Sikkim High Court
State Of Sikkim vs Prem Bahadur Biswakarma on 28 October, 2024
Author: Meenakshi Madan Rai
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
Dated : 28th October, 2024
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DIVISION BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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Crl.A. No.38 of 2023
Appellant : State of Sikkim
versus
Respondent : Prem Bahadur Biswakarma
Appeal under Section 378(1)(b) of the
Code of Criminal Procedure, 1973
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Appearance
Mr. Yadev Sharma, Additional Public Prosecutor for the State-
Appellant.
Mr. Bhusan Nepal, Advocate (Amicus Curiae) for the Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The Respondent was acquitted of the charges framed
against him under Section 451 of the Indian Penal Code, 1860
(hereinafter, the "IPC"); Section 5(m) punishable under Section 6
of the Protection of Children from Sexual Offences Act, 2012
(hereinafter, the "POCSO Act") read with Section 511 of the IPC, as
also under Section 7 punishable under Section 8 of the POCSO Act,
vide the impugned Judgment, dated 27-04-2021, in Sessions Trial
(POCSO) Case No.26 of 2018 (State of Sikkim vs. Prem Bahadur
Biswakarma), by the Court of the Learned Special Judge (POCSO),
East Sikkim, at Gangtok. Aggrieved, the State-Appellant has
assailed the Judgment.
(i) The Prosecution case commenced with the lodging of
the FIR Ext 1, by PW-2 the Principal of the School, where PW-1 the
victim was a student. It was reported therein that PW-2 learnt
through two of her teachers PW-3 and PW-5 that, PW-1 aged about
eleven years, who was living in the house of PW-4 and PW-7 and
attending school, was "physically abused" by the Respondent a
worker in the house of the paternal uncle of PW-4. The victim had
confided in her teachers that the incident had occurred during the
month of May, 2018.
(ii) Ext 1 was registered before the concerned Police
Station, on the same date, against the Respondent, under Section
354 of the IPC read with Section 8 of the POCSO Act. Investigation
into the matter was taken up by PW-13, who submitted Charge-
Sheet against the Respondent under Section 354 of the IPC and
Section 8 of the POCSO Act.
(iii) The Learned Trial Court on 12-10-2018 framed Charge
against the Respondent under Sections 7/8 of the POCSO Act;
Section 5(m) punishable under Section 10 of the POCSO Act [(sic.)
an offence under Section 5 and any of its subsections is punishable
under Section 6 of the POCSO Act and not Section 10 of the POCSO
Act], read with Section 511 of the IPC and Section 451 of the IPC.
The Respondent took the plea of "not guilty" to the charges and
claimed trial. Thirteen witnesses were examined by the
Prosecution. The Respondent was then examined under Section
313 of the Code of Criminal Procedure, 1973 (hereinafter, the
"Cr.P.C."), affording him an opportunity of explaining the
incriminating evidence appearing against him. On analysing the
entire evidence on record the Learned Trial Court acquitted the
Respondent of all charges by concluding that the evidence of PW-1
did not inspire any confidence. That, there were material
improvements in her claims against the Respondent while deposing
before the Court. That, the discrepancies and improvements go to
the root of the case and affect her credibility. That although, the
Counsel for the Respondent did not specifically invite the attention
of the victim to her statement given before the Magistrate (Section
164 Cr.P.C. statement), she nonetheless categorically deposed that
she had given the statement which could therefore not be
overlooked by the Court. The Court also observed discrepancies in
her statement under Section 164 of the Cr.P.C. and before the
Court. It was observed that the medical evidence did not support
the Prosecution case neither did the other Prosecution witnesses
fortify the Prosecution case. The Learned Court discussed the
evidence of the Prosecution witnesses and thereafter on finding no
evidence against the Respondent acquitted him of all charges.
