Crl. A. No. 26 of 2015. Case: Budha Singh Tamang Vs State of Sikkim. Sikkim High Court

Case NumberCrl. A. No. 26 of 2015
CounselFor Appellant: S.S. Hamal, Legal Aid Counsel and For Respondents: Karma Thinlay Namgyal, Additional Public Prosecutor, S.K. Chettri and Pollin Rai, Assistant Public Prosecutors
JudgesMeenakshi Madan Rai, J.
IssueCode of Criminal Procedure, 1973 (CrPC) - Sections 215, 216, 222(2); Indian Evidence Act, 1872 - Section 118; Indian Penal Code 1860, (IPC) - Sections 228A, 354, 354A, 354D, 354B, 370, 370A, 372, 373, 375, 376, 376(2), 376(2)(i), 376A, 376B, 376C, 376D, 509, 511; Protection of Children from Sexual Offences Act, 2012 - Sections 10, 33(7), 5(m), ...
Judgement DateApril 19, 2016
CourtSikkim High Court


Meenakshi Madan Rai, J.

  1. Being aggrieved by the Judgment and Order on Sentence of the Learned Special Judge, Protection of Children from Sexual Offences Act, 2012 (hereinafter 'POCSO'), South Sikkim at Namchi dated 31.08.2015, in Sessions Trial (POCSO) Case No. 1 of 2015, this Appeal assails both.

  2. A conspectus of the facts unfolded is that the Victim's mother on 05.12.2014, as per the narration of her Victim daughter reported at the Melli Police Station that the Appellant had on the same morning around 11:00 a.m. sexually assaulted her daughter when she was alone in her house. The Melli Police Station registered the case and took up investigation which revealed that the Appellant (aged about 28 years) was known to the Victim (aged about ten years). That, previously on 02.12.2014 when the Victim was alone in her house, the family having gone to attend to their chores, the Appellant came to the house of the Victim in the afternoon and finding her alone attempted to rape her. On the Victim protesting and biting his hand, he fled the place and the matter remained unreported on account of a threat held out to the Victim by the Accused. On 05.12.2014, the Appellant went to the house of the Victim and asked the Complainant for a hacksaw blade, who directed him to look for it inside her house. Once inside, finding the Victim alone, he grabbed her from behind and molested her. She somehow escaped and reported the matter to her mother, while the Appellant fled. The Victim was subjected to medical examination and on completion of investigation prima facie case was found against the Appellant under Section 376/354A/511 IPC read with Section 8 of the POCSO.

  3. The Learned Trial Court framed charges against the Appellant, viz; for the incident of 02.12.2014 under Section 5(m) of the POCSO punishable under Section 6 of the Act, Section 376(2) [sic 376(2)(i)] and Section 354B of the IPC, 1860 (hereinafter IPC). For the Offence committed on 05.12.2014, charge was framed under Section 9(m) of the POCSO, punishable under Section 10 of the Act and Section 354 of the IPC. The Prosecution examined seven witnesses. Based on the evidence, the Learned Trial Court convicted the Appellant and pronounced the Order on Sentence under Section 9(m)/10 of the POCSO Act, 2012 read with Section 354 of the IPC, 1860 for commission of offence on 02.12.2014 and 05.12.2014.

  4. It was argued by Learned Counsel for the Appellant that the Learned Trial Court has erroneously sentenced the Appellant for the offence under Section 9(m)/10 of the POCSO and under Section 354 of the IPC, committed on 02.12.2015 in its Order on Sentence dated 31.08.2015, when no charge was framed under the Sections supra for the offence on 02.12.2014, the charge for the said date being only under Section 5(m)/6 of the POCSO and Section 376(2) and Section 354B of the IPC. The second leg of his argument was that the Learned Trial Court failed to appreciate that there were glaring material contradictions in the deposition of the Prosecution witnesses which pivots only on preponderance of probability of commission of the offence under Section 9(m)/10 of the POCSO and Section 354 of the IPC. That, the impugned Judgment is based on the evidence of the alleged Victim (PW-2), who is not a trustworthy witness being a child witness. Fortifying this point, he placed reliance on A man Kumar & Another vs. State of Haryana (2004) 4 SCC 379, wherein it was, inter alia, held that the prosecutrix is not an accomplice after the crime of rape and that there is no rule of law that her testimony cannot be acted upon without corroboration. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for corroboration. It was next contended that the evidence of the Victim is not corroborated by medical evidence, hence the impugned Judgment...

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