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2019 DIGILAW 38 (SIK)

Passang Dorjee Tamang v. State of Sikkim

2019-07-04

BHASKAR RAJ PRADHAN, MEENAKSHI MADAN RAI

body2019
JUDGMENT : MEENAKSHI MADAN RAI, J. 1. The Appellant was convicted under Sections 5(m) and 5(p) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, POCSO Act, 2012) punishable under Section 6 of the POCSO Act. He was sentenced to undergo rigorous imprisonment for a period of 10 years and pay a fine of Rs.5,000/- (Rupees five thousand) only, under each of the sections supra. The sentences were ordered to run concurrently with default clauses of imprisonment. Aggrieved thereof, the Appellant assails the Judgment, dated 25-04-2018 and Order on Sentence, dated 26-04-2018, of the Learned Special Judge, POCSO Act, 2012, South Sikkim, at Namchi, in Sessions Trial (POCSO) Case No.21 of 2016. 2. The Appellant herein was accused of sexually assaulting a five year old girl child P.W.6, on 11-08-2016, while bringing her home from school in his taxi. The Appellant was a taxi driver by profession and the victim along with several other children were taken to school and dropped off to their homes after school, in his taxi. On the relevant day, the victim was the last child in the taxi to be taken home, en route the Appellant took her to an isolated place, sexually assaulted her and then took her home. P.W.6 narrated the ordeal to her parents and on the same day, at around 1845 hours, her father, P.W.2, lodged the Complaint, Exhibit 3, before the concerned Police Out Post. Investigation into the matter revealed the aforestated facts, pursuant to which Charge-Sheet was submitted against the Appellant under Section 376 of the Indian Penal Code (IPC) read with Sections 4, 6 and 8 of the POCSO Act, 2012. The Learned Trial Court framed Charges against the Appellant under Sections 376(2)(f), 376(2)(i), 354B of the IPC and under Sections 5(m) and 5(p) punishable under Section 6 of the POCSO Act, 2012. On the Appellant entering a plea of “not guilty” to the Charges, the Prosecution examined 10 witnesses to establish its case beyond a reasonable doubt. The Appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter, Cr.P.C.) where he claimed to be falsely implicated in the matter, no reason for such implication was detailed. On considering the evidence, the Learned Trial Court pronounced the impugned Judgment and Order on Sentence. 3. The Appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter, Cr.P.C.) where he claimed to be falsely implicated in the matter, no reason for such implication was detailed. On considering the evidence, the Learned Trial Court pronounced the impugned Judgment and Order on Sentence. 3. The grounds raised in the Appeal are that the Prosecution failed to examine any other student who was a passenger in the taxi to establish the victim’s presence in the vehicle or whether infact the victim had gone to school on the relevant day. That, no effort was made by P.W.10 the Investigating Officer (I.O.) to seize the Attendance Register of the victim’s class to establish this aspect, apart from which no independent witnesses were furnished to establish the Prosecution case. It was also contended that there are anomalies in the evidence of P.W.3 and P.W.5 witnesses to the seizure of M.O.I, underwear of the Appellant, while the uniform worn by the victim during the alleged incident was not seized at all. The evidence of P.W.5 reveals that when the seizure of the vehicle Maruti Car was made by the Police it was at the Ravangla Police Station, raising doubts as to whether the Appellant had indeed driven the vehicle on the relevant day. Hence, in view of the aforestated shortcomings the impugned Judgment ought to be set aside. 4. Per contra, the arguments of Learned Additional Public Prosecutor was to the effect that the victim P.W.6 has identified the Appellant during the Test Identification Parade held vide Exhibit 15. Her statement Exhibit 10 under Section 164 of the Cr.P.C. has also been recorded, neither these documents nor the contents thereof have not been demolished under cross-examination. That, the perceived anomalies in the evidence of P.W.3 and P.W.5 is infact no anomaly as both have identified M.O.I as the underwear of the Appellant. That, the seizure of the vehicle was made from the Appellant and no contrary evidence emerges on this aspect. In view of the identification of the Appellant, the seizures made in connection with the case and the evidence given by the victim herself establishes without a doubt that the Appellant had indeed committed the offence and no perversity arises in the impugned Judgment and Order on Sentence of the Learned Trial Court. 5. In view of the identification of the Appellant, the seizures made in connection with the case and the evidence given by the victim herself establishes without a doubt that the Appellant had indeed committed the offence and no perversity arises in the impugned Judgment and Order on Sentence of the Learned Trial Court. 5. We have heard the rival contentions advanced by Learned Counsel for the parties, carefully perused the evidence and documents on record and the impugned Judgment and Order on Sentence. 