Sikkim High Court
Bickey Pariyar Alias Darjee vs State Of Sikkim on 30 May, 2025
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THE HIGH COURT OF SIKKIM ; GANGTOK
(Criminal Appellate Jurisdiction)
30th May, 2025
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SINGLE BENCH: THE HON'BLE MR. JUSTICE BISWANATH SOMADDER, CHIEF JUSTICE
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CRL. A. No. 03/2024
Bickey Pariyar alias Darjee
Son of Robin Pariyar,
Resident of Mickkhola,
Namchi,
District: Namchi, Sikkim
Presently: Rongyek Jail ... Appellant
Versus
State of Sikkim ... Respondent
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Appearance: Ms. Puja Lamichaney, Advocate for the appellant.
Mr. Thinlay Dorjee Bhutia, Public Prosecutor and Mr.
Yadev Sharma, Additional Public Prosecutor for the
respondent.
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JUDGMENT
1. The instant Criminal Appeal arose in respect of a judgment and
order dated 29th November, 2023, rendered by the learned Special Judge
(POCSO Act, 2012), Gangtok, Sikkim in S.T. (POCSO) Case No. 51 of
2021, whereby the appellant, Bickey Pariyar alias Darjee, was convicted of
an offence committed under section 4(2) of the Protection of Children
from Sexual Offences Act, 2012 (for short, ―the POCSO Act, 2012‖) and
sentenced with simple imprisonment for a term of 20 years and to pay a
fine of Rs.2,000/- (Rupees two thousand only), with a default stipulation.
2. A Division Bench of this Court heard the instant criminal appeal,
being Crl. A. No. 03 of 2024. The Division Bench rendered two separate
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Bickey Pariyar alias Darjee vs. State of Sikkim
judgments on 05th March, 2025. One of the Hon'ble Judges (Meenakshi
Madan Rai, J.) acquitted the convict (being the appellant herein) and the
other Hon'ble Judge (Bhaskar Raj Pradhan, J.) upheld the judgment and
order of conviction rendered by the learned Special Judge (POCSO Act,
2012). This has resulted in a divergence of views and in such
circumstances, the matter was referred before this Bench for a final
decision on the issue.
3. Since the facts of the case have already been elaborately discussed
in the two judgments dated 05th March, 2025, only in order to avoid
prolixity, this Bench does not dwell upon the same while rendering its
opinion in the matter.
4. A careful reading of both judgments reveals the following:-
One of the Hon'ble Judges (Meenakshi Madan Rai, J.) has held that
the prosecution has failed to establish that the victim was a minor or that
the appellant had forcefully sexually assaulted her or coerced her into a
sexual relationship. The other Hon'ble Judge (Bhaskar Raj Pradhan, J.),
disagreed with the aforesaid findings and recorded his dissent in a
separate judgment, which followed the first judgment of acquittal
rendered in the matter.
5. Before analysing the two judgments and coming to a final decision
in the matter, this Court hastens to state at the very outset that the
principles of justice require not only procedural fairness but also a
substantive fidelity to the protective arms of criminal statutes, particularly
those designated to safeguard the vulnerable sections of society. The
POCSO Act, 2012, was enacted with an uncompromising object to
criminalise sexual activity with children -- irrespective of consent -- in
recognition of their vulnerability and incapacity to give lawful consent.
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Bickey Pariyar alias Darjee vs. State of Sikkim
6. In the light of the above principles, this Court will now proceed to
dwell upon and analyse the evidence with regard to the age of the victim
and whether the same was conclusively proved. The first and most critical
element in any POCSO case is the determination of the victim's age. The
prosecution, in the facts of the instant case had presented the following
evidence before the learned Trial Court: -
(i) Birth Certificate (Exhibit P-2)
(ii) Attested copy of School Admission Register (Exhibit
P-11)
(iii) Victim's own testimony (PW-1), corroborated by her
mother (PW-2).
