Pema Sherpa vs State Of Sikkim on 23 October, 2019

[Cites 18, Cited by 0]

Sikkim High Court

Pema Sherpa vs State Of Sikkim on 23 October, 2019

Equivalent citations: AIRONLINE 2019 SK 55

1. The Appellant herein is aggrieved by the Judgment and Order on Sentence, both dated 21-12-2018, in Sessions Trial (POCSO) Case No.29 of 2017, by which he was convicted of the offence under Sections 9(l), 9(m) and 9(n) punishable under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, POCSO Act, 2012) and under Section 354A(1)(i) of the Indian Penal Code, 1860 (hereinafter, IPC). Pursuant to the conviction, the Appellant was sentenced to undergo rigorous imprisonment for a period of 5 years and fine Crl.A. No.05 of 2019 2 Pema Sherpa vs. State of Sikkim of Rs.2,000/- (Rupees two thousand) only, each, under Sections 9(l), 9(m) and 9(n) punishable under Section 10 of the POCSO Act, 2012. Under Section 354A(1)(i) of the IPC the Appellant was to undergo simple imprisonment for a period of one year and fine of Rs.1,000/- (Rupees one thousand) only. The sentences of imprisonment were ordered to run concurrently and the sentences of fine bore default clauses of imprisonment. The Learned Trial Court had also ordered that the fine, if recovered, shall be made over to the victim as compensation.

2. The challenge to the impugned Judgment pivots around the medical report of the victim, P.W.1 which according to Learned Counsel for the Appellant does not prove the act of sexual assault upon her by the Appellant thereby requiring the Appellant's acquittal, apart from which the age of P.W.1 has remained unproved by the Prosecution. That, the evidence of P.W.1 is unreliable as in her statement before the Court she asserted that the act of sexual assault was perpetrated on her by the Appellant in the year 2016 when she was alone at home, her step- mother having abandoned her and her father. In contradiction thereto, the step-mother stated that she was living apart from the victim and the Appellant only since 2017 thereby rendering doubtful the victim's statement. That, infact the victim has admitted that the Appellant was a strict parent and on this account it is likely that she has falsely implicated the Appellant, hence the Appellant ought to be acquitted. Crl.A. No.05 of 2019 3

Pema Sherpa vs. State of Sikkim

3. Per contra, it was argued by Learned Assistant Public Prosecutor that the Prosecution has established beyond a reasonable doubt that the victim was eleven years at the time of the incident and as the victim herself has stated that she was molested by the Appellant, the question of proof by medical report does not arise. Besides, as the Charge would indicate, the offence alleged was not penetrative sexual assault, but only of fondling of various body parts of the victim which would not be visible during medical examination. Hence, no error arises in the conviction of the Appellant by the Learned Trial Court by the impugned Judgment dated 21-12-2018 and the Appeal deserves a dismissal.

4. The rival submissions of Learned Counsel have been heard at length and duly considered, all evidence and documents perused.

5. The question that falls for consideration before this Court is whether the Prosecution has been able to establish sexual assault on the victim, alleged to be 11 years of age, by the Appellant, her natural father, during the year 2016?

6. We may briefly delve into the facts of the case. On 10-07-2017, P.W.6 the Office Assistant in the District Child Protection Unit, Integrated Child Protection Scheme (ICPS), Social Justice Empowerment & Welfare Department (SJE&WD), Government of Sikkim, lodged the FIR Exhibit 4 before the Police Station at Gangtok alleging that the Appellant herein had abused Crl.A. No.05 of 2019 4 Pema Sherpa vs. State of Sikkim and sexually assaulted his daughter P.W.1 the victim, by fondling her breasts and touching her private part since April, 2017. Such information had been given to P.W.6 by two neighbours of the victim P.W.4 and P.W.7. The victim during counselling by P.W.2 and P.W.6 confirmed the facts and had reportedly shared it with her above-stated neighbours. Based on the information, a Case under Section 354 of the IPC read with Section 10 of the POCSO Act, 2012, was registered against the Appellant being FIR Case No.161/2017, dated 10-07-2017 and endorsed for investigation.

7. Investigation revealed that the Appellant, aged about 37 years, was a business man and a permanent resident of Darjeeling, West Bengal. The victim was born from the wedlock between the Appellant and his first wife. In 2008, the Appellant married for a second time and he along with his wife and the victim lived together as a family. Due to domestic violence both physical and mental perpetrated on his second wife due to his drunkenness she left their home. Thereafter, the Appellant used to return home late at night inebriated and started sexually assaulting the victim almost every night. The victim disclosed the acts of the Appellant to her neighbour P.W.4 and P.W.7, who on 10-07-2017 took the victim to the Office of the Complainant, following which Exhibit 4 came to be lodged. On completion of investigation, Charge-Sheet was filed against the Appellant under Section 354 of the IPC read with Section 10(l), (m) and

(n) of the POCSO Act, 2012.

