Sikkim High Court: A Division Bench of Meenakshi Madan Rai and Bhaskar Raj Pradhan, JJ. partly allowed the present appeal wherein a teacher sexually assaulted his minor students.
Appellant was tried, convicted and sentenced to imprisonment for offences of rape, aggravated penetrative sexual assault and for assault on the minor victim a schoolgirl with intent to outrage her modesty.
Judgment of conviction and sentence order have been challenged in the present appeal.
During the investigation, minor victim was examined and it was found that her breast nipples were swollen and her hymen was not intact and it admitted one finger coupled with tenderness and foul smell. Thus, Dr Rozeela Bhutia opined in her medical report that there was clinical evidence of sexual assault.
Minor victim identified the appellant as Kendrap Sir who used to teach them Mathematics and Hindi when she was in the 4th and 5th standards. She deposed that on two occasions, the appellant put his finger in her pisab garne (vagina). She deposed that on five occasions he put his hands on her chest/breasts in the classroom of the school. She also deposed about the appellant sexually abusing other schoolgirls.
Bench observed that,
It may be possible to get confused at such a tender age about which act was committed on which schoolgirl but near impossible for a schoolgirl to forget how she was sexually abused that too by her own teacher.
Section 375(b) IPC provides that insertion of a finger (a part of the body) into the vagina amounts to rape.
Court stated that it is inclined to uphold appellant’s conviction under Section 376(2)(f)(i) and (n) of the Penal Code, 1860.
Thus in view of the above terms, sentences under Sections 9(f), 9(l) and 9(m) of the POCSO Act are upheld.
In terms of Section 42 of the POCSO Act, the appellant is not liable to be punished for the offences under Sections 5(f), 5(l) and 5(m) of the POCSO Act. Accordingly, the appellant’s sentences under Section 5 of the POCSO Act are set aside.
Keeping in mind all the relevant considerations including the age of the appellant, Court held that sentence of 10 years and fine of Rs 50,000 for the above offences would be sufficient for the ends of justice. Appellant has been sentenced to 7 years of simple imprisonment and a fine of Rs 40,000 each for the offences under Sections 9(f), 9(l) and 9(m) of the POCSO Act.
Thus the appeal is partly allowed. [Kendrap Lepcha v. State of Sikkim, 2020 SCC OnLine Sikk 40 , decided on 01-06-2020]