7. In this regard, one of the Hon'ble Judges (Meenakshi Madan Rai, J.)
has come to a conclusion that it could not be said that the age of the
victim has been proved beyond reasonable doubt and on this aspect she
was constrained to differ with the findings of the learned Trial Court,
which, while relying on the birth certificate and the testimony of PW-2,
concluded that the victim was a minor. In this regard, the Hon'ble Judge
(Meenakshi Madan Rai, J.) has observed, inter alia, as follows: -
"11. In a case like the present one, it is absolutely imperative
that the Prosecution should prove the age of the victim beyond
reasonable doubt. Any grey areas or lacuna in such proof have
to be viewed by the Courts with the seriousness and gravity it
deserves. The Court has to be alive to the fact that an erroneous
consideration of date of birth of the alleged victim, sans
adequate proof, would render a person suspected of having
committed the offence, to long years of incarceration and most
of his productive life being laid to waste in front of his eyes.‖
8. That apart, the Hon'ble Judge has observed as follows with regard to
adverse inference that could be drawn against the prosecution while
referring to section 114 Illustration (g) of the Indian Evidence Act, 1872: -
―9. ........................................
(i) .............................
(ii) PW-2 identified Exbt P-2/PW-1 as the Birth Certificate of
the victim and her date of birth as 03-09-2006. PW-2 did not
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Bickey Pariyar alias Darjee vs. State of Sikkim
state that the Police seized Exbt P-2/PW-1 from her possession.
While PW-11 the I.O. stated that Exbt P-2/PW-1 was seized from
the victim's mother PW-2, under Seizure Memo Exbt P-19/PW-
11 and identified Exbt P-19(b) and Exbt P-19(c) as the
signatures of the witnesses to such seizure. The I.O. failed to
state the names of the witnesses to the Seizure Memo, however
a perusal of Exbt P-19/PW-11 would indicate the names of the
witnesses at Sl. No.6(i) and 6(ii). As the said seizure witnesses
were not furnished by the Prosecution to establish seizure of the
Birth Certificate from PW-2, this fact, considered in tandem with
the failure of PW-2 to mention such seizure from her possession,
raises suspicions about the authenticity of the seizure and
thereby the document Exbt P-2/PW-1. In the absence of the
seizure witnesses with no reasons furnished by the I.O. for their
absence, an adverse inference as provided under Section 114
Illustrations (g) of the Evidence Act can be drawn against the
Prosecution. There is therefore no proof of seizure of Exhibit
Exbt P-2/PW-1 which appears to be a document furnished in
isolation.‖
9. The other Hon'ble Judge of the Division Bench (Bhaskar Raj
Pradhan, J.), while giving a note of dissent with regard to whether the age
of the victim was conclusively proven, inter alia, observed that the birth
certificate (Exhibit P-2) and the school admission register maintained by
the Government Girls' Senior Secondary School were public documents
and therefore admissible in evidence without the examination of its
authors. The birth certificate (Exhibit P-2), providing the victim's date of
birth as registered by the Registrar and provided to the informant, was
proved by both the victim and her mother (PW-2). The birth certificate
(Exhibit P-2) issued by the Chief Registrar of Births and Deaths, Health
and Family Welfare Department, Government of Sikkim, is a certificate
issued under section 12/17 of the Registration of Births and Deaths Act,
1969. It bears the signature of the Issuing Authority, i. e., the Registrar
of Births and Deaths. Section 12 mandates that the Registrar shall, as
soon as the registration of a birth or death has been completed, give, free
of charge, to the person who gives information under section 8 or section
9 an extract of the prescribed particulars under his hand from the register
relating to such birth or death. Section 17 provides that any person could
cause a search to be made by the Registrar for any entry in a register of
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Bickey Pariyar alias Darjee vs. State of Sikkim
births and deaths and obtain an extract from such register relating to any
birth or death. Sub-section 2 of section 17 provides that all extracts given
under the section shall be certified by the Registrar or any other officer
authorised by the State Government to give such extracts as provided in
section 76 of the Indian Evidence Act, 1872, and shall be admissible in
evidence for the purpose of proving the birth or death to which the entry
relates. Chapter II of the Registration of Births and Deaths Act, 1969
relates to appointments of various Registrars. It is seen that the Chief
Registrar, the District Registrar and the Registrars are all appointed by the
State Government. As such, they are all public servants. Section 77 of the
Indian Evidence Act, 1872, provides that certified copies of public
documents may be produced in proof of the contents of the public
documents or parts of the public documents of which they purport to be
copies. Section 79 mandates that the Court ―shall presume‖ to be genuine
every document purporting to be a certificate, certified copy, or other
document, which is by law declared to be admissible as evidence of any
particular fact and which purports to be duly certified by any officer of the
State Government. Section 79 also provides that the Court ―shall‖ also
presume that any officer by whom any such document purports to be
signed or certified held, when he signed it, the official character which he
claims in such paper. The Hon'ble Judge went on to further observe in
paragraph 19 of his opinion that both the public documents were exhibited
by the prosecution without a protest from the defence. Thereafter, the
Hon'ble Judge has, in addition to taking note of section 79 of the Indian
Evidence Act, 1872, which mandates the Court to presume that public
documents are genuine, also relied on section 35 of the Indian Evidence
Act, 1872, and observed that the documents made ante litem motam can
be relied upon safely when such documents are admissible under section
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Bickey Pariyar alias Darjee vs. State of Sikkim
35 of the Indian Evidence Act, 1872. The Hon'ble Judge relied on the
decision rendered by the Hon'ble Supreme Court in Murugan vs State of
Tamil Nadu1, in this regard.
