Sikkim High Court
State Of Sikkim vs Lall Bahadur Rai on 28 October, 2024
Author: Meenakshi Madan Rai
Bench: Meenakshi Madan Rai
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
Dated : 28th October, 2024
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SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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Crl.A. No.14 of 2024
Appellant : State of Sikkim
versus
Respondent : Lall Bahadur Rai
Appeal under Section 378(1)(b) of the
Code of Criminal Procedure, 1973
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Appearance
Mr. Yadev Sharma, Additional Public Prosecutor for the State-
Appellant.
Mr. Karma Thinlay, Senior Advocate with Mr. Chetan Sharma,
Mr. Yashir N. Tamang and Mr. Zamyang N. Bhutia, Advocates for
the Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The State-Appellant is aggrieved by the acquittal of the
Respondent by the Court of the Learned Special Judge (POCSO), at
Namchi, Sikkim, vide Judgment dated 29-11-2022, in Sessions
Trial (POCSO) Case No.19 of 2019 (State of Sikkim vs. Lall
Bahadur Rai), under Section 9(m) and Section 9(n), both offences
being punishable under Section 10 of the Protection of Children
from Sexual Offences Act, 2012 (hereinafter, the “POCSO Act”) and
under Section 354 of the Indian Penal Code, 1860 (hereinafter, the
“IPC”).
2. The Learned Trial Court while acquitting the
Respondent of the offences charged with, was loathe to rely on the
evidence of PW-1 the victim, PW-2 the step father of the victim,
PW-3 the mother of the victim and PW-6 Staff of a Child Care
Institution (CCI). The following reasons weighed with the Learned
Crl.A. No.14 of 2024 2
State of Sikkim vs. Lall Bahadur Rai
Trial Court while acquitting the Respondent/Accused. PW-1 who
deposed that the Respondent touched her vagina, did not
remember the date, month or year of the incident neither did PW-
2, her step father or PW-3 her mother, who in her evidence before
the Court deposed that, the incident had occurred two years prior
to the recording of her evidence before the Court. The Court
reasoned that, as PW-3 was examined on 08-04-2021, the incident
could be presumed to have occurred sometime during 2019, but
PW-2 had lodged Ext-2 on 20-12-2018 and contrarily deposed that
the incident occurred during 2019. The Court observed that there
was no corroboration with regard to the time lines of the incident
or the lodging of the FIR. PW-2 deposed that he was informed by
the victim in 2019 that the Respondent had fondled her „private
part‟ but under cross-examination denied knowledge about the
incident or of the victim having narrated it to him. That, he lodged
Ext-2 on being asked by one Gopal Rai, to do so who however was
not furnished as a Prosecution witness, depriving the Court of the
benefit of the latter‟s evidence. As per PW-6 a staff of the CCI, she
went with her team to the house of PW-1 after receiving a call in
the Helpline number in December 2018, where PW-1 narrated the
incident of sexual assault to her following which PW-6 accompanied
PW-2 to lodge the FIR. The Court observed that PW-6 made no
mention of who she had received the call from or who her team
comprised of nor did she mention the presence of any Gopal Rai at
the Police Station. The Court was of the view that the above
contradictions in the evidence of PW-1, PW-2, PW-3 and PW-6 with
regard to the lodging of Ext-2 and the incident was “confusing” and
that lodging of Ext-2 did not lend credence to the case of the
Prosecution. That, PW-2 had handed over Ext-4, the victim‟s
Crl.A. No.14 of 2024 3
State of Sikkim vs. Lall Bahadur Rai
original birth certificate to the Police but under cross-examination
denied knowledge of the victim‟s actual date of birth. The Court
however concluded that the victim was below twelve years, taking
recourse to Ext-6, entry of the victim‟s date of birth in the school
admission register and Ext-13 viz; certification that victim‟s date of
birth was found in Ext-14, the relevant Birth Register of the
Primary Health Centre and identified by PW-9. That, the victim in
her statement under Section 164 Code of Criminal Procedure, 1973
(hereinafter, the “Cr.P.C.”) stated that during the relevant time she
was playing with her brother, the Court observed that the place of
occurrence according to PW-2 was a busy thoroughfare. That, PW-
3 their mother stated that PW-1 was playing with her minor brother
in the courtyard of her house, while PW-3 was working in a nearby
field and could hear the voices of her children. When she failed to
