SIKKIM HIGH COURT ISSUES JUDGEMENT ON DHAN KUMAR CHETTRI V/S STATE OF SIKKIM

GANGTOK, India, June 25 -- Sikkim High Court issued the following judgment/order on June 9:

The appellant was convicted and sentenced under section 3(b) of the Protection of Children from Sexual Offences Act, 2012 (for short, the POCSO Act) punishable under section 4 thereof. He was not punished for the same offence under section 9(l) and 9(m) punishable under section 10 of the POCSO Act and under section 354 of the Indian Penal Code, 1860 (for short, the IPC). The appellant was acquitted for the charge under section 3(a) punishable under section 4 and under section 5(l) and 5(m) punishable under section 6 of the POCSO Act, 2012 and under section 376- AB, 376(2)(n) of the IPC.

2. The FIR was lodged on 15.04.2020 against the appellant under section 354 of the IPC and section 8 of the POCSO Act on a complaint made by the victim's mother (PW-2). After the charge-sheet was filed, the learned Special Judge framed eleven charges under sections 3(a), 3(b), 5(m), 5(l), 9(l), 9(m) of the POCSO Act and under sections 376-AB, 376(2)(n) and 354 of the IPC. The appellant pleaded not guilty and claimed trial. During the trial, the prosecution examined twelve witnesses including Tara Sharma (PW-12)- the Investigating Officer. The appellant's statement under section 313 Cr.P.C. was recorded on 12.07.2023 when he stated that he was not aware of or that the circumstances against him were not true. He claimed to be innocent and falsely implicated.

3. The learned Special Judge examined the evidence and concluded that the deposition of the victim was corroborated by the medical evidence as well as the evidence of the victim's mother (PW-2), the appellant's friend (PW-4) and the landlord (PW-7).

4. Heard Mr. R.C. Sharma, learned Counsel for the appellant. He contends that the evidence of the victim is unreliable as the victim's mother (PW-2) gave a different version of the incident. He also contends that although the learned Special Judge convicted and sentenced the appellant under section 3(b) of the POCSO Act for penetrative sexual assault, the medical evidence does not support the victim's version. On the other hand, the learned Additional Public Prosecutor supported the impugned judgment submitting that the victim's deposition is cogent and reliable. The victim's deposition according to him is corroborated by the depositions of PW-3, PW-4, PW-5, PW-8, PW-9 and PW-11.

5. Although, the learned Counsel for the appellant did not raise the issue of minority of the victim, we find that the deposition of the victim's mother (PW-2) and of the victim about her minority was not questioned by the defence during the trial. The victim's mother (PW-2) also deposed that she had lost the victim's birth certificate. As such, we confirm the finding of the learned Special Judge about the minority of the victim based on the deposition of the victim's mother (PW-2) as well as the ossification test report (exhibit P-3) conducted by Dr. Kharananda Sharma (PW-6) who opined that based on the X-rays done on the victim, he was of the opinion that the bone age of the minor victim was between 7 to 10 years on the date of her examination on 15.05.2020.

6. The FIR (exhibit P-1) lodged on 15.04.2020 by the victim's mother (PW-2) narrates the sequence of events leading to the commission of the offence exactly as she deposed before the Court on 28.09.2022. The appellant was known to the victim's mother (PW-2) as well as the victim. Both identified the appellant in Court. The victim had deposed that she had gone to the house of the appellant on the relevant day. During the night, the appellant slept beside her and his son. At night he inserted his finger into her anus. She came out of the room and sat on the staircase where she met one 'uncle'. She told him about the incident. Many people gathered. Police also arrived and took the appellant.

7. The appellant questions the truthfulness and the veracity of the victim's statement. Nothing substantial to demolish the prosecution version was brought out during her cross-examination. The victim's deposition is substantially corroborated by the victim's mother in her deposition as well as by the FIR (exhibit P-1) lodged on 15.04.2020 on the basis of the recorded statement of the victim's mother (PW-2). It is true that the FIR (exhibit P-1) records that the victim had informed the victim's mother (PW-2) that while she was asleep the appellant had touched her 'pisab garne' at the first instance and when she went to a different side to sleep, he again came and did the same thing. This statement of the victim to her mother is slightly different to the deposition of the victim when she said that the appellant had inserted his finger into her anus. However, we find that the defence did not confront the victim as well as the victim's mother (PW-2) on this aspect. The discrepancy is explainable as the FIR was not lodged by the victim but by her mother.

The rest of the document can be viewed at https://hcs.gov.in/hcs/hg_orders/202100000312023_6.pdf

Disclaimer: Curated by HT Syndication.