Sikkim HC Upholds POCSO Conviction for Assault on 3-Year-Old, Directs Concurrent Sentences and Confirms Rs 4 Lakh Compensation

The Sikkim High Court dismissed an appeal against conviction under Sections 5(m) and 5(n) of the POCSO Act, directing concurrent sentences and confirming victim compensation of Rs 4 lakh under the Sikkim Compensation to Victims Scheme, 2021.

The High Court of Sikkim at Gangtok has dismissed the criminal appeal filed by Subash Gazmer, a convict found guilty of aggravated penetrative sexual assault on a child who was three years and eight months old at the time of the offence. The Division Bench of Justice Meenakshi Madan Rai and Justice Bhaskar Raj Pradhan, with the judgment authored by Justice Bhaskar Raj Pradhan, found no reason to disturb the findings of the Special Judge (POCSO Act, 2012) at Gangtok. The bench directed that the sentences under Sections 5(m) and 5(n) of the Protection of Children from Sexual Offences Act, 2012 shall run concurrently, and confirmed a compensation of Rs 4,00,000 to the victim under the Sikkim Compensation to Victims (or their Dependents) Scheme, 2021.

The Conviction Before the Special Court

The case originated from an FIR lodged on 13 July 2020 by the victim's father (PW-3) after he saw the victim returning home with her clothes in her hand. He alleged that the appellant — a relative — had raped his daughter at the appellant's house. The appellant was arrested the same day. The victim was also medically examined on 13 July 2020 by the Medical Officer (PW-6), who found the child's hymen ruptured, blood stains present, and a fresh tear at the 6 o'clock position in the vagina. The Medical Officer opined that the injuries corresponded to forceful sexual intercourse.

The victim named the appellant in her statement recorded under Section 164 of the Code of Criminal Procedure, 1973 on 16 July 2020. In her deposition before the trial court, she described the appellant making her lie on the bed, removing their clothing, climbing on top of her, and touching her vagina from outside. The victim's mother (PW-4) deposed that on returning home from work, the victim told her the appellant had lured her with biscuits, taken her to his house, and committed the act.

The victim's date of birth was established as 25 October 2015 through her birth certificate (exhibit-3), corroborated by the depositions of both parents. The Special Judge convicted Gazmer under Sections 5(m) and 5(n) of the POCSO Act by judgment dated 24 August 2023, with the order on sentence following on 28 August 2023. Gazmer, then aged about 33 years and a resident of Dochum, Sirwani, District Gangtok, was lodged at Rongyek Jail.

Arguments on Appeal

Before the Division Bench, the Legal Aid Counsel for the appellant, Mr. Thupden Youngda, challenged the medical evidence. He argued that the Medical Officer had not mentioned the exact age of the tear on the victim's body; that the victim had not complained of pain; that such injuries could be caused by rigorous exercise; that swelling on the labia minora could result from allergy or infection; and that the Medical Officer could not say with certainty that the victim was subjected to sexual assault without a forensic expert's report. On this basis, counsel submitted that rape had not been established.

The Additional Public Prosecutor, Mr. Yadev Sharma, appearing with Assistant Public Prosecutor Mr. Sujan Sunwar for the State, submitted that the impugned judgment was correct and required no interference. The prosecution had proved beyond reasonable doubt that the victim was below 12 years of age, that the appellant had committed penetrative sexual assault upon her, and that the victim was related to the appellant.

How the Division Bench Reasoned

The bench examined the consistency of the prosecution case from the time the FIR was lodged through trial. It observed that the allegations against the appellant had remained consistent throughout, and there had never been any doubt that it was the appellant who was accused.

On the medical evidence, the bench held that the prosecution had not failed to establish rape merely because the Medical Officer had not indicated the age of the injury. The medical findings — ruptured hymen, blood stains, and fresh vaginal tear — were described as glaring and clearly establishing rape. The bench agreed with the Special Judge's reasoning that although the Medical Officer had acknowledged other possible causes for such injuries, in the present context the injuries could only be attributed to vaginal penetration by the appellant.

The bench found that the medical evidence corresponded to the victim's own statement, making it evident that the appellant had penetrated the victim's vagina to an extent that caused injuries. On the question of identification, the bench saw no reason to doubt the victim's identification of the appellant as the perpetrator. The minor contradictions and inconsistencies pointed out in the prosecution witnesses' evidence were held not to disturb the core of the prosecution case.

The victim's age was not in dispute. Her birth certificate, corroborated by both parents' depositions, placed her date of birth at 25 October 2015, making her three years and eight months old at the time of the offence on 13 July 2020 — well below the 12-year threshold that attracts the aggravated offence provisions under Sections 5(m) and 5(n) of the POCSO Act. The appellant's relationship to the victim as a relative further attracted the aggravated category under Section 5(n).

Outcome

The Division Bench dismissed the appeal and upheld the conviction. It directed that the sentences under Sections 5(m) and 5(n) of the POCSO Act shall run concurrently. The compensation of Rs 4,00,000 recommended to be awarded to the victim in terms of Schedule-II of the Sikkim Compensation to Victims (or their Dependents) Scheme, 2021 was confirmed. The bench directed that a copy of the judgment along with the trial court records be remitted forthwith.