Crl.A. No.05 of 2019 5

Pema Sherpa vs. State of Sikkim

8. The Learned Trial Court framed Charge against the Appellant under Sections 9(l), 9(m) and 9(n) punishable under Section 10 of the POCSO Act, 2012 and under Section 354A(1)(i) of the IPC to which the Appellant pleaded "not guilty" and claimed trial. Upon such claim, the Prosecution examined 14 witnesses.

9. It is obvious that there was no eye-witness to the incident. P.W.1 alleged to be eleven years was the victim who was firstly examined under Section 33 of the POCSO Act, 2012 and Section 118 of the Indian Evidence Act, 1872, by the Learned Trial Court to gauge her competence to testify and on being so satisfied proceeded to examine her. At the time her evidence was recorded she was housed in a Shelter Home. According to her, the whereabouts of her natural mother were unknown to her. That, her step-mother resided separately with her children and she was living with her father, the Appellant and attending school. That, she and her father, slept in different rooms but during the night he used to call her to his bed and fondle her breasts on account of which she suffered pain on her breasts. She narrated the incident to her neighbours who informed the Child Welfare Officer upon which she was taken by the Officer and the neighbours to lodge the Complaint. She was examined at the STNM Hospital by a Doctor and she also made a statement before the Court. Although it is the case of the Appellant that it was a false allegation against him on account of his strictness towards the victim, in the first instance, this Crl.A. No.05 of 2019 6 Pema Sherpa vs. State of Sikkim ground has not been proved by the Appellant and secondly, such an allegation of sexual assault against her father who was providing her with food and shelter would have far reaching consequences, thus far be it from a child to raise a false accusation. The statements made by her with regard to sexual assault were not decimated in cross-examination. The evidence of P.W.1 so far as sexual assault is concerned is supported by the evidence of P.W.2, P.W.4, P.W.6 and P.W.7. P.W.2 deposed that the victim narrated the fact of sexual assault by her father to her and P.W.6 in their Office, where the victim had been brought by two college going girl students (P.W.4 and P.W.7). P.W.2 at the relevant time was the Child Protection Officer in the Social Justice Empowerment & Welfare Department, Government of Sikkim. The victim had complained to them that her father used to sexually assault her by touching her breasts and private part at night. P.W.6 has stated that a Complaint, Exhibit 4, was lodged pursuant to the victim having been brought by two girls to her with the complaint of sexual assault by the Appellant. As per P.W.6 the victim had disclosed both to her and P.W.2 that she was sexually assaulted by her father. The evidence of P.W.2 and P.W.6 withstood the cross-examination. P.W.3 was the step-mother of the victim, her evidence however was of no assistance to the Prosecution case being hearsay. P.W.5 is the Doctor who on examining the victim found no signs of old or fresh injuries after examining the victim, however she found that the hymen had been torn and since healed. P.W.4 and P.W.7 Crl.A. No.05 of 2019 7 Pema Sherpa vs. State of Sikkim also supported the evidence of P.W.2 and P.W.6 with regard to the victim's narration of the allegation of sexual assault by the Appellant on her, hence the evidence of these four witnesses were in corroboration with that of P.W.1. Although P.W.5 found no signs of injury on the victim on her medical examination, however it is relevant to take note of the argument of Learned Public Prosecutor that the allegation is in the first instance not of penetrative sexual assault and neither did she allege violence by the Appellant when he sexually assaulted her by touching her breasts. The victim is categorical in her statement that he fondled her breasts, but there was no allegation against the Appellant of any form of penetrative assault. In view of the statement of the victim who is merely eleven years old with no motive to falsely implicate her father, I find no reason as to why her statement should be looked at with suspicion or doubt. In this context, it is worthwhile noticing that in State of U.P. vs. Pappu alias Yunus and Another1 the Hon'ble Supreme Court held that --

"12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as 1 (2005) 3 SCC 594 Crl.A. No.05 of 2019 8 Pema Sherpa vs. State of Sikkim understood in the context of an accomplice, would do."

This observation holds true in the instant matter as well.

10. Section 7 of the POCSO Act, 2012, defines sexual assault as follows;

"7. Sexual Assault.─Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."

The offence of aggravated sexual assault finds place in Section 9 of the Act. From a perusal of legal provisions and the evidence on record, it is clear that the Appellant had committed the offence of aggravated sexual assault as defined in Section 9(l), (m) and (n) of the POCSO Act, 2012.