hear them, she returned home and saw PW-1 on the lap of the
Respondent but during cross-examination PW-3 deposed that, she
did not witness the incident. That, the cross-examination of the
victim revealed that the Respondent loved them both, raising the
possibility of the victim having been tutored as she was only 8 ─ 9
years old at the relevant time. The younger brother of PW-1 was
not arraigned as a witness nor examined by the Prosecution. PW-
7, the Station House Officer who registered Ext-2 mentioned that
the FIR was lodged three days after the incident but his evidence
did not indicate whether PW-2 was accompanied by PW-6 or Gopal
Rai to the Police Station. The evidence of PW-9 the doctor, who
examined PW-1 and the Respondent did not support the
Prosecution case and PW-11 had merely conducted the
investigation. That, the presumption under Section 29 of the
POCSO Act could not be shifted to the Respondent as held by this
Crl.A. No.14 of 2024 4
State of Sikkim vs. Lall Bahadur Rai
Court and the Hon‟ble Supreme Court of India. The Court also
found that though the Prosecution examined eleven witnesses,
there was no evidence worthy of consideration and the possibility
thereby of false implication could not be ruled out, hence the Court
acquitted the Respondent.
3. Learned Additional Public Prosecutor opening his
arguments for the State-Appellant contended that at the time of
the offence PW-1 was eight years old while the Respondent was
fifty. That, there is no opposition to the finding regarding the age
of the victim. The FIR, Ext-2 was lodged on 20-12-2018 by PW-2,
where he has categorically complained that his eight year old
daughter was sexually assaulted by the Respondent. Pursuant
thereto, the statement of PW-1 under Section 164 of the Cr.P.C.
was recorded on 28-12-2018 and her statement before the Court
was recorded almost a year later. Despite the lapse in time, the
evidence regarding the incident of sexual assault perpetrated on
her by the Respondent stood the test of cross-examination. The
Learned Trial Court without basis or enumerating reasons for her
opinion assumed that the child could have been tutored but failed
to examine and consider that her statement under Section 164
Cr.P.C. and her deposition before the Court corroborated each
other and had withstood the cross-examination. That, PW-2 and
PW-3 had corroborated the victim‟s statement with regard to the
occurrence of the incident. That, minor discrepancies that may
have arisen in the deposition of PW-2 pertaining to the date of the
incident most likely occurred on account of PW-2 being a rustic
farmer and lacking education but the case of sexual assault was
not decimated by such discrepancy and stood on the bedrock of the
victim‟s evidence. That, the Prosecution case of sexual assault has
Crl.A. No.14 of 2024 5
State of Sikkim vs. Lall Bahadur Rai
been established and mere delay in the lodging of Ext-2 was not
fatal to the Prosecution case. The Learned Trial Court was thus in
error in having acquitted the Respondent. Reliance was placed on
1
Tshering Thendup Bhutia vs. State of Sikkim and State of Sikkim vs.
2
Pintso Bhutia of this Court to buttress his submissions.
4. Repelling the arguments of the Prosecution, it was
canvassed by Learned Senior Counsel for the Respondent that
consistent anomalies arose in the Prosecution case as according to
the FIR the Respondent took PW-1 on his lap and touched her
private part. According to PW-1 the incident occurred after she
returned from school and was playing with her younger brother in
the “courtyard” of their house. Contrary to the evidence of PW-1,
PW-3 the victim‟s mother, stated that “…..When I reached my
‘home’ I saw the accused person keeping my victim daughter on
his lap…….”. That, on seeing her, the Respondent left her child on
the floor and went out of her house. Her cross-examination
contrarily indicates that she could hear and see the person in the
courtyard of her house from the field where she was working.
Thus, the place of incident is unidentified being mired in confusing
evidence as seen supra. PW-2 under cross-examination admitted
that PW-1 did not narrate the occurrence of the incident to him.
He was admittedly unaware of the contents of Ext-2, which he
lodged on the compulsion of one Gopal Rai who however was not
furnished as a Prosecution witness. As per PW-3, her minor son
was very talkative, contrarily the Investigating Officer (IO) PW-11
deposed that as the boy was of tender years he could not articulate
his thoughts and was thus not furnished as a Prosecution witness.
