“‘Touch Was a Bad Touch’: Sikkim High Court Upholds Conviction of Man for Molesting Two Minor Girls ; Rejects Alibi as ‘Fails to Inspire Confidence’”
Sanchayita Lahkar
The High Court of Sikkim at Gangtok Single Bench of Justice Meenakshi Madan upheld the conviction of a thirty-one-year-old man accused of sexually assaulting two minor girls, aged nine and twelve respectively.
The Court dismissed the appeal filed by the accused under Section 374(2) of the Code of Criminal Procedure, 1973, affirming the findings of the Special Judge (POCSO Act, 2012), Gangtok. The Trial Court had convicted the appellant under Section 7 punishable under Section 8 and Section 9(m) punishable under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The appellant was sentenced to rigorous imprisonment for five years and seven years for the respective offences, along with a fine of Rs. 5,000 for each count, bearing default stipulations.
According to the FIR (Exhibit-3) filed by PW-3, the father of one of the victims, on July 3, 2021, at 0015 hours, the appellant sexually assaulted his minor daughter at their home on July 2, 2021. Subsequently, when another minor girl arrived at the residence, she too was assaulted. Upon completion of the investigation, a charge sheet was filed against the appellant under multiple provisions, including Section 10 of the POCSO Act.
The charges framed included offences under Section 9(m) punishable under Section 10, Section 7 punishable under Section 8, two counts under Section 11(i) punishable under Section 12 of the POCSO Act, and two counts under Section 354 of the Indian Penal Code, 1860. The accused pleaded not guilty, and the trial commenced, during which the prosecution examined thirteen witnesses including the Investigating Officer. The appellant was also examined under Section 313 Cr.P.C. and produced one defence witness (DW-1) to support his alibi.
The defence argued that the testimonies of the victims, PW-1 and PW-2, were contradictory and lacked reliability. It was submitted that PW-1 did not mention to PW-2 that the appellant had touched her, merely stating that he chased her. Contrarily, PW-2 deposed that the appellant grabbed her shoulder and touched her chest twice, and claimed that the same was done to PW-1. Additionally, the defence pointed out discrepancies, including PW-1 initially not mentioning certain facts but later telling PW-7 that the appellant touched her shoulder as well. The absence of Sxxxxxx didi, to whom the incident was first narrated by the victims, as a prosecution witness was also noted.
DW-1, presented as an alibi, testified that he and the appellant had been constructing a water channel together the entire day. The defence contended that the trial court wrongly rejected this evidence based on the non-examination of two other men allegedly present.
Furthermore, the appellant submitted that there was no proof of sexual intent and that neither medical evidence of the victims nor that of the appellant indicated sexual assault. On these grounds, the defence sought acquittal.
The Additional Public Prosecutor argued that the evidence of PW-1 and PW-2 was corroborated by PW-3 and PW-4, the victim's parents. The testimony of DW-1 did not confirm that the appellant was continuously present at the construction site, particularly around 1:00 p.m., the time of the alleged incident, when he was said to have left for lunch. Thus, the trial court’s conclusions were stated to be well-founded.
The High Court examined the case records, including the testimonies and the documentary evidence. It recorded that:
"PW-1 in no uncertain terms has stated that the Appellant put his hand on her body including her chest and her back and her cross-examination extracted the assertion that, it was not done by him in an affectionate manner. It was her categorical statement that the touch of the Appellant was a 'bad touch'."
Further, the judgment noted:
"PW-2 for her part substantiated the evidence of PW-1 that the Appellant appeared to be in an inebriated condition. The Appellant grabbed PW-2 by her shoulder and put his hand on her chest to which she responded by hitting him with her elbow. He nevertheless repeated the act and did the same to PW-1."
The Court found that both minor witnesses had provided credible and consistent accounts. It stated:
"I see no reason to doubt the evidence of the minor witnesses, besides the sexual intent is explicit from the body parts of the two minor girls, including their chest that the Appellant groped."
Addressing the discrepancies raised by the defence, the Court referred to the Supreme Court decision in Kuriya and Another vs. State of Rajasthan (2012) 10 SCC 433, stating:
"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."
On the defence witness, the Court observed:
"The evidence of DW-1 fails to inspire the confidence of this Court, to rely on it wholly, for the reason that the witness was admittedly not aware of the whereabouts of the Appellant the whole time that they were working."
The Court concluded that the minor inconsistencies did not affect the core of the prosecution’s case.
The High Court upheld the judgment and order on sentence dated November 29, 2023 and November 30, 2023 respectively, passed by the Special Judge (POCSO Act, 2012), Gangtok. The Court stated:
"I find no reason to differ with the findings of the Learned Trial Court in the impugned Judgment and consequently the Order on Sentence. Both are accordingly upheld."
The appeal was accordingly dismissed.
Advocates Representing the Parties:
For the Appellant: Mr. Safal Sharma, Advocate (Legal Aid Counsel)
For the Respondent: Mr. Shakil Raj Karki, Additional Public Prosecutor
Case Title: XXX vs. State of Sikkim
Case Number: Crl. A. No.05 of 2024
Bench: Justice Meenakshi Madan Rai
[Read/Download order]
