Decided on April 20,2021



MEENAKSHI MADAN RAI,J. - (1.) The Appellant is aggrieved by the impugned Judgment and Order on Sentence, both dated 26.02.2020, of the Learned Special Judge, Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO Act'), West Sikkim at Gyalshing, in Sessions Trial (POCSO) Case No.09 of 2019 (State of Sikkim v. Maheshwar Singh), by which the Appellant was convicted for the offence under Section 354A(1)(i) of the Indian Penal Code, 1860 (for short, 'IPC') and sentenced to undergo Rigorous Imprisonment for a period of one year and six months and to pay a fine of Rs.25,000/- (Rupees twenty five thousand) only. No default clause of imprisonment is reflected.
(2.) Before this Court, Learned Senior Counsel for the Appellant advanced the argument that Exhibit 3, the First Information Report (for short, 'FIR') is suspicious as there are unexplained subsequent insertions on it pertaining to the age of the victim and the period of offence. As per Exhibit 3, the offence purportedly took place between June, 2018 to May, 2019 but the Charge specifies the date of offence as '28.05.2019' on which date the Appellant was on Casual Leave, hence the alleged offence cannot be foisted on him. Exhibit 5, the Medical Report of the victim reveals no injuries on her person while the evidence of P.W.20 is unreliable as he bore animosity towards the Appellant having been caught cheating in Class by the Appellant when he was a Student. P.Ws.13, 14, 17 and 18 are four close friends of the victim and therefore interested witnesses, rendering their evidence unreliable. P.Ws.14 and 15 are minor witnesses whose competence to testify was not considered by the Learned Trial Court. P.Ws.2 and 4, the parents of the victim neither witnessed the incident nor were they informed of it by the victim, as their evidence is hearsay it ought to be ignored. That, the Prosecution alleges that Minutes were drawn up after a Meeting took place between the Teachers, victim's parents, the victim and her friends following the incident. The Minutes being unavailable in the records casts doubts on such a Meeting having been convened. P.W.21, the Investigating Officer (for short, 'I.O.') failed to explain this shortcoming. The Attendance Register of 28.05.2019 has also not been submitted by the Prosecution to fortify the presence of the victim in School on that day. P.W.4 was disinterested in the matter as reflected in the evidence of the School Principal, P.W.10 and the delay in lodging the FIR is unexplained. On this count, reliance was placed on Mohd. Ali alias Guddu v. State of Uttar Pradesh (2015) 7 SCC 272 and Rajesh Patel v. State of Jharkhand (2013) 3 SCC 791. The Scribe of the FIR was not examined making the contents suspicious. That, the victim falsely implicated the Appellant as she was weak in Physics, the Appellant's subject and his constant monitoring irked her. That, the victim having earlier obtained the benefits of compensation in a POCSO matter is attempting to obtain an identical benefit herein. That, the Learned Trial Court failed to appreciate the evidence in its proper perspective and erroneously convicted the Appellant. Hence the impugned Judgment and Order on Sentence be set aside.
(3.) Vehemently repudiating the arguments set forth by Learned Senior Counsel for the Appellant, Learned Assistant Public Prosecutor contended that the evidence of P.Ws.13, 14, 17 and 18, colleagues of the victim duly corroborate her evidence pertaining to the Appellant's conduct towards her. The victim has revealed that he was luring her with the promise of good marks and under such guise, touching her inappropriately. P.W.20, a Teacher of the School, who was informed about the incident, substantiated the Prosecution case. That, the delay in lodging of the FIR was on account of the victim harbouring the anxiety that it would adversely affect her studies, the Appellant having threatened to give her low marks. Such threat held out is corroborated by the evidence of P.Ws.7, 11 and 12. The other reason for the delay was that on her complaint at the Parent Teacher Meeting of her inability to understand the Appellant's teaching, the School authorities had leaned in his favour, therefore, she assumed that they would take a similar stand. The emotional and mental trauma on account of the conduct of the Appellant towards her was another relevant issue for the delay. That, it is now settled law that delay in lodging the FIR in such matters ought not to adversely affect the Prosecution case. To buttress this submission, reliance was placed on the Judgment of this High Court in Lakhi Ram Takbi v. State of Sikkim 2019 Cri.LJ 2667. That, it is unexplained as to why the Students used to be called individually to the Physics Laboratory by the Appellant if he was taking classes. That, non-filing of the Minutes of the Meeting does not adversely affect the Prosecution case as the persons who were present at the Meeting have been duly examined as witnesses and have supported the Prosecution case. That, the admission of the Appellant that he had touched the victim inappropriately was buttressed by the evidence of P.W.10. The Appellant's family made concerted efforts through cell phone calls to amicably compromise the matter which was refused by the victim. That, the victim has given consistent evidence and minor discrepancies, if any, will not affect the Prosecution case. To fortify this submission, reliance was placed on Vijay alias Chinee v. State of Madhya Pradesh (2010) 8 SCC 191. That, it is now well established that a Teacher should be like a parent and not harass the Student, this submission was buttressed by the ratio in State of Sikkim v. Sashidhar Sharma (2020) 209 AIC 635 (SIK.H.C.). That, outraging modesty is a heinous crime, as laid down by the Hon'ble Supreme Court in Ajahar Ali v. State of West Bengal (2013) 10 SCC 31. Hence, the Learned Trial Court was justified in convicting and sentencing the Appellant, accordingly the Appeal merits a dismissal.;

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