1
2024 SCC OnLine Sikk 33
2
2023 SCC OnLine Sikk 41
Crl.A. No.14 of 2024 6
State of Sikkim vs. Lall Bahadur Rai
Two contradictory views thereby emerge on the verbal competence
of the victim‟s brother. That, in all likelihood the child was not
cited as Prosecution witness having been sent to fetch water for the
Respondent and did not witness the alleged incident. The non-
production of Gopal Rai and the victim‟s minor brother as
Prosecution witnesses leads to an adverse inference against the
Prosecution case. Reliance was placed on Govindraju alias Govinda
3
vs. State by Sriramapuram Police Station and Another and Nirmal
4
Premkumar and Another vs. State represented by Inspector of Police .
The predicament thus is whether the FIR is to be relied on or the
evidence of PW-2. To support this contention reliance was placed
on National Insurance Company Limited vs. Chamundeswari and
5
Others . That, in an effort to explain the delay in the lodging of
the FIR, the Prosecution has insinuated that the Respondent came
to the victim‟s house with his family attempting to reconcile the
matter but no evidence fortifies such an allegation. While outlining
the powers of an Appellate Court in matters of acquittal, succour
was drawn from Jafarudheen and Others vs. State of Kerala6 and Ballu
7
and Another vs. State of Madhya Pradesh . It was also argued that
the Prosecution must first establish its case, in the absence of
which, a reverse burden cannot be cast upon the Respondent as
held in State of Sikkim vs. Karna Bahadur Rai8. Hence, the impugned
Judgment warrants no interference.
5. The rival contentions having been heard and considered
and all records perused. It would be apposite firstly to look at the
decision of the Supreme Court in Jafarudheen (supra) relied on by
3
(2012) 4 SCC 722
4
2024 SCC OnLine SC 260
5
(2021) 18 SCC 596
6
(2022) 8 SCC 440
7
2024 SCC OnLine SC 481
8
2020 SCC OnLine Sikk 33
Crl.A. No.14 of 2024 7
State of Sikkim vs. Lall Bahadur Rai
Learned Senior Counsel for the Respondent which inter alia lays
down the powers for an Appellate Court while considering an
appeal against acquittal. The Supreme Court observed therein
inter alia that the Appellate Court has to consider whether the trial
court‟s view can be termed as a possible one, particularly when the
evidence on record has been analysed, as an order of acquittal
adds up to the presumption of innocence in favour of the accused,
requiring the Appellate Court to be relatively slow in reversing the
order of acquittal of the trial court. Such a double presumption
that enures in favour of the accused is to be disturbed only by
thorough scrutiny on the accepted legal parameters. The
Judgment also considered the rulings in Mohan alias Srinivas alias
9
Seena alias Tailor Seena vs. State of Karnataka , Anwar Ali and Another
10
vs. State of Himachal Pradesh and Babu vs. State of Kerala11 and a
plethora of other decisions on the point.
(i) Relevantly, it may be noticed that in Sadhu Saran Singh
vs. State of Uttar Pradesh and Others12 the Supreme Court opined as
follows;
“20. …………………. In an appeal against acquittal
where the presumption of innocence in favour of the
accused is reinforced, the appellate court would
interfere with the order of acquittal only when there is
perversity of fact and law. However, we believe that
the paramount consideration of the Court is to do
substantial justice and avoid miscarriage of justice
which can arise by acquitting the accused who is
guilty of an offence. A miscarriage of justice that may
occur by the acquittal of the guilty is no less than
from the conviction of an innocent. ……………….