11. So far as the age of the victim is concerned, the Investigating Officer (I.O.) stated that in order to ascertain the age of the victim he seized her Birth Certificate vide Seizure Memo, Exhibit 7. From a perusal of Exhibit 7 it is evident that the Birth Certificate, Exhibit 8, was seized from the Appellant in the presence of a witness Amrit Sharma, P.W.8 who duly identified the document as one seized by the I.O. in his presence vide Seizure Memo Exhibit 7. The I.O. further stated that in ascertaining the authenticity of Exhibit 8 he made a requisition to the Chief Registrar of Births and Deaths, Gangtok, East Sikkim, vide communication Exhibit 9. P.W.9 the concerned Officer to whom requisition Exhibit 9 was made deposed that Crl.A. No.05 of 2019 9 Pema Sherpa vs. State of Sikkim during July 2017 he was posted as the Joint Director II-cum- Registrar, Births and Deaths Cell, Health Care, Human Services and Family Welfare, Government of Sikkim. On 29-07-2017 after receiving the requisition Exhibit 9 he took up necessary verification upon which it came to light that the victim's date of birth as recorded in the Live Birth Register was "01-03-2007", at Page 40, Sl. No.393 bearing registration No.07/D-393, dated 19- 03-2007. He verified the contents of Exhibit 8 from the counterfoil maintained in their Office and found the entries to be true, authentic and correct. He accordingly issued Exhibit 10 certifying therein that the name of the victim was found recorded and registered in the said Register. He had brought to the Court the Live Birth Register maintained by their Office for reference and perusal of the Court. His cross-examination failed to contradict the evidence given by him. His evidence lends credence to the evidence of P.W.1 who stated that she was 11 years old when she deposed before the Court.

12. In this view of the matter, the question of the age of the victim remaining unestablished as sought to be agitated by Learned Counsel for the Appellant does not arise nor is the ratio in Jarnail Singh vs. State of Haryana2 which deals with age proof under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, of any assistance to the Appellant's case. In any event, the Juvenile Justice (Care and Protection of Children) Act, 2015 was enforced in 01-01-2016 and the 2 (2013) 7 SCC 263 Crl.A. No.05 of 2019 10 Pema Sherpa vs. State of Sikkim provisions of the presumption and determination of age are now covered by Section 94 of the Act.

13. Considering the foregoing discussions, the Judgment and Order on Sentence of the Learned Trial Court brooks no interference, save to the extent of compensation granted to the victim.

14. The Learned Trial Court had granted compensation of a sum of Rs.1,00,000/- (Rupees one lakh) only, to the victim under the Sikkim Compensation to Victims or his Dependents Scheme, 2011. A perusal of the said Scheme of 2011 vide Notification No.50/Home/2011, dated 24-06-2011, the Scheme makes no mention of compensation of Rs.1,00,000/- (Rupees one lakh) only, for sexual assault and even for rape, the amount prescribed as compensation is Rs.50,000/- (Rupees fifty thousand) only. The 2011 Scheme came to be amended in 2013 vide Notification No.78/Home/2013 dated 03-12-2013 whereby compensation of Rs.1,00,000/- (Rupees one lakh) only, was envisaged for victims of rape, but not for sexual assault. It is apposite to mention here that the offence was committed in the year 2017, by which time the Sikkim Compensation to Victims or his Dependents (Amendment) Schemes, 2016 was already in place vide Notification No.66/Home/2016, dated 18- 11-2016, Government of Sikkim. Thus, the order of the Learned Trial Court pertaining to compensation is set aside and in its stead in terms of the amended Scheme 2016 supra and on Crl.A. No.05 of 2019 11 Pema Sherpa vs. State of Sikkim account of the finding of sexual assault of the victim, a sum of Rs.50,000/- (Rupees fifty thousand) only, as prescribed therein is awarded to the victim as compensation. The Sikkim State Legal Services Authority (SSLSA) shall take necessary steps as required in this context. The entire compensation amount shall be deposited in a Nationalised Bank, in a Fixed Deposit, in the name of P.W.1. The certificate of TDR shall be produced before the SSLSA by the victim's guardian for perusal and verification. P.W.1 shall be eligible to withdraw the amount when she attains the age of majority.

15. In the end result, the Appeal is dismissed.

16. No order as to costs.

17. Copy of this Judgment be forwarded to the Learned Trial Court and to the Member Secretary, SSLSA, for information and compliance.

( Justice Meenakshi Madan Rai ) Judge 23 -10-2019 Approved for reporting : No Internet : Yes ds

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