10, The following judgments of the Hon'ble Supreme Court were also
referred to and relied upon by the Hon'ble Judge in his dissenting
opinion:-
(i) In Harpal Singh and Another vs. State of Himachal
Pradesh2, the Hon'ble Supreme Court held:
―3. In the instant case the prosecution has proved the age of the
girl by overwhelming evidence. To begin with, there is the
evidence of Dr Jagdish Rai (PW 14) who is a radiologist and who,
after X-ray examination of the girl found that she was about 15
years of age. This is corroborated by Ext. PF, which is an entry in
the admission register maintained at the Government Girls' High
School, Samnoli (wherein the girl was a student) and which is
proved by the Headmaster. That entry states the date of birth of
the girl as October 13, 1957. There is yet another document viz.
Ext. PD, a certified copy of the relevant entry in the birth register
which shows that Saroj Kumari, who according to her evidence
was known as Ramesh during her childhood, was born to
Lajwanti, wife of Daulat Ram on November 11, 1957. Mr Hardy
submitted that in the absence of the examination of the
officer/Chowkidar concerned who recorded the entry, it was
inadmissible in evidence. We cannot agree with him for the
simple reason that the entry was made by the concerned official
in the discharge of his official duties, that it is therefore clearly
admissible under Section 35 of the Evidence Act and that it is not
necessary for the prosecution to examine its author. From
whatever angle we view the evidence, the conclusion is
inescapable that Saroj Kumari was below 16 years of age at the
time of the occurrence. Accordingly we agree with judgments of
the courts below and see no merit in this appeal which is
dismissed.‖
[emphasis supplied]
(ii) The Hon'ble Supreme Court in Sham Lal vs. Sanjeev
Kumar3, held:
―Question 3
21. One of the documents relied upon by the learned District
Judge in coming to the conclusion that the plaintiff is the son of
the deceased Balak Ram is Ext. P-2, the school leaving certificate.
The learned District Judge, while dealing with this document has
observed:
(2011) 6 SCC 111
(1981) 1 SCC 560
(2009) 12 SCC 454
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Bickey Pariyar alias Darjee vs. State of Sikkim
―On the other hand, there is a public document in the shape of
school leaving certificate, Ext. P-2 issued by Head Master,
Government Primary School, Jabal Jamrot recording Kuldip Chand
alias Sham Lal to be the son of Shri Balak Ram. In the said public
document as such Kuldip Chand alias Sham Lal was recorded as
son of Shri Balak Ram.‖
The findings of the learned District Judge holding Ext. P-2 to be a
public document and admitting the same without formal proof
cannot be questioned by the defendants in the present appeal
since no objection was raised by them when such document was
tendered and received in evidence.
22. It has been held in Dasondha Singh v. Zalam Singh [(1997) 1
PLR 735 (P&H)] that an objection as to the admissibility and
mode of proof of a document must be taken at the trial before it
is received in evidence and marked as an exhibit. Even otherwise
such a document falls within the ambit of Section 74, Evidence
Act, and is admissible per se without formal proof.
[emphasis supplied]
11. The Hon'ble Judge (Bhaskar Raj Pradhan, J.) in paragraph 25 of the
dissenting opinion has further observed as follows: -
―25. In the light of the clear exposition of the Supreme Court as
above, the mere denial by the defence in the cross-examination
of the victim and her mother (PW-2) that 03.09.2006 was not the
date of birth of the victim and that the birth certificate was not of
the victim would not disprove the ―legal presumption‖ or the
―compulsory presumption‖ under section 79 of the Indian
Evidence Act, 1872 as no evidence to disprove it was presented
by the defence. Both the victim and her mother (PW-2) had
denied the suggestion.‖
12. The judgment relied upon by the learned counsel for the appellant in
Madan Mohan Singh and others vs. Rajni Kant and another4 was
distinguished by the Hon'ble Judge (Bhaskar Raj Pradhan, J.) by observing
as follows:-
―26. In Madan Mohan Singh (supra), the facts were different
than the present case. In that case, as noted by the Supreme
Court the documents placed on record were school leaving
certificate, school registers, voters lists, and other documents
prepared by authorised persons in exercise of their official duty.