21. This Court, in several cases, has taken the
consistent view that the appellate court, while dealing
with an appeal against acquittal, has no absolute
restriction in law to review and relook the entire
evidence on which the order of acquittal is founded. If
the appellate court, on scrutiny, finds that the
decision of the court below is based on erroneous9
(2022) 12 SCC 619
10
(2020) 10 SCC 166
11
(2010) 9 SCC 189
12
(2016) 4 SCC 357
Crl.A. No.14 of 2024 8State of Sikkim vs. Lall Bahadur Rai
views and against settled position of law, then the
interference of the appellate court with such an order
is imperative.” [emphasis supplied]
(ii) In Harijan Bhala Teja vs. State of Gujarat13 the Supreme
Court held as follows;
“12. No doubt, where, on appreciation of
evidence on record, two views are possible, and the
trial court has taken a view of acquittal, the appellate
court should not interfere with the same. However,
this does not mean that in all the cases where the
trial court has recorded acquittal, the same should not
be interfered with, even if the view is perverse. Where
the view taken by the trial court is against the weight
of evidence on record, or perverse, it is always open
for the appellate court to express the right conclusion
after reappreciating the evidence if the charge is
proved beyond reasonable doubt on record, and
convict the accused. ……………………………”
6. Indeed this Court is conscious and aware that, the High
Court is to be slow in interfering with appeals against acquittals,
yet it cannot remain a mute spectator, when, on analyzing the
evidence on record it arrives at a finding that there has been a
travesty of justice. Courts have the rather onerous duty of sifting
the chaff from the grain and it cannot be denied that Courts are
clothed with the duty of culling out the truth from the evidence
furnished, to analyze whether the inconsistencies in the
Prosecution case are so glaring as to decimate it in its entirety. It
may be reiterated that the Courts not only have the responsibility
of ensuring that an innocent man does not suffer the travails of
incarceration but are also to ensure that a guilty man does not go
unpunished.
(i) The above views of the Supreme Court therefore can
be summarized by stating that the role of the High Court as an
Appellate Court is ultimately to mete out even handed and if
perversity is found in the Judgment of the Trial Court which is
13
(2016) 12 SCC 665
Crl.A. No.14 of 2024 9
State of Sikkim vs. Lall Bahadur Rai
against the weight of evidence, the hands of the High Court are not
tied.
(ii) On the anvil of these observations, while considering
the Judgment of acquittal of the Learned Trial Court the reasons
given thereof and the arguments regarding inconsistencies in the
evidence of the witnesses the question that falls for determination
before this Court is;
Whether the Prosecution case of sexual assault for
which the Respondent was charged under Section
9(m) and Section 9(n) of the POCSO Act and Section
354 of the IPC stands demolished by minor
contradictions in the witnesses evidence?
It would have to be answered with a resounding „No‟, as PW-
1 who is the victim of the sexual assault by a predator aged fifty
years has been consistent in her evidence pertaining to the sexual
assault perpetrated on her. Before the Court she stated as follows;
“………………… I do not remember the date,
month and the year but on that day my mother had
gone to potato field and even my father was not
present at home. After coming from school, I along
with my brother were playing outside the courtyard of
our house. During that time, the accused had come
from Ravangla and asked us whether my teachers
came today to school or not. I replied yes and at that
time the accused called me and kept me on his lap
and he fondled my breasts and also touched ish
garney (vagina). Thereafter, my mother came from
the potato field. Seeing her, the accused person ran
away from our house and at the same time my
brother also narrated the entire incident to our
mother. ……………………” [emphasis supplied]
(iii) In the Court she was confronted with Exbt-1, her
statement under Section 164 Cr.P.C. recorded by a Magistrate
which she identified and confirmed as having been made by her.
She stated therein as follows;
“…………………………. When my brother Pujan
and I were sitting under the tree near our house, L.B.
“kopa” (grandfather) came towards us and made me
sit on his lap and started asking whether my teachers
came today to school. I replied yes and at that time
he touched my chest by sliding his hands under my t-
shirt and also touched my “pisap garney” vagina by
sliding his hands under my pants. I told him that I
Crl.A. No.14 of 2024 10State of Sikkim vs. Lall Bahadur Rai
will tell my mother but he said not to tell. Later, he
left hurriedly when my mother came searching for
us. My brother Pujan narrated the whole incident to
my mother. …………………….” [emphasis supplied]
(iv) Relevantly, it must be mentioned that her statement
under Section 164 of the Cr.P.C., Exbt-1, was recorded on 28th day
of December, 2018 and her evidence before the Court was
recorded on 10th day of December, 2019. Notwithstanding the
passage of time of almost a year, she has been consistent and
unwavering about the details of the sexual assault and no
contradictions are found in her statements. The evidence of PW-1
withstood the prolix cross-examination and confirmed the fact of
sexual assault as she stated;
“………………………….. It is not a fact that the
accused did not fondle my breasts and did not touch
my ish garney (vagina). …………………..”
