Crl. A. No. 16 of 2015. Case: Niti Raj Subba Vs State of Sikkim. Sikkim High Court

Case NumberCrl. A. No. 16 of 2015
CounselFor Appellant: Nar Bahadur Khatiwada, Senior Advocate and Gita Bista, 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) - Section 164; Foreigners Act, 1946 - Section 14; Indian Evidence Act, 1872 - Sections 114(g), 118; Indian Penal Code 1860, (IPC) - Sections 376, 511; Protection of Children from Sexual Offences Act, 2012 - Sections 30, 33, 7, 8
Judgement DateApril 29, 2016
CourtSikkim High Court


Meenakshi Madan Rai, J.

  1. This Appeal challenges the Judgment dated 18.06.2015 and the Order on Sentence, dated 19.06.2015, passed by the Learned Special Judge, Protection of Children from Sexual Offences Act, 2012 (hereinafter POCSO) at Gangtok, in Sessions Trial Case No. 21 of 2014, convicting the Appellant under Section 8 of the POCSO and sentencing him to undergo simple imprisonment for three years and to pay a fine of Rs. 5000/- (Rupees Five thousand) only, with a default clause of imprisonment.

  2. The facts in a nutshell are that on 09.05.2014, the minor Victim (aged about 10 years at the relevant time), had gone for a walk with her younger brothers at around 6 a.m. to a nearby temple. The Appellant (aged about 65 years), who had recently shifted to the locality, lured the boys by giving them Rupees ten each, after which they ran home from the temple leaving the Victim, P.W.-1, behind. The Appellant, thereafter, forced the Victim to insert her hand into his trousers and fondle his genital. He gave her Rs. 50/- (Rupees fifty) only, after the act, warning her not to disclose the matter to anyone. Later, at her home she narrated the incident to her mother, P.W.-3, who brought it to the knowledge of her husband, the Victim's father, P.W.-2, resulting in the lodging of the Complaint, Exhibit-3 before the Sadar Police Station at Gangtok. Based on the FIR, investigation was launched and on completion thereof charge-sheet was submitted against the Appellant under Section 376/511 of the Indian Penal Code, 1860, read with Section 8 of the POCSO and Section 14 of the Foreigner's Act, 1946.

  3. The Learned Trial Court after hearing the parties framed charge against the Appellant under Section 7 of the POCSO punishable under Section 8 of the same Act. The Prosecution examined 15 witnesses and based on the evidence of the Prosecution witnesses, the impugned Judgment and Order on Sentence was pronounced.

  4. In Appeal, it has been argued that there are anomalies and inconsistencies in the statements of the witnesses with regard to the time that the children went for a walk inasmuch as P.W.-1, the Victim, stated that she went around 7 a.m., while according to her the father, P.W.-2, it was around 6 a.m., who has stated as much in Exhibit-3. The Victim has deposed that they went to the Shiva Mandir located near their house, where they met the Accused contrary to what her brother P.W.-4 has stated, viz., that the Appellant was standing on the road near the temple. That apart, in her Statement under Section 164 of the Cr.P.C. 1973, Exhibit-1, before the Learned Chief Judicial Magistrate, the Victim has stated that when they reached the temple, they saw the Accused Niti Raj Subba inside the temple. It was urged that the question of Rs. 50/- (Rupees fifty) only, being given by the Appellant to the Victim had not been stated in her Section 164 Cr.P.C. Statement recorded by the Learned Chief Judicial Magistrate. That, the Victim's father stated that, the Victim returned home with his other son, whereas the Victim herself stated that after the Accused offered Rs. 10/- (Rupees ten) only, to her brother, he refused the money and ran from the place while her younger brother followed him. It was also put forth that the mother of the Victim was not able to identify the currency notes seized by the police, while P.W.-12, the witness to the seizure of the currency notes, was unaware of the place from where the currency notes were seized. P.W.-14, witness to the seizure of the currency notes, does not support the Prosecution case, neither does the evidence of the I.O. being fraught with...

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