COURT NO.1
HIGH COURT OF SIKKIM
Record of Proceedings through Video Conferencing
CRL. L.P. No. 11/2019
STATE OF SIKKIM PETITIONER (S)
VERSUS
DIPEN SUBBA RESPONDENT (S)
For Petitioner : Mr. Sudesh Joshi, Public Prosecutor.
Mr. Thinlay Dorjee Bhutia, Addl. Public Prosecutor.
For Respondent : Mr. B.K. Gupta, Legal Aid Counsel.
Mr. Dipen Subba, Respondent-in-person through
V.C.
Date: 25/08/2021
CORAM :
HON'BLE MR. JUSTICE JITENDRA KUMAR MAHESHWARI, CJ.
HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, J.
...
PER J.K. MAHESHWARI, CJ
Seeking leave against the Judgment dated 30.10.2018, passed by the Fast
Track Court, East and North Sikkim at Gangtok in Sessions Trial (FT) Case No.
01/2017 acquitting the accused from the charge under Section 376 (2) (j) and
(l) of the Indian Penal Code, 1860, for short, IPC. This petition has been
preferred under Section 378(3) of the Code of Criminal Procedure, 1973, for
short, CrPC.
Indeed it is true that the prosecutrix is a deaf and dumb woman, aged
about 50 years, and she has stated about commission of rape with her by the
accused. But, as discussed by the Trial Court in paragraphs 35 and 36, it is clear
that she is unable to answer any of the questions as put forth to her. However,
the Court decided that her sole testimony is not safe to rely and to convict the
accused. Considering the aforesaid, it is decided to corroborate the allegation of
commission of rape. In this sequel the statement of PW-3 has been testified for
the allegation as alleged being an eye witness.
COURT NO.1 HIGH COURT OF SIKKIM Record of Proceedings through Video Conferencing
The Court referred the statement of PW-3 in paragraphs 37 and 38 and
recorded the finding in paragraph 39 of the judgment that her evidence cannot
be taken as an evidence of an eye witness, more so, it is observed that there is
no allegation in the testimony of PW-3 regarding the penetrative sexual assault.
In addition to the aforesaid, we have also seen the medical and scientific
evidence that too are not supporting the case of prosecution proving the guilt
and to prove the charge on the accused. In absence thereto, we are unable to
accept the contention of learned Public Prosecutor pressing upon to grant the
leave.
After perusal of the findings recorded by the learned Trial Court and
evidence of the witnesses, we are satisfied that the findings so arrived at, is
based on due appreciation of the evidence which do not warrant any
interference. In view of the foregoing observation, Leave as prayed for, in this
petition is refused.
Accordingly, this Criminal Leave Petition stands dismissed.
Judge Chief Justice jk/avi