Pertinently, notice is to be taken of the fact that prior to the
recording of her evidence, the victim was examined by the Learned
Trial Court to assess her competence to testify and she was found
competent to depose despite her tender years. The assumption
made by the Learned Trial Court about the child having been
tutored, remains just that, i.e. an assumption, in the absence of
evidence to augment it and being bereft of any reasoning by the
Court itself and thereby deserves no consideration whatsoever.
The inability of the victim to specify the date of incident cannot be
a ground to raze the Prosecution case in the facts and
circumstances put forth in the instant matter. Learned Senior
Counsel for the Respondent was of the view that the FIR did not
specifically mention the place of occurrence of the incident. It
would do well to bear in mind that PW-1 was not the person who
lodged the FIR, it was PW-2 her step father who did so and
evidently was not well versed with the entire „details‟ of the
Crl.A. No.14 of 2024 11
State of Sikkim vs. Lall Bahadur Rai
incident, which is well expected, as he was not present at the place
of occurrence. Nevertheless, he did report the sexual assault
perpetrated on the victim by the Respondent as narrated to him by
PW-3. Mere non-mentioning of the place of occurrence in the FIR
does not demolish the Prosecution case. In this context, it is no
more res integra that the FIR is not an encyclopedia. The Hon‟ble
Supreme Court in Amish Devgan vs. Union of India and Others14 while
discussing the validity of first information reports (FIRs) observed
as follows;
“113. Acronym FIR, or the first information
report, is neither defined in the Criminal Procedure
Code nor is used therein, albeit it refers to the
information relating to the commission of a cognizable
offence. This information, if given orally to an officer
in charge of the police station, is mandated to be
reduced in writing. Information to be recorded in
writing need not be necessarily by an eyewitness,
and hence, cannot be rejected merely because it is
hearsay. Section 154 does not mandate nor is this
requirement manifest from other provisions of the
Criminal Procedure Code. Further, FIR is not meant
to be a detailed document containing chronicle of all
intricate and minute details. In Dharma Rama
Bhagare v. State of Maharashtra [Dharma Rama
Bhagare v. State of Maharashtra, (1973) 1 SCC 537 : 1973 SCC
(Cri) 421] it was held that an FIR is not even considered
to be a substantive piece of evidence and can be only
used to corroborate or contradict the informant’s
evidence in the court.” [emphasis supplied]
(v) In light of the above exposition, the lack of intricate
details in the FIR is inconsequential as also information given by a
third person, suffice it to have an FIR on record informing the
police of an offence which would thereby set the wheels of the
criminal justice system in motion.
(vi) The other inconsistencies raised by the Respondent
were that, as per PW-1 the incident occurred in the courtyard
outside their house, while from the evidence of PW-3 it can be
assumed that it was inside her house. Firstly, both PW-3 and PW-
14
(2021) 1 SCC 1
Crl.A. No.14 of 2024 12State of Sikkim vs. Lall Bahadur Rai
1 have stated that PW-1 was on the lap of the Respondent when
PW-3 came to the house. On this aspect no contradiction arises.
Minor contradictions which arise during the recording of evidence
and translation from the Nepali vernacular to English in fact
requires the Judicial Officer to be vigilant in the Court room when
such evidence is rendered, translated and recorded, to prevent
anomalies. Nonetheless, these anomalies do not go to the root of
the case of sexual assault, as the place of occurrence described by
the Prosecution witnesses are not so disparate as to lead to a total
disbelief of the Prosecution case of sexual assault. In my
considered view, there is no reason to disbelieve the evidence of
either the victim or her mother. The fact remains that the incident
occurred within and around the precincts of the house of PW-3 and
the minute description of the place of occurrence appears to have
been lost in translation. The Trial Court also erroneously observed
that a contradiction arose in the evidence of PW-3 who stated that
she returned home and saw PW-1 on the lap of the Respondent but
while being cross-examined deposed that she did not witness the
incident. As evident, PW-3 has nowhere in her deposition claimed
to have witnessed the incident of sexual assault, she merely saw
the child on the Respondent‟s lap.