2. It is contended by Learned Additional Public Prosecutor
that the victim in her testimony has detailed the commission of the
offence. That, lack of injuries on the genital, anal area and person
of the victim was due to the fact that the assault occurred in the
month of May, 2018, but was belatedly reported only on June 5,
2018. The Section 164 Cr.P.C. statement of the victim recorded
two days after the lodging of Ext 1 reveals that she had been
subjected to sexual assault by the Respondent. Her evidence
before the Court is cogent and consistent with regard to the
incident. PWs 3 and 5 who she narrated the incident to have
supported her evidence. PW-4 has also clearly stated that the
Respondent had subjected her to sexual assault. Hence, the
Learned Trial Court ought not to have acquitted the Respondent
when such a heinous crime had been committed by a twenty-seven
year old man on a child of eleven years.
3. Per contra, Learned Counsel for the Respondent
contended that the acquittal was the result of the victim's evidence
being incoherent, vacillating and deserved no consideration.
Reliance was placed on the decisions of this Court Kishore Gurung
vs. State of Sikkim and Lhendup Lepcha vs. State of Sikkim2 to
buttress his submissions. That, the impugned Judgment thereby
warranted no interference.
4. Having heard Learned Counsel for the parties it is to be
seen whether the Learned Trial Court was in error in having
acquitted the Respondent of the offences charged with.
(i) PW-1 was the victim of the offence who the Trial Court
found competent to testify after putting some questions to her, to
which she is said to have given rational answers. She identified
the Respondent as a domestic help in the adjacent house of one of
the neighbours' of PW-4 (her employer) where she was residing.
The Respondent according to PW-1 frequented the house of PW-4.
She did not recollect either the date, month or year of the incident
but during her stay in the house of PW-4 the Respondent used to
come to the house, remove her trousers, lay her on the bed,
remove his trousers and insert his private part into her anus. That,
it was painful when she used to pass stool. She thought of
complaining to PW-4 but refrained from doing so as the
Respondent had warned her not to disclose the incident to anyone.
That, the Respondent had committed such acts on her on a number
of occasions of which she later complained to her school teachers.
She was called to the Police Station and interviewed by the Police
and her statement recorded. She was then forwarded to the
2023 SCC OnLine Sikk 28
2022 SCC OnLine Sikk 57
Hospital, at Gangtok, where she was examined by the doctor. She
also made a statement relating to the case before a lady Magistrate
at Gangtok and affixed her thumb impression on the document.
She was taken to the jail for identification of the Respondent whom
she identified from the line of other inmates. Under cross-
examination however she admitted that whatever she had stated
before the Magistrate was "not true and correct". That, prior to the
incident she along with her friend used to play games on the
mobile phones of the Respondent. That, the Respondent had
sexually assaulted her in the presence of her friend.
(ii) The victim as evident did not disclose the number of
occasions when such incidents took place nor did she recall the
date and month of the incident despite her evidence having been
recorded within six months of the alleged date of incident. It is a
well settled principle that the corroboration of the testimony of a
child witness is not necessary, it is merely a measure of caution
and prudence as a child witness could be susceptible to tutoring.
The Court is thus to carefully scrutinize the evidence of the child
witness and assess whether there is a possibility of an untruth
being stated.
(iii) In tandem with the evidence of PW-1, it would be
essential to examine the evidence of PWs 3 and 5 who were
allegedly told of the incident by the victim. PW-3 sometime in the
month of June, 2018, being the class teacher of the victim's class
allowed PW-1 to go to the Primary Health Sub-Centre (PHSC) for
medical check-up as she complained of stomach ache. After she
returned PW-3 with PW-5 enquired from PW-1 as to what was
happening to her. She disclosed that one individual who resided in
the neighbourhood of her residence was "sexually harassing and
abusing her". She also stated that she had been sexually harassed
by another older man in the past. Under cross-examination it
came to be extracted from the witness that the medical
prescription of the victim was checked by one of the school staff
after the victim returned and on checking it she did not find any
complaint of sexual molestation etc.