6. The short question for consideration is whether the Learned Trial Court fell in error in convicting the Appellant. It would be essential in this context to carefully analyse the evidence furnished by the Prosecution. 7. P.W.1 the Doctor who was on duty at the District Hospital has testified that the victim was brought to him for examination with allegations of rape committed on her by the Appellant. He referred her for gynecological consultation. P.W.9 was the Gynecologist at the relevant time. The victim, as per P.W.9, was brought to the Hospital by her mother whose permission P.W.9 obtained before examining the victim. The victim, according to the Doctor, looked frightened and was hesitant to talk about the incident. The minor narrated to P.W.9 that the driver of the vehicle in which she was returning from school on the relevant day had forced himself on her and inserted his genital into hers. On local examination, the Doctor found blood stains on the thighs of the victim, her hymen was torn and there were fresh blood stains. She handed over the underwear M.O.IV of the minor victim to the Police. These facts remained undecimated under cross-examination. P.W.2 was the father of the victim, according to whom, on the relevant day his minor daughter the victim reached home at about 2 p.m. instead of the usual time of 1 p.m. She was crying and did not allow her parents to touch her or to change her uniform. Her grandmother pacified the minor victim, removed her uniform and checked her body during which she noticed blood coming out from the genital of the victim. They immediately took her to the Public Health Centre (PHC) where the Doctor examined the victim and told them that she had been raped. P.W.2 then took the minor victim to the Police Out Post and lodged Exhibit 3. These facts withstood cross-examination. They immediately took her to the Public Health Centre (PHC) where the Doctor examined the victim and told them that she had been raped. P.W.2 then took the minor victim to the Police Out Post and lodged Exhibit 3. These facts withstood cross-examination. The evidence of P.W.5 establishes that M.O.I the underwear of the Appellant was seized from him, in his presence. The vacillation of P.W.3 in identification of M.O.I is a minor discrepancy and has no bearing on the Prosecution case. 8. P.W.8 the Junior Scientific Officer in the Biology Division of the Regional Forensic Science Laboratory (RFSL) examined M.O.II (collectively) the penile swab of the Appellant, one brown coloured underwear of the Appellant partially torn M.O.I, vaginal swab of the victim M.O.III, one green coloured underwear of the victim M.O.IV, blood sample of the victim M.O.V and blood sample of the Appellant M.O.VI. According to the witness on thorough analysis of the Exhibits he found that the blood group of the victim was “AB” while that of the Appellant was “A+”. Human semen of blood group “A+” was detected in M.O.I the Appellant’s underwear and in M.O.III the vaginal swab of the victim. Hence, it is clear that semen belonging to the Appellant was found not only in his own underwear but also in the vaginal swab of the victim establishing the fact of sexual assault by the Appellant on the child. No questions were put in cross-examination to decimate this evidence. This evidence coupled with that of P.W. 9 the Gynecologist, P.W.2 the father of the victim and P.W.6 the victim herself clearly substantiates the Prosecution case. It is pertinent to notice that P.W.6 has coherently and cogently stated that on the relevant day, the date and month of which she did not remember when she returning home in the vehicle of the Appellant after school was over she was alone in the vehicle, the Appellant lifted her skirt and forcibly put his penis into her vagina upon which she cried in pain. The Appellant thereafter reached her home. This testimony withstood the cross-examination. It emerges with clarity from the evidence of P.W.7 the Chief Judicial Magistrate that the minor victim had given her statement under Section 164 Cr.P.C. The statement of P.W.6 before the Magistrate corroborates her evidence given in the Court. The Appellant thereafter reached her home. This testimony withstood the cross-examination. It emerges with clarity from the evidence of P.W.7 the Chief Judicial Magistrate that the minor victim had given her statement under Section 164 Cr.P.C. The statement of P.W.6 before the Magistrate corroborates her evidence given in the Court. She unwaveringly identified the Appellant in three rounds of the Test Identification Parade held under Section 9 of the Indian Evidence Act, 1872. The evidence of P.W.10 pertaining to the seizure of vehicle in which the offence was committed could also not be demolished under cross-examination. 9. The age of the victim is not disputed, hence no discussions on this count need ensue. 10. In view of the entire evidence on record, we are of the considered opinion that no reasons whatsoever emanate to interfere with the findings in the impugned Judgment of the Learned Trial Court or the sentence imposed thereof. 11. Appeal fails and is dismissed accordingly. 12. No order as to costs. 13. Copy of this Judgment be forwarded to the Learned Trial Court for information, along with its records.