THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
st
Dated : 21 February, 2024
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DIVISION BENCH : THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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Crl. A. No.11 of 2023
Appellant : Karma Loday Lepcha alias Kancha
versus
Respondent : State of Sikkim
Appeal under Section 374(2) of the
Code of Criminal Procedure, 1973
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Appearance
Mr. Bhusan Nepal, Advocate (Legal Aid Counsel) for the
Appellant.
Mr. Yadev Sharma, Additional Public Prosecutor with Mr. Sujan
Sunwar, Assistant Public Prosecutor for the State-Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The only point pressed in Appeal herein is that the
Learned Special Judge (POCSO Act, 2012), Gangtok, in the
impugned Judgment dated 29-03-2023, in Sessions Trial (POCSO)
Case No.48 of 2019, erroneously convicted the Appellant under
Section 5(m) of the Protection of Children from Sexual Offences
Act, 2012 (hereinafter, “POCSO Act, 2012”) punishable under
Section 6 of the same Act, when the Learned Trial Court was seized
of the fact that the victim was above twelve years old at the time
of the offence as emanates from Paragraph 26 of its Judgment.
That, this error is required to be rectified as the records nowhere
indicate that the victim was below 12 (twelve) years of age when
the offence was perpetrated on her. That, the Birth Certificate of
the victim, Exhibit 1, also reveals that her date of birth is 17-03-
Crl. A. No.11 of 2023 2
Karma Loday Lepcha alias Kancha vs. State of Sikkim
2003, and her evidence lends credence to this fact as according to
her sometime during the year 2016 the first sexual assault took
place, pursuant to which she delivered a baby girl on 04-11-2016.
Thus, under no circumstance was she under 12 (twelve) years of
age at the time of the offence. There is no challenge to the
Judgment as regards the conviction and Order on Sentence under
other provisions of the POCSO Act, 2012.
2. Learned Additional Public Prosecutor fairly conceded
that an error has emanated in the impugned Judgment of the
Learned Trial Court and hence, he has no objection to the
submissions put forth by Learned Counsel for the Appellant.
3. We have heard the submissions put forth and perused
all the documents on record.
4. The documents relied on by the Prosecution before the
Learned Trial Court are not the subject matter of challenge before
this Court. The documents on record reveal that Exhibit 5, the
First Information Report (hereinafter, the “FIR”), was lodged on
01-06-2016 and endorsed to the Investigating Officer (I.O.) of the
case (P.W.18) on the same date after it was registered against the
Appellant. Exhibit 1 unequivocally reveals that the date of birth of
the victim was 17-03-2003, duly supported by Exhibit 13, the
Certificate issued by the Registrar of Births and Deaths to the effect
-03-2003. The I.O. (P.W.18) in
that the victim’s date of birth is 17
her evidence has categorically stated that her investigation
revealed that the victim was fourteen years old at the time of the
incident. The documents exhibited by the Prosecution have not
been decimated in cross-examination. The victim delivered the
child on 04-11-2016. The cross-examination of the victim before
the Learned Trial Court does not demolish this fact. It is seen
Crl. A. No.11 of 2023 3
Karma Loday Lepcha alias Kancha vs. State of Sikkim
from the records that the Learned Trial Court has rather carelessly
framed charges against the Appellant by stating inter alia as
follows;
.................................................................
“
Firstly:- That you, during and around January-
th
February, 2015 and even thereafter, at 10 Mile,
Lxxxxxx-Nxxxxxx, East Sikkim repeatedly committed
penetrative sexual assault on the minor victim, then
aged about 11 years(you used to insert your penis
into her vagina repeatedly) and you thereby
committed an offence of aggravated penetrative
sexual assault under Section 5(l) of the Protection of
Children from Sexual Offences Act, 2012(In short,
) which is punishable under
“the POCSO Act, 2012”
Section 6 of the said Act and within the cognizance of
this Court;
Secondly:- That you, during and around
th
January-February, 2015 and even thereafter, at 10
Mile, Lxxxxxx-Nxxxxxx, East Sikkim(repeatedly)
committed penetrative sexual assault on the minor
victim, who was then below 12 years of age(you used
to insert you penis into her vagina repeatedly) and
you thereby committed an offence of aggravated
penetrative sexual assault under Section 5(m) of the
POCSO Act, 2012 which is punishable under Section 6
of the said Act and within the cognizance of this
Court;
.................................................................
”
(emphasis supplied)
There is no evidence whatsoever on record that the minor
victim was eleven years at the time of the incident. This ought to
have been evident to the Learned Trial Court even from a bare
perusal of the FIR in which it is reported that the fourteen year old
daughter of the Complainant had been sexually assaulted. It is a
revelation of the egregious act of the Learned Trial Court with nary
a care to detail, when matters under the POCSO Act have to be
considered with utmost sensitivity to prevent miscarriage of justice.
(i) The records before this Court also reveal that in Exhibit
2 which is a form for recording statement of the victim, it is
recorded as follows;
..........................................................................
“
The statement of Sharmila Subba aged about 14
years, taken on oath solemn affirmation before me
Crl. A. No.11 of 2023 4
Karma Loday Lepcha alias Kancha vs. State of Sikkim
, Chief Judicial Magistrate, East Sikkim, at
…………………
Gangtok, on this the 09 th day of June, 2015.
..........................................................................
”
(emphasis supplied)
Here is another glaring example of carelessness employed by
the concerned Judicial Officer of the Learned Trial Court while
recording the dates, when it is apparent that the FIR itself was
lodged only on 01-06-2016, it is unfathomable as to how the
Learned Magistrate could have reco -06-
rded the statement on “09
Although, this is not the concern in this Appeal
2015”.
nevertheless it is pointed out for the reason that the Learned Trial
Court has to be vigilant and conscientious when carrying out
judicial works.
5. Be that as it may, having meticulously examined all
documents and evidence on record, we have reached the inevitable
finding that the victim was above twelve years when the offence
was committed on her and this in fact is the finding of the Learned
Trial Court in Paragraph 26 of the assailed Judgment.
6. In such circumstances, it concludes that the Learned
Trial Court was in error in convicting the Appellant under Section
5(m) of the POCSO Act, 2012, punishable under Section 6 of the
same Act.
(i) We accordingly, set aside the conviction of the
Appellant under Section 5(m) of the POCSO Act, 2012, punishable
under Section 6 of the same Act.
7. The Judgment and Order on Sentence of the Learned
Trial Court stands modified to the above extent.
(i) The rest of the Judgment and Order on Sentence
warrants no interference.
8. With the above observation, the Appeal stands
disposed of.
Crl. A. No.11 of 2023 5
Karma Loday Lepcha alias Kancha vs. State of Sikkim
9. Copy of this Judgment be forwarded to
the Learned Trial Court for information, along with all records
received.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
21-02-2024 21-02-2024
Approved for reporting : Yes
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