(iv) PW-5 was the person who had perused the prescription
after PW-1 returned from her visit to the PHSC. Her evidence
reveals that the victim had sought leave to go to the hospital as
she was reportedly having severe itching and burning sensation in
her private part. PW-5 advised her to take leave from PW-3 her
class teacher. PW-5 being suspicious about her ailment asked her
as to what exactly had happened to her, to which PW-1 told her
that on earlier occasions her grandfather had committed
penetrative sexual assault on her and molested her younger
brother. Her uncle had also molested her. She added that,
"...........Lately, the male domestic help of her neighbour had also
tried to pull her by her hand and tried to take her to his
room.......". The cross-examination of PW-5 elicited the
information that during enquiry from the victim she did not state
that the said domestic help had touched her private parts.
(v) PW-4 is the constable in whose house the victim was
living. According to her the Respondent was working as a domestic
help in the house of her paternal uncle. PW-4 came to learn
through the medical officer of the concerned PHSC that the victim
had been sexually abused earlier by another man as reportedly
narrated by the victim to the doctor/medical officer during her
medical check-up. Later, when she enquired from the victim, she
told PW-4 that the Respondent had touched her body from behind
while he had come to their house as she had his Mobile. In cross-
examination, PW-4 admitted that when she enquired from the
victim, the victim told her that the Respondent touched her on her
shoulder from behind.
(vi) PW-2 was narrated the said facts of the case by PWs 3
and 5 her teachers, upon which she lodged Ext 1 the FIR. She
admitted that Ext 1 was lodged on the basis of information
received from the two teachers.
(vii) PWs 6 and 7 were witnesses to the seizure of the birth
certificate. Although PW-6 was declared hostile however under
cross-examination it was admitted by her that the police personnel
came to the house of PW-4 on 22-07-2018 and seized the birth
certificate of the victim dated 24-04-2008. PW-7 deposed that he
was a witness to the seizure of Exhibit 6 the birth certificate of the
victim.
(viii) It appears from the evidence recorded that there was
no serious contest about the age of the victim nor was any
argument raised before this Court. Trial Court on the aspect of the
age has merely recorded as follows;
"22. .................................. Be that as it may, the
evidence of PW7 & PW4 would make it clear that the
birth certificate of PW1 was seized in the
matter................."
There were no further discussions on the age of the victim
apart from the above sentences. Although Exhibit 6 the birth
certificate of the victim, appears to have been seized by the
Prosecution the contents thereof have remained unproved by any
evidence. The document reflects her date of birth as 29-02-2008.
PW-4 merely stated that as per the birth certificate of the victim
Exhibit 6, the victim's date of birth was recorded as 29-02-2008.
PW-7 admitted that he had no personal knowledge about the
present case except the seizure of the birth certificate of the
victim. The victim claims to be eleven years old but the Court has
not recorded any finding about the physical appearance of the
victim in terms of the principles mentioned in Section 94(1) of the
Juvenile Justice (Care and Protection of Children) Act, 2015.
Nonetheless, the age not being contested by either party it stands
to reason that it is accepted that the date of birth in Exhibit 6 was
correctly recorded.
(ix) PW-9 was the doctor who examined the victim on 05-
06-2018 at around 10.00 p.m. and prepared Ext 9 the medical
report of the victim. She found no fresh injuries on the victim at
the time of her examination. Ext 9 the document prepared by her
reveals as follows;
".................................................................................
Brief History states that she was molested in May 2018 by
one Prem Biswakarma at Mencho East Sikkim on
2nd.5.2018 at 2 pm.
On Examination Conscious, oriented Cooperative vitally
stable.
Head neck back abdo chest limbs showed no signs of old or
fresh injuries.
Local examination :- Mous.(sic.) perineum labial folds,
urethra no injury no tenderness no bleeding Anal site ─ no
injury.
No bleeding, Hymen intact. Vaginal wash taken as
requested by police. Undergarments handed over to police
blood sample taken handed over to police.
Conclusion:- 11yrs old girl with no sign of recent forceful
sexual assault.
................................................................................."
