not to divert the attention of the
Court from the evidence of the victim pertaining to the incident,
which has been cogent and consistent. Apart from which, the
Court is required to give purposive interpretation to the provisions
of the POCSO Act. The purpose of enacting the POCSO was to
have a self contained comprehensive legislation inter alia to
provide for protection of children from the offences of sexual
assault, sexual harassment and pornography, with due regard to
safeguarding the interest and well being of the child at every stage
of the judicial process. Disbelieving a minor‟s evidence despite its
consistency and cogency defeats the purpose of the legislation.
The Court cannot be pedantic in its appreciation of the victim‟s
evidence.
(iv) In Yudhishtir (supra), the Appellants were convicted by
the Trial Court under Section 302 read with Section 34 of the IPC,
State of Sikkim vs. Pintso Bhutia
which was confirmed by the High Court. The Supreme Court found
that the evidence given by P.Ws 1, 3, 4, 5, 6 and 7 clearly
establishes that the Appellants were seen running away from the
house by the back door. But that circumstance, the Court
observed, by itself without any direct evidence, regarding their
participation in the crime or any other circumstantial evidence,
which will conclusively lead to an inference of their participation,
will not justify a Court in finding them guilty of an offence of
murder.
(v) The circumstances of that case are not even relevant or
applicable to the facts and circumstances of the instant matter,
which is not based on circumstantial evidence.
(vi) That having been said, in the first instance it is relevant
to note that the Learned Trial Court reached a finding that the
victim was below 10 years of age at the time of the incident based
on Exhibit 5, her Birth Certificate. Her date of birth therein is
reflected as 01-11-2008. While examining the evidence on record,
P.W.1 reveals that on 18-12-2017, the victim‟s mother approached
him and verbally reported that the Accused had sexually assaulted
her victim daughter, aged 10 years. Cross-examination could not
decimate this statement. It is also worth noticing that to a
common man hailing from a village, the act of the Respondent
perhaps was equivalent to an „attempt to rape‟. While sifting the
chaff from the grain of the Prosecution evidence on record, it
categorically emanates that the Respondent had perpetrated the
act on the victim.
(vii) The victim deposed that, she was pinched on her
breast, this evidence is buttressed by the evidence of the Doctor,
P.W.11, who examined the victim on 18-12-2017, a day after the
State of Sikkim vs. Pintso Bhutia
incident and found pain and tenderness present on the victim‟s
right breast. The evidence of P.W.8, lends further credence to the
Prosecution case as it is her testimony that when she went to
counsel the victim on 20-12-2017, she found her in a state of
trauma. P.W.3 told her during counselling that the Respondent had
pinched her breast and showed her the pinch mark on one of the
breasts‟. The Learned Trial Court despite noting the evidence of
P.W.8 as seen from the impugned Judgment blindsided it. P.W.4
on removing the jacket of P.W.3 had also seen the swollen breast.
It is relevant to notice that the evidence of P.Ws 3, 8 and 11 have
not been decimated in cross-examination. No evidence was
furnished by the Respondent to indicate that the victim could have
conjured up the incident nor is it the Respondent‟s case that they
had acrimonious relations between the victim‟s family and that of
the Respondent, or for that matter any other reason, nor is it the
Respondent‟s case that the victim was tutored.
(viii) The Court observed that the victim did not appear to be
nervous or affected by the alleged act, thereby insinuating that
such an act did not take place. It is worth remarking that the
Court failed to appreciate the shock and consternation that the
child evidently experienced which left her dumbstruck for some
time and made her reticent about discussing it even with her
mother. That apart, the psychology of every person to a traumatic
incident differs and consequently so does the reaction. There is no
strait jacket formula for reactions to sexual assaults, more so,
when the victim is a bare 10 year old and unable to comprehend
the perverse act of an adult married man.
(ix) There cannot be mathematical precision in the evidence
furnished by different witnesses, articulated by each in their own
State of Sikkim vs. Pintso Bhutia
individual style and manner, but consistency pertaining to the crux
of the case indeed subsists in the evidence of the Prosecution
witnesses, and does not affect the core of the Prosecution case,
being that of sexual assault.