(vii) Learned Senior Counsel for the Respondent also
pointed out that as per PW-3 the minor son was talkative but PW-
11 deposed otherwise. In my considered view, the child of barely
four years not being familiar with PW-11 could have been
apprehensive and consequently reticent to speak to an uniformed
police officer. The anxiety that the police uniform generates needs
no description more so when the child, was only four years old. In
fact, when examining the child the police officer ought not to have
Crl.A. No.14 of 2024 13
State of Sikkim vs. Lall Bahadur Rai
been in uniform as prescribed under Section 24(2) of the POCSO
Act. The Learned Trial Court observed that, the IO in his “Charge-
Sheet” had justified that the child did not speak in front of the
police. It would do well to realize that the Charge-Sheet cannot be
considered by the Court as it is not an Exhibit in the case and the
IO is to depose in Court about the facts within his knowledge. The
Court cannot take recourse to the Charge-Sheet to test the veracity
and justify the IO‟s evidence. The argument that Gopal Rai was
not furnished as a Prosecution witness, in my considered opinion
also does not aid the Respondent in his attempts to wriggle out
from the offence or to prove his innocence. Examining Gopal Rai
as a Prosecution witness in any event would in no way alter the
facts and circumstances of the Prosecution case of sexual assault
as it is no one‟s case that he was an eye witness to the incident,
hence his alleged persuasion to lodge the FIR has no adverse
repercussions on the Prosecution case, unless the Respondent was
able to establish personal acrimony or vendetta of Gopal Rai
against him, which he has not done even in his Section 313 Cr.P.C.
statement neither has the evidence of any other Prosecution
witness established acrimonious relations between the Respondent
and the family of the victim which could have instigated them to
falsely implicate the Respondent. PW-6 the staff of CCI, who on
receiving the information had gone to the house of the victim and
was told by her that Kopa (grandfather) had come to her house,
asked her to sit on his lap and thereafter put his hand on her
breasts and vagina.
(viii) After examining the deposition of the victim in Court
and her statement under Section 164 Cr.P.C., the statements
corroborate each other, are cogent, consistent and unwavering and
Crl.A. No.14 of 2024 14
State of Sikkim vs. Lall Bahadur Rai
thereby gives this Court no reason to conclude that the offence was
a figment of the victim‟s imagination or conjured up by her nor is
there evidence of her having been tutored by any person. The
evidence of PW-9, the doctor, would obviously have no bearing to
the Prosecution case as the victim made no allegations of
penetration by the Respondent either by digital methods, or with
attempt to penetrate his genital into hers or by any other article.
PW-9 during medical examination would not have been able to
detect the fondling of the victim‟s genital which is the crux of the
victim‟s case.
7. The delay in the lodging of the FIR, it is trite to mention
does not dent the Prosecution case. The Supreme Court has held
in State of Himachal Pradesh vs. Prem Singh15 that delay in lodging of
FIR in such cases does not vitiate the Prosecution case and
observed as follows;
“6. So far as the delay in lodging the FIR is
concerned, the delay in a case of sexual assault,
cannot be equated with the case involving other
offences. There are several factors which weigh in the
mind of the prosecutrix and her family members
before coming to the police station to lodge a
complaint. In a tradition-bound society prevalent in
India, more particularly, rural areas, it would be quite
unsafe to throw out the prosecution case merely on
the ground that there is some delay in lodging the
FIR. ……”
8. Thus, having analyzed the entire evidence on record, I
am constrained to opine that the Learned Trial Court was in error in
acquitting the Respondent of the offences charged with despite the
unwavering evidence of the child victim on record and her sole
testimony suffices to convict the Respondent, her evidence being
wholly trustworthy. It is settled law that the quality of a witness is
of relevance and not the quantity. The Court was swayed by and
15
(2009) 1 SCC 420
Crl.A. No.14 of 2024 15
State of Sikkim vs. Lall Bahadur Rai
impressed with peripheral extraneous and immaterial
considerations which did not in any manner weaken the crux of the
Prosecution case of sexual assault on a minor by an adult man of
fifty years. The Supreme Court in Kuriya and Another vs. State of
16
Rajasthan held as follows;
“30. This Court has repeatedly taken the view
that the discrepancies or improvements which do not
materially affect the case of the prosecution and are
insignificant cannot be made the basis for doubting
the case of the prosecution. The courts may not
concentrate too much on such discrepancies or
improvements. The purpose is to primarily and clearly
sift the chaff from the grain and find out the truth
from the testimony of the witnesses. Where it does
not affect the core of the prosecution case, such
discrepancy should not be attached undue
significance. The normal course of human conduct
would be that while narrating a particular incident,
there may occur minor discrepancies. Such
discrepancies may even in law render credential to
the depositions. The improvements or variations must
essentially relate to the material particulars of the
prosecution case. The alleged improvements and
variations must be shown with respect to material
particulars of the case and the occurrence. Every such
improvement, not directly related to the occurrence,
is not a ground to doubt the testimony of a witness.