(x) Having meticulously examined the evidence of the
witness, it is necessary to remark here that the victim claims to
have been sexually assaulted several times by the Respondent
while in her evidence she has detailed only one incident which
stands supported by her narration to PW-9 as recorded in Ext 9.
The history recorded in Ext 9 is that she was molested in May,
2018. The victim while narrating the history to the doctor, did not
state that she was sexually molested several times by the
Respondent. The victim made no mention of having taken
permission from school and her class teacher PW-3 to have herself
examined at the PHSC. PW-3 has stated that she allowed the
victim out of the class for medical examination as she complained
of stomach pain. Contrarily the evidence of PW-5 reveals that PW-
1 complained of severe itching and burning sensation in her private
parts, these disparate statements give rise to doubts about what
ailment PW-1 suffered from or whether she was actually ailing at
all. PW-9 found no recent forceful sexual assault on PW-1. It is
worth noticing that although she complained to PW-3 of being
sexually harassed and abused by the Respondent, no details of the
sexual harassment or abuse were given. Her claims that her friend
was present during the sexual assault lacked evidence and no such
friend was examined to lend credence to her claims. The victim
also makes no mention of the kind of sexual assault that was
allegedly perpetrated on her by the Respondent although to PW-5
she has clearly stated that her grandfather had sexually assaulted
her. The Learned Trial Court took into consideration the Section
164 Cr.P.C. statement of the victim noting that there were material
discrepancies in her statement with that recorded in Court. We are
unable to agree with this reason put forth by the Learned Trial
Court for considering the document. The document was neither
identified by the victim nor by the Magistrate who recorded the
evidence. The Magistrate was also not examined as a Prosecution
witness although she was listed as a witness and the Court vide it
Orders dated 12-09-2019 and 17-09-2019 had recorded that the
Judicial Officer was posted to some other district. Thereafter, the
other orders are bereft of the fate of the witness, revealing a
lackadaisical attitude on the part of both the Court and the
Prosecution. The Court is required to be vigilant in such matters as
also the Prosecution, whose witness has gone unexamined sans
any submissions seeking to tender her as a witness.
(xi) PW-1 stated to PW-4 that the Respondent merely
touched her on her shoulder from behind and took back his mobile
phone from her. A touch on her shoulder in our considered view
does not tantamount to sexual assault nor does it indicate sexual
intent. PW-1 also qualified her statement of such touch by adding
that, the Respondent took back his mobile phone. Secondly, we
are of the considered view that it would be travesty of justice to
rely on such vacillating evidence of PW-1 to various witnesses,
augmented by the fact that the medical evidence reveals that PW-1
was devoid of any injuries in her genital or anal region. In such
circumstances no error arises in the acquittal of the Respondent by
the Learned Trial Court.
5. Before concluding, it may be pointed out that the Trial
Court had framed charge under Section 5(m) punishable under
Section 6 of the POCSO Act read with Section 511 of the IPC.
Section 511 of the IPC deals with punishment for attempting to
commit offence punishable with imprisonment for life or other
imprisonment, however it is clarified here that for an attempt to
commit an offence under the POCSO Act the relevant Section under
the POCSO Act is Section 18 which reads as follows;
"18. Punishment for attempt to commit an
offence.--Whoever attempts to commit any offence
punishable under this Act or to cause such an offence to be
committed, and in such attempt, does any act towards the
commission of the offence, shall be punished with
imprisonment of any description provided for the offence,
for a term which may extend to one-half of the
imprisonment for life or, as the case may be, one-half of
the longest term of imprisonment provided for that offence
or with fine or with both."
Hence, for an attempt to commit an offence under any
provision of the POCSO Act Section 18 of the said Act is the correct
section to be invoked and not Section 511 of the IPC.
6. In view of the foregoing discussions, we find no reason
to interfere with the impugned Judgment. Appeal is dismissed.
7. Copy of this Judgment be forwarded to the Learned
Trial Court for information along with its records.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
28-10-2024 28-10-2024
Approved for reporting : Yes
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