(x) In Sunil Kumar (supra), it was held that;
"30. While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons.(Vide State v. Saravanan [(2008) 17 SCC 587].)
...........................................................................................................
40. In exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. A finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (See Balak Ram v. State of U.P. [(1975) 3 SCC 219], Shailendra Pratap v. State of U.P. [(2003) 1 SCC 761], Budh Singh v. State of U.P. [(2006) 9 SCC 731], S. Rama Krishna v. S. Rami Reddy [(2008) 5 SCC 535], Arulvelu Singh v. State [(2009) 10 SCC 206], Ram Singh v. State of H.P. [(2010) 2 SCC 445] and Babu v. State of Kerala [(2010) 9 SCC 189].)." (emphasis supplied)
(xi) Hence, minor contradictions such as which breast was
pinched and whether the victim mentioned about P.W.13 being
persuaded to leave the room do not affect the core of the case.
6. Further, the Learned Trial Court instead of considering
that the victim had not been confronted with her Section 164
Cr.P.C. statement proceeded to observe as extracted below;
"18. ........................................... It may further be pointed out that though the Ld. Legal Aid Counsel for the accused did not specifically invite the attention of PW3 to the contents of her statement given before the Ld. Magistrate, she has nonetheless herself categorically deposed that she had given the said statement. Further, it has been identified by PW12. This Court cannot, therefore, overlook the same. It would not matter here whether the formalities prescribed under Section 145 of the Indian
State of Sikkim vs. Pintso Bhutia
Evidence Act, 1872 were observed or not. Rather, it becomes the duty of the Court to go through such statement. ............................................."
(i) It is now no more res integra that the contents of
Section 164 Cr.P.C. statement are not substantive evidence and if
the Court has to consider its contents then the author of the
contents, in other words P.W.3, ought to be confronted with it and
the provisions of Section 145 of the Evidence Act complied with. It
is also trite law that the contents of Section 164 Cr.P.C. statement
ought to have been identified by the victim and not P.W.12, the
Learned Judicial Magistrate, who recorded it and who obviously
cannot vouch for the veracity of the contents. The Learned Trial
Court was in error on this facet and failed to appreciate the legal
perspective and provision correctly. The Court cannot reach an
independent conclusion of the contents of any document without
proof of its contents, as concluded by the Learned Trial Court in its
observation regarding Section 145 of the Evidence Act and Section
164 Cr.P.C. extracted supra. It is an elementary requirement of
the Evidence Act that the contents need to be proved in terms of
the provisions of the Act. Beneficial reference in this context is
made to the observations in Malay Kumar Ganguly vs. Dr. Sukumar
Mukherjee and Others
wherein it was inter alia held that;
"37. It is true that ordinarily if a party to an action does not object to a document being taken on record and the same is marked as an exhibit, he is estopped and precluded from questioning the admissibility thereof at a later stage. It is, however, trite that a document becomes inadmissible in evidence unless the author thereof is examined; the contents thereof cannot be held to have been proved unless he is examined and subjected to cross- examination in a court of law. The document which is otherwise inadmissible cannot be taken in evidence only because no objection to the admissibility thereof was taken." (emphasis supplied)
(2009) 9 SCC 221
State of Sikkim vs. Pintso Bhutia
(ii) In R. Shaji vs. State of Kerala6 it was held as follows;
"26. Evidence given in a court under oath has great sanctity, which is why the same is called substantive evidence. Statements under Section 161 CrPC can be used only for the purpose of contradiction and statements under Section 164 CrPC can be used for both corroboration and contradiction. In a case where the Magistrate has to perform the duty of recording a statement under Section 164 CrPC, he is under an obligation to elicit all information which the witness wishes to disclose, as a witness who may be an illiterate, rustic villager may not be aware of the purpose for which he has been brought, and what he must disclose in his statements under Section 164 CrPC. Hence, the Magistrate should ask the witness explanatory questions and obtain all possible information in relation to the said case.
27. So far as the statement of witnesses recorded under Section 164 is concerned, the object is twofold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement; and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in court should be discarded, is not at all warranted. .......
28. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 CrPC can be relied upon for the purpose of corroborating statements made by witnesses in the committal court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 CrPC, such statements cannot be treated as substantive evidence." (emphasis supplied)
(iii) On the anvil of the above mentioned principles, Exhibit
10, the Section 164 Cr.P.C. statement of the victim is thus
disregarded by this Court as being an unproven document, for the
foregoing reasons.
7. Reliance by the Learned Trial Court on State of Rajasthan
vs. Kartar Singh
is erroneous while discussing Section 145 of the
Indian Evidence Act, for the reason that the witness therein Mst.
Kartar Kaur was confronted with the statement made before the
Committal Court. The Public Prosecutor had read to the witness the
whole of the witness‟s statement before the Committal Court and
asked her whether it was her statement. She admitted that it was
a true record of what she had stated before the Committal Court,
(2013) 14 SCC 266
AIR 1970 SC 1305
State of Sikkim vs. Pintso Bhutia
but it was a false statement, given under Police pressure. This was
not what transpired in the instant case as revealed by the
foregoing discussions.
(i) In Bhagwan Singh vs. The State of Punjab8 also referred to
by the Learned Trial Court, the Supreme Court while referring to
the evidence of one witness therein, Jagir Singh, who had been
examined as P.W.4 found on examination of his evidence that the
formalities prescribed by Section 145 of the Evidence Act were
complied with. His cross-examination shows that every
circumstance intended to be used as contradiction was put to him
point by point and passage by passage. The Supreme Court
observed that immediately after the witness had been questioned
about each separate fact point by point, the whole statement was
read out to him and he admitted that he had made it in the
Committing Court. Accordingly, the procedure adopted there was
in substantial compliance of Section 145 of the Evidence Act. The
Court clarified that all that is required is that the witness be treated
fairly and be afforded a reasonable opportunity of explaining the
contradictions after his attention has been drawn to them in fair
and reasonable manner. The Court was satisfied that this was
done in the said case. It is no one‟s case that P.W.3 herein was
confronted with the contents of Exhibit 10 for contradiction or
corroboration.
8. Besides, it is evident that the victim is a mere 10 year
old child at the time of offence, her level of articulation and
understanding of the act perpetrated on her has to be taken into
consideration. The Learned Trial Court failed to consider that the
evidence in Court was recorded six months after the statement of
AIR 1952 SC 214
State of Sikkim vs. Pintso Bhutia
the victim Exhibit 10 was recorded, which in any event as
discussed supra bore no evidentiary value. The Learned Trial Court
was also of the view that P.Ws 2 and 13 did not witness anything
untoward, despite evidence pointing with clarity to the fact that
both were not in the room when the incident took place. The
Learned Trial Court failed to appreciate that the victim nowhere
stated that the Appellant perpetrated other acts of sexual assault,
besides the act referred to by her, as she was the only witness to
the assault perpetrated on her. Besides, she was not even
confronted with the contents of Exhibit 1 to enable her to affirm or
deny the words used therein. The victim cannot be foisted with the
responsibility of exacerbation of the act of the Respondent as
narrated to P.W.1, by her perhaps well intentioned mother, P.W.4.
9. The observation of the Learned Trial Court that other
witnesses had not given evidence to enable conviction of the
Respondent is superfluous as there were no eye witnesses to the
incident. It is settled law that if the evidence of the witness is
cogent, consistent and unwavering she qualifies as a sterling
witness, upon whose evidence conviction of the perpetrator can be
based. I am of the considered opinion that the witness P.W.3 is
indeed a sterling witness.
10. In light of the aforementioned circumstances and the
detailed discussions, the irresistible conclusion would be that the
Respondent had sexually assaulted the minor victim.
11. The impugned Judgment of the Learned Trial Court is
set aside being perverse/against the weight of evidence.
12. The Respondent is convicted under Section 9(m) of the
POCSO Act punishable under Section 10.
State of Sikkim vs. Pintso Bhutia
13. Let the Respondent surrender before this Court by
02.00 p.m. today, for hearing on Sentence.
( Meenakshi Madan Rai ) Judge 23-05-2023
Approved for reporting : Yes
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