The credibility of a definite circumstance of the
prosecution case cannot be weakened with reference
to such minor or insignificant improvements.
Reference in this regard can be made to the
judgments of this Court in Kathi Bharat
Vajsur v. State of Gujarat [(2012) 5 SCC 724 : (2012)
2 SCC (Cri) 740] , Narayan Chetanram
Chaudhary v. State of Maharashtra [(2000) 8 SCC
457 : 2000 SCC (Cri) 1546], Gura Singh v. State of
Rajasthan [(2001) 2 SCC 205 : 2001 SCC (Cri) 323]
and Sukhchain Singh v. State of Haryana [(2002) 5
SCC 100 : 2002 SCC (Cri) 961].”
9. It may be reiterated here that a purposive
interpretation is to be given to the POCSO Act and the specific
mandate of Section 29 of the POCSO Act is to be extended due
consideration. Matters concerning sexual offences against minors
require to be dealt with sensitivity and the victim‟s case ought to
be given due consideration in terms of Section 29 of the POCSO Act
when the deposition is evidently trustworthy, moreso when the
16
(2012) 10 SCC 433
Crl.A. No.14 of 2024 16
State of Sikkim vs. Lall Bahadur Rai
accused has failed to establish lack of culpable mind as required
under Section 30 of the POCSO Act. Adult sexual predators ought
not to be dealt with leniency or extended misplaced sympathy they
ought to face the penalty that their acts deserve and should not be
afforded leeway by the Learned Trial Court by micro analysis of
time and place of incident.
10. In light of the above discussions, the impugned
Judgment of the Learned Trial Court is accordingly set aside.
11. Vide the Charge framed against the Respondent on 20-
11-2019, it is seen that he was charged with Sections 9(m) and
9(n), both punishable under Section 10 of the POCSO Act, along
with a Charge under Section 354 of the IPC. It requires no
reiteration that the object of a Charge is to give the accused notice
of the offence said to have been committed by him and the
allegation that he is required to meet. If the necessary information
has been conveyed to him, then no prejudice can be said to have
been caused to him. The Court is to concern itself with a fair trial
and assess whether the accused was subjected to a fair trial. In
that context, there is no doubt. In the said circumstances, the
Respondent was aware of the Charges framed against him.
(i) That, having been said it is reiterated that the evidence
of the child does not point to penetrative sexual assault.
Consequently, the offence committed by the Respondent would be
one under Section 7 punishable under Section 8 of the POCSO Act.
Section 7 and Section 8 of the POCSO Act reads 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.
8. Punishment for sexual assault.–Whoever,
commits sexual assault, shall be punished with
Crl.A. No.14 of 2024 17State of Sikkim vs. Lall Bahadur Rai
imprisonment of either description for a term which shall
not be less than three years but which may extend to five
years, and shall also be liable to fine.”
(ii) The provisions of Section 222(2) of the Cr.P.C. are
accordingly invoked and the Respondent convicted of the offence
under Section 7 punishable under Section 8 of the POCSO Act. In
view of Section 71 of the IPC, it is not necessary to convict the
Respondent under Section 354 of the IPC.
12. Appeal is allowed.
13. The Respondent is put to Notice that hearing on
Sentence shall be taken up on the next date.
( Meenakshi Madan Rai )
Judge
28-10-2024
Approved for reporting : Yes
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