The Supreme Court noted the entries made in the electoral rolls
for the legislative assembly for three consecutive elections which
recorded different particulars of the same lady. The Supreme
Court found that as per the first document the lady should have
been born in 1941 as she was 34 years of age in 1975; as per
the second list she should have been born in 1943 as she was 36
years of age in 1979. The Supreme Court also noted that
immediately after one year in 1980 she became 41 years of age
and according to this document she should have been born in
(2010) 9 SCC 209
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Bickey Pariyar alias Darjee vs. State of Sikkim
1939. It was held by the Supreme Court that there is so much
inconsistencies that these documents cannot be read together
for the reason that in 1979 if the lady was 36 years of age, in
1980 she has been shown 41 years of age. So, after expiry of
one year her age has gone up by five years. Similar
inconsistencies were recorded with regard to other document as
well. The Supreme Court held that the aforesaid document
placed on record by the appellants and so heavily relied upon by
them if taken into consideration, they would simply lead to not
only improbabilities and impossibilities but absurdities also. It is
in this context that the Supreme Court held that therefore a
document may be admissible, but as to whether the entry
contained therein has any probative value ―may still be required
to be examined‖ in the facts and circumstances of a particular
case.
27. I am afraid that in the present case, the exhibited public
documents which establishes the proof of age of the victim has
no such improbabilities, impossibilities or absurdities for this
Court to venture to examine its probative value.‖
13. Thereafter, the Hon'ble Judge (Bhaskar Raj Pradhan, J.) has
proceeded to further observe as follows: -
―28. In Lall Bahadur Kami vs. The State of Sikkim 5 , we
had noted the conflicting evidence given by the prosecution
witnesses of the birth certificate and the fact that none of the
prosecution witnesses have been able to vouch safe for the truth
of the contents thereof. We had also noted that neither the
school admission register nor the register of births and deaths or
the Class X mark sheet were seized by the investigating officer.
It is in that fact situation that we sought to examine the
probative value of the birth certificate which was seized in
isolation.
29. In the present case, as held earlier, the victim's mother
who would be the most natural person to give evidence about
the birth of the victim, has categorically stated that the victim
was born on 03.09.2006 and identified the birth certificate
(exhibit P-2) as the birth certificate of the victim. The victim
herself stated that she was born on 03.09.2006, identified her
birth certificate (exhibit P-2), deposed that she was 16 at the
time of her deposition, i.e., 01.07.2022 and that she was
studying in Class VIII then.
30. In Mangala Mishra @ Dawa Tamang @ Jack vs. State
of Sikkim 6 , we noted the exposition of law by the Supreme
Court in Madan Mohan Singh (supra) distinguishing between
the admissibility of a document and its probative value while
noting the conflicting evidence led by the prosecution regarding
seizure of the birth certificate of the victim. We also noted that
the victim's mother who was examined as a prosecution witness
neither made any claim that the birth certificate was seized by
her nor did she mention about the victim's age. We noted that
there was conflicting evidence as to from whom the birth
SLR (2017) Sikkim 585
SLR (2018) Sikkim 1373
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Bickey Pariyar alias Darjee vs. State of Sikkim
certificate of the victim was seized from. After examining section
94 of the JJ Act of 2015, we held that in the first instance the
date of birth from the school or matriculation of the child is
unavailable then resort can be taken to a birth certificate given
by a corporation or a municipal authority. We held that the
provisions of section 94 of the JJ Act of 2015 have not been
complied with and hence the prosecution had failed to establish
the first requirement of the case under POCSO Act, viz., to
establish that the victim was below the age of 18 years as is the
requisite provided under section 2(d) of the POCSO Act.
