Crl. A. No. 17 of 2015

Decided On: 23.06.2017

Appellants: Indra Kumar Pradhan Vs. Respondent: State of Sikkim

Hon'ble Judges/Coram:
Meenakshi Madan Rai


Meenakshi Madan Rai, J.

1. Being aggrieved with the Judgment of Conviction and Order on Sentence, both dated 31.08.2015, in S.T. (POCSO) Case No. 04 of 2015, State of Sikkim v. Indra Kumar Pradhan, passed by the learned Special Judge, Protection of Children from Sexual Offences Act, 2012 (for short "POCSO Act'), East Sikkim at Gangtok, this instant Appeal has been preferred.

2. By the impugned Judgment, the Appellant was convicted under Section 10 of the POCSO Act and thereafter by the impugned Order sentenced to undergo Simple Imprisonment for five years with a fine of Rs. 5000/- (Rupees five thousand) only, and a default Clause of imprisonment, duly setting off the incarceration period already undergone.

3. In Appeal, it is contended by learned Senior Counsel for the Appellant, that, the FIR is an afterthought, as evident from its belated filing on 21.10.2014, whereas the incident allegedly occurred at 11 a.m. on 14.9.2014. That, the evidence furnished by the Prosecution witnesses have to be considered with caution, as the evidence of P.W.-1, P.W.-2, P.W.-3 and P.W.-8 are fraught with contradictions. As per P.W.-2, although the Appellant had sexually assaulted her twice, she did not recall the dates. P.W.-3 stated that the Victim P.W.-2, had told her that the Appellant had fondled her private part. To the contrary, P.W-8 stated that P.W.-3 informed him that, the Appellant had made P.W.-2 fondle his genital. That, as per P.W.-1, P.W.-2 alleged that the Appellant had sexually assaulted her on two occasions, the previous occasion being two days prior to 21.10.2014, as mentioned in Exhibit-1, her Report. That, this is at variance with the information in Exhibit-2, which alleges that the Victim had been assaulted on 14.9.2014. Therefore, the question of the child being molested two days prior to 21.10.2014 is false, as no one has complained of or furnished such evidence. The contradictions are, thus, fatal and indicate that the incident had not occurred and Exhibit-7 was lodged on the instigation of P.W.-4 and P.W.-5. That, no explanation was afforded for the belated FIR or why it was forwarded to the Magistrate on 22.10.2014, although lodged on 21.10.2014. To bolster his submissions with regard to the delayed lodging of the FIR, reliance was placed on Md. Ali alias Guddu v. State of U.P. MANU/SC/0229/2015 : 2015 CRI L.J. 1967 and on Marudanal Augusti v. State of Kerala MANU/SC/0170/1979 : AIR 1980 SC 638. That, P.W.-4 and P.W.-5 were extraordinarily enthusiastic in assisting P.W.-8, which raises a doubt about their motives as P.W.-4 and P.W.-5 had acrimonious relations with the Appellant. P.W.-5 had scribed the FIR, while P.W.-4 accompanied P.W.-1 and the Victim for the medical examination, out of vengeance against the Appellant. This is revealed in the response of the Appellant, to Question 46 of the Section 313 Cr.P.C. Statement, where he stated that P.W-4's tenant had beaten up his (Appellant's) physically challenged brother, against which the Appellant had lodged a Complaint at the Rhenock Police Station. While P.W.-5, who lives near his house, had constructed a toilet near his kitchen, giving rise to a quarrel, on which P.W.-5 had threatened reprisal. That, the occurrence of the incident is improbable as the Appellant's wife was admittedly washing utensils in front of the shop. That, there are anomalies regarding the amount of money P.W.-2 had carried to the shop, which according to her was Rs. 100/- (Rupees one hundred) only, while as per P.W.-3, it was Rs. 10/- (Rupees ten) only. Thus, the case of the Prosecution fails to inspire confidence and the Judgment and Order on Conviction of the learned Trial Court deserves be set aside.

4. Rebutting the aforesaid arguments, learned Additional Public Prosecutor contended that, the delay in lodging the FIR has been sufficiently explained by the evidence of P.........