Sikkim High Court

Sikkim High Court: In an appeal filed by the convict challenging the judgment and conviction order of the Trial Court, wherein the Court sentenced him to undergo rigorous imprisonment for 20 years and Rs. 5000/- fine under Section 5(m) punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’), the Division Bench comprising of Bhaskar Raj Pradhan and Meenakshi Madan Rai* JJ., dismissed and disposed of the appeal and upheld the Trial Court’s judgment, noting that material discrepancies and a delay in lodging the First Investigation Report (‘FIR’) should not be grounds to throw out prosecution in cases of sexual offences.


The victim aged about 5 years at the time of commission of the offence came home crying and narrated to his father that the convict had lured him into his house with a promise of sweets, following which he confined the victim in a room and sexually assaulted him. . An FIR was lodged under Section 363 of the Penal Code, 1860 (‘IPC’) read with Sections 4 and 6 of the POCSO Act. The convict t claimed that he merely struck the victim for damaging the bamboo supports for the beanstalks in his kitchen yard.

The convict challenged his conviction on three grounds, which were: first, he argued that there was an inexplicable delay in the lodging of the FIR; second, the convict claimed that the offence was impossible to have been committed due to the proximity of his house to the road; finally, he argued that there were inconsistencies in the evidence presented, hence, the prosecution’s case could not have been proven beyond reasonable doubt. A contention to the absence of concrete proof regarding the victim’s age at the time of commission of the offence was also raised.

Analysis, law and decision

The Court stated that thedelay in the lodging of the FIR does not vitiate the prosecution’s case. Therefore, the Court rejected argument pertaining to delay of lodging the FIR while referring to the case of State of Himachal Pradesh v. Prem Singh, (2009) 1 SCC 420, where the Supreme Court held that the delay in lodging an FIR in cases of sexual assault should not be compared to lodging of FIR pertaining to other offences, as it would be ill-founded to throw out the prosecution’s case merely on this ground.

Additionally, the Court rejected the argument of impossibility as to the occurrence of the offence by stating that no evidence regarding the presence of pedestrians on the footpath and no investigation pertaining to whether sounds or screaming from inside the house were audible outside the house was conducted.

After referring to Kuriya v. State of Rajasthan (2012) 10 SCC 433, wherein, the Court had stated that 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, the Court said that inconsequential discrepancies which do not discredit the case of the prosecution should be ignored.

The Court further upheld the finding of the Trial Court that the victim’s age was proven by the ossification test.

Hence, the Courtrejected all the contentions of the convict and opined that the prosecution’s case was established beyond all reasonable doubt following which they found no reason to differ from the findings of the Trial Court.

Thus, the Court upheld the impugned judgment and order of the Trial Court.

[Phurba Lepcha v. State of Sikkim, 2024 SCC OnLine Sikk 35, decided on 05-06-2024]

*Judgment Authored by: Justice Meenakshi Madan Rai

Advocates who appeared in this case:

For the appellant: Dewen Sharma Luitel, Advocate

For the respondent: Yadev Sharma, Additional Public Prosecutor

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