31. The learned counsel for the appellant also emphasised on
a suggestion by the defence during the cross-examination of the
Principal (PW-10). It was suggested that the school of which she
was the principal and in which the school admission register was
maintained was not the first school attended by the victim. This
suggestion as is clear is as per the requirement of Rule
12(3)(a)(ii) of the Juvenile Justice (Care and Protection of
Children) Rules, 2007 (the 2007 Rules). However, this is not the
requirement of section 94 of JJ Act of 2015. JJ Act of 2015 has
replaced Rule 12 of the 2007 Rules. As such, the suggestion of
the defence has no consequence whatsoever in the facts of the
present case as the FIR (exhibit P-3) was lodged on 04.10.2021
when the JJ Act of 2015 had already been enforced. There is no
suggestion by the defence that the entry made in the school
admission register was untrue. As noted above, the attested
copy of the school admission register (exhibit P-11) contains the
details of the victim's birth certificate.‖
14. With regard to adverse inference that could be drawn against the
prosecution (as observed by Meenakshi Madan Rai, J.), the Hon'ble Judge
(Bhaskar Raj Pradhan, J.) -- while referring to section 114 Illustration (g)
of the Indian Evidence Act, 1872 -- observed, inter alia, as follows:-
―32. The learned counsel for the appellant submitted that the
seizure memo (exhibit P-19) was not proved by the two
witnesses who were named in it. Thus, even the seizure of the
birth certificate (exhibit P-2) is suspect.
33. The Investigating Officer deposed that the birth certificate
of the victim was seized from her mother vide seizure memo
(exhibit P-19) wherein exhibit P-19(a) is the signature of the
victim's mother. He also identified the signatures of the
witnesses in the seizure memo and the birth certificate (exhibit
P-2) seized through the seizure memo.
34. Nothing substantial was brought out during the cross-
examination of the Investigating Officer (PW-11) to demolish the
facts stated by him in his examination-in-chief regarding the
investigation and the seizure of the birth certificate (exhibit P-2).
35. The birth certificate (exhibit P-2) was seized by the
Investigating Officer (PW-11) from the victim's mother (PW-2)
through seizure memo (exhibit P-19) which was exhibited by
him as its maker - a police officer who is authorised to conduct
the search. It is noticed that the seizure memo is under section
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Bickey Pariyar alias Darjee vs. State of Sikkim
102 Cr.P.C. The said provision does not mandate the
requirement of any witnesses for the procedure. There is no
such inflexible proposition of law that there ought to be
independent witnesses associated with the seizure. Section 102
Cr.P.C does not require it. The police officer in the course of
investigation can seize any property if such property is
necessary to link with the commission of offence. However, the
seizure memo (exhibit P-19) records that the seizure was
effected in the presence of the two witnesses. The two witnesses
however were not cited as witnesses in the final report. They
were, therefore, not examined. The Investigating Officer (PW-
11) was examined and he proved the seizure memo (exhibit P-
19). No suggestion was given by the defence to the
Investigating Officer (PW-11) that the two witnesses named in
the seizure memo were withheld for any purpose. The seizure
memo (exhibit P-19) records the seizure of only the birth
certificate (exhibit P-2) of the victim from her mother (PW-2).
The birth certificate (exhibit P-2) had been produced in the
original and exhibited by the victim without any objection from
the defence. The victim's mother (PW-2) was also examined.
She did not depose that the birth certificate (exhibit P-2) was
seized from her although she identified the birth certificate
(exhibit P-2). The defence did not suggest that the birth
certificate of the victim (exhibit P-2) was not seized from her.
The identification of the signature [exhibit P-19(a)] of the
victim's mother in the seizure memo (exhibit P-19) by the
Investigating Officer (PW-11) was not objected to by the
defence. The seizure memo (exhibit P-19) shows the seizure of
the birth certificate (exhibit P-2) and nothing else. In the
circumstances, it would be extremely difficult for the Court to
disbelieve the Investigating Officer (PW-11) when he deposed
about the seizure of the birth certificate (exhibit P-2) and in
those circumstances, question the veracity of the birth certificate
(exhibit P-2) itself. Even if the prosecution failed to produce the
witnesses to the seizure, the birth certificate (exhibit P-2) which
has been proved by both the victim and her mother (PW-2) in
whose custody it ought to have been, cannot be wished away.
As such, the presumption under section 114(g) of the Indian
Evidence Act, 1872 would be of no benefit to the appellant
merely because the two seizure witnesses were not produced. As
held above, there was not a suggestion from the defence that
the birth certificate (exhibit P-2) was a false certificate.
