GANGTOK, India, June 25 -- Sikkim High Court issued the following judgment/order on June 19:

1. The Prosecution case commenced with the lodging of the FIR (Exbt P-1/PW-1) by PW-1, the uncle of the victim, alleging that on 07-02-2022, PW-2, his niece, the victim had gone for tuition. She called him up that evening from her friend's mobile to inform him that she would sleep over at her friend's house and return the next morning. When she failed to return the next morning, he set out to look for her. She was traced at 02.00 p.m., on 08-02-2022, near the town butchers shop. On enquiry from her, she reported that the Appellant had taken her to an abandoned building and raped her there.

(i) Charge-sheet was submitted against the Appellant under Section 376 of the Indian Penal Code, 1860 (hereinafter, the IPC) read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, the POCSO Act). The Appellant was charged under the aforementioned provisions of law by the Trial Court. On his having entered a plea of not guilty, the Prosecution examined ten witnesses to prove their case. The closure of the Prosecution evidence was followed by the examination of the Appellant under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter, the Cr.P.C.). He claimed innocence and stated that he was falsely implicated in the instant matter.

(ii) The Court of the Learned Special Judge (POCSO Act, 2012) Gangtok, Sikkim, on consideration and appreciation of the evidence on record, convicted the Appellant vide the impugned Judgment, dated 07-03-2024, in ST (POCSO) Case No.07 of 2022 (State of Sikkim vs. Dhiran Chettri) under Section 376(1) of the IPC. He was sentenced to undergo rigorous imprisonment for a term of ten years and to pay a fine of rs 2,000/- (Rupees two thousand) only, under Section 376(1) of the IPC with a default stipulation.

2. Assailing the said Judgment and Order on Sentence, Learned Counsel for the Appellant submitted that the narrative of PW-2, the victim, is fraught with improbabilities as the place from where the Appellant allegedly took her forcibly, requires him to have dragged her, a grown girl, through the streets of the crowded town, milling with people and taxis are parked along the road with drivers waiting for passengers. In such a circumstance, it is surprising that she did not cry out for help nor did people on the streets notice her distress. She was allegedly taken at 06.00 p.m. by the Appellant to the abandoned building but strangely left it at around 01.30 p.m., the next day, sans explanation as to why she continued to remain in the building after his departure the next morning or why she did not seek help. The evidence of the victim PW-2 and PW-6 her friend do not corroborate each other regarding the incident and the conduct of PW-2 and are in fact contradictory. The evidence of PW-7, the victim's cousin proves that the victim had gone of her own will with the Appellant. The victim's evidence of forcible sexual assault, contradicts the medical evidence as the doctor found no injuries on the person of the victim. It was urged that despite all of the aforementioned anomalies, the Court found the victim's evidence to be cogent and based the Appellant's conviction on it. The victim is in fact not a sterling witness and her evidence deserves to be disregarded. To buttress his submissions, Learned Counsel for the Appellant relied on Sushan Darjee (Hingmang) vs. State of Sikkim1 and Nirmal Premkumar and Another vs. State rep. by Inspector of Police2 .

3. Contesting the arguments advanced by Learned Counsel for the Appellant, Learned Additional Public Prosecutor stated that although the age of the victim was not proved, the fact that she was raped has not been decimated in the crossexamination of the victim, hence the Judgment and Order on Sentence warrants no interference.

4. We have heard the arguments advanced by Learned Counsel and carefully perused the documents, evidence on record, impugned Judgment and citations made at the Bar.

5. The Trial Court, vide the impugned Judgment framed two questions for determination - Whether on the night of 07-02- 2022, the accused committed penetrative sexual assault on the victim inside an abandoned building near Bhanu Park, at Singtam? If so, whether she is a minor within the meaning of Section 2(d) of the POCSO Act, 2012?

The rest of the document can be viewed at https://hcs.gov.in/hcs/hg_orders/202100000172024_6.pdf

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