36. The records of the learned Special Court reveal that the
prosecution had placed the original birth certificate of the victim
(exhibit P-2), the certificate (exhibit P-10) of the Principal (PW-
10) certifying the date of birth as recorded in the school
admission register and the attested copy of the school admission
register (exhibit P-11) which was compared with the original
school admission register produced and examined by the learned
Special Court and found to be true. There is no suggestion from
the defence that what is recorded therein is not the truth. The
date of birth recorded in all the three documents is 03.09.2006.
These documents corroborate what both the victim as well as
her mother (PW-2) deposed before the Court. Additionally, the
victim while deposing on 1st July, 2022, also stated that she was
16 years and studying in Class VIII. The victim exhibited her
birth certificate (exhibit P-2) and her mother (PW-2) identified it
before the Court. The only suggestion given by the defence to
the victim regarding the birth certificate (exhibit P-2) was that it
was not hers. The victim emphatically denied the suggestion.
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During the cross-examination of the victim's mother (PW-2), a
suggestion was made that the date of birth of the victim was not
03.01.2006 and that exhibit P-2 was not her birth certificate.
The victim's mother also emphatically denied the suggestions.
37. Thus, the seizure of the birth certificate (exhibit P-2) of
the victim cannot be doubted. Merely because the two witnesses
to the seizure memo (exhibit P-19) were not examined, the birth
certificate cannot be thrown out without consideration.
38. In Lakhi Ram Tambi7 (sic, Takbi), we have held that the
birth certificate is a public document admissible in evidence and
as no objection was raised when it was admitted in evidence nor
any issue raised on its probative value it cannot be questioned
by the defence at the stage of appeal. I am not inclined to
accept a contrary view to that of the Division Bench of this
Court.‖
15. In the opinion of this Bench, a hyper-technical stand to the effect
that two witnesses to the seizure memo (Exhibit P-19) were not
examined, cannot render a public document such as a birth certificate
issued by the Registrar of Births & Deaths, Health & Family Welfare
Department, Government of Sikkim, as not proved before the Trial Court.
The birth certificate is a public document and is admissible in evidence by
itself and in the facts of the instant case, no objection was raised when it
was admitted in evidence nor any issue raised regarding its probative
value. As such, this Bench is in agreement with the opinion expressed by
Bhaskar Raj Pradhan, J, that the same cannot be questioned by the
defence at the belated stage of appeal. The view of the Division Bench of
this Court in Lakhi Ram Takbi's case (supra), cannot be contradicted, as
rightly observed by the Hon'ble Judge (Bhaskar Raj Pradhan, J.).
16. Meenakshi Madan Rai, J. in her judgment, observed that the
physical relationship between the victim and the appellant was consensual
in nature and that she was in a romantic relationship with the appellant
and had gone out with him voluntarily. She referred to the testimony of
PW-5, according to whom PW-1 had voluntarily informed her that she had
SLR 2019 Sikkim 45
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Bickey Pariyar alias Darjee vs. State of Sikkim
sexual relation with the appellant in September, 2021, and again had
another such encounter. PW-1 had lied to her parents of having gone out
of town with PW-5, when, in fact, she was with the appellant, thereby
proving that all acts of the victim with the appellant were voluntary and
consensual. She further observed, notably, the victim is not the
complainant and it is not the prosecution's case that she was forced into
the act. The Hon'ble Judge has also observed in her judgment as follows:-
―13. PW-2 deposed in Court that on 02-10-2021 her daughter
suddenly fell ill and on her medical examination she came to
learn that the child was pregnant. She lodged the FIR Exbt P-
2/PW-1 on 04-10-2021. However, in the FIR she claims to have
learnt through th e Doctor on 28-09-2021 that PW-1
was pregnant. These anomalies in the dates have gone
unexplained by the Prosecution which is indeed indicative of
slipshod and callous investigation.
14. The evidence of PW-8 is touched upon briefly as the crux
of the Prosecution case pivots around the alleged pregnancy of
the victim, to examine whether there was proof of pregnancy as
alleged and as a tangential consideration whether the
Prosecution case is thereby worthy of reliance. PW-8 stated that
pregnancy was confirmed by a serum beta HCG test, but
admitted that urine test for pregnancy is not 100% correct.
Besides, it is noticed that the blood test report, medical report,
or the ultra sound report after the ultra sound of the victim was
conducted by the concerned doctor for the alleged pregnancy
were not filed before the Court and PW-8 and the I.O. PW-11
admitted as much. It is also worth noticing that PW-8 claims
that ultrasound on the victim was conducted on 30-09-2021 and
the last medical test done on 05-10-2021 but the ―case
summary‖ Exbt P-5/PW-8 is dated 29-11-2021, with no
explanation whatsoever for the delay in its preparation which
exceeded a month. PW-8 admitted that the victim was examined
by one Dr. Annet Thatal but neither the medical examination
report nor the examining Doctor were furnished by the
Prosecution to establish the allegation of pregnancy. It thus
emanates that in the absence of the aforementioned documents,
the Prosecution case lacks proof of the very crux of its case, i.e.,
the victim's pregnancy due to sexual assault. The Trial Court
considered Exbt P-5/PW-8 the Case Summary as proof of the
pregnancy and thereby sexual assault, notwithstanding the fact
that it was only a summary of what had transpired in the
hospital and not of the alleged pregnancy. This document cannot
fill the lacuna in the Prosecution case created by the non-
production of the actual documents as proof of the medical tests
of the victim.‖
17. In the opinion of this Bench, whether the pregnancy was
conclusively proved or not has no rational nexus/correlation with the
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Bickey Pariyar alias Darjee vs. State of Sikkim
sexual assault performed upon a minor in view of the clear and
unambiguous language of section 4(2) of the POCSO Act, 2012. A
penetrative sexual assault upon a minor may or may not result in
pregnancy and as such, the focus of the Court -- while examining a fact
situation whether offence under section 4(2) of the POCSO Act, 2012, is
attracted or not -- should be on "penetrative sexual assault" alone and
not whether any pregnancy results therefrom.
18. Further, once the age of the victim was proved (in this case, about
15 years), it becomes wholly immaterial and utterly inconsequential
whether the sexual act was consensual or not. So far as whether the
mandate of section 94 of the Juvenile Justice Act of 2015, was fulfilled or
not, this Bench is in complete agreement with the opinion expressed by
the Hon'ble Judge (Bhaskar Raj Pradhan, J.) in paragraph 43 of his
dissenting note, which reads as follows:-
―43. It is, therefore, clear that the mandate of section 94 of
the JJ Act of 2015 has been fulfilled by the prosecution by
producing the date of birth certificate from the school (exhibit P
10), the attested copy of the school admission register (exhibit P
11) as well as the birth certificate (exhibit P 2) issued by the
Registrar of Births and Death, Health and Family Welfare
Department, Government of Sikkim (exhibit P 2). Sub section 3
of section 94 provides that the age recorded by the committee
or the board to be the age of the person so brought before it
shall, for the purpose of this act, be deemed to be true age of
that person. If the Special Court conducting the trial of the
POCSO case is required to follow the JJ Act of 2015 as per the
dicta of the Supreme Court [see P. Yuvaprakash (supra)] then
the age recorded by the Special Court must be deemed to be the
true age of the victim unless it is shown by cogent evidence that
it is untrue. The Learned Special Court has categorically held
that the prosecution has been able to prove that the victim was
born on 03.09.2006.‖
19. In the facts and circumstances of the instant case, upon a detailed
analysis of the evidence considered by the learned Trial Court and for
reasons stated hereinbefore, this Bench is in agreement with the views
expressed by the Hon'ble Judge (Bhaskar Raj Pradhan, J.) that the
prosecution has been able to establish beyond reasonable doubt that the
2025:SHC:50
Bickey Pariyar alias Darjee vs. State of Sikkim
victim -- in fact -- was a minor at the time when the offence was
committed. Therefore, even if proved that the sexual acts between the
victim and the appellant were consensual in nature, the provisions of the
POCSO Act of 2012, do not permit any concession or relaxation. As rightly
held by the Hon'ble Judge (Bhaskar Raj Pradhan, J.), the consent of a
minor is no consent at all and as such, there is no scope for this Court to
extend any benefit of doubt to the convict.
20. The judgment and order of conviction rendered by the learned Trial
Court is therefore upheld, considering the facts and circumstances of the
instant case. However, in view of the contents of the two affidavits -- as
reflected in this Court's earlier order dated 28th May, 2025 -- it will be
open to the parties to take necessary steps in accordance with law,
notwithstanding the final decision rendered by this Court in the instant
matter.
(Biswanath Somadder)
Chief Justice
jk
