Hem Kumar Chettri vs State Of Sikkim
2021 Latest Caselaw 88 Sikkim

             THE HIGH COURT OF SIKKIM : GANGTOK
                                 (Criminal Appeal Jurisdiction)

                               DATED : 10th December, 2021
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  DIVISION BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
                   THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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                                   Crl.A. No.06 of 2021
                  Appellant                :        Hem Kumar Chettri
                                                        versus

                  Respondent               :        State of Sikkim

                           Appeal under Section 374(2) of the
                           Code of Criminal Procedure, 1973
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            Appearance
                Mr. Gulshan Lama, Advocate (Legal Aid Counsel) for the
                appellant.

                Mr. Thinlay Dorjee Bhutia and Mr. Yadev Sharma, Additional
                Public Prosecutor with Mr. Sujan Sunwar, Assistant Public
                Prosecutor for the respondent.
          --------------------------------------------------------------------------------------
                                    JUDGMENT

Meenakshi Madan Rai, J.

[1] The Appellant, aged about 40 years, is alleged to

have raped the victim, aged about 79 years, on 15.12.2019, at

around 12 p.m. On 16.12.2019, at 1.30 p.m., the victim was

medically examined and the Doctor found that she was bleeding

from her genital. Charge-Sheet was submitted against the

Appellant under Sections 376/457/506 of the Indian Penal Code,

1860 (for short, the "IPC"), on completion of investigation by

P.W.11, the Investigating Officer of the case.

[2] Learned Counsel for the Appellant before this Court

submitted that on account of the inconsistency of the victim‟s

statement the offence would fall under Section 354 of the IPC

and not under Section 376(2)(l) of the IPC. While asserting that

Hem Kumar Chettri vs. State of Sikkim

the Appellant was not guilty of the offence of rape it was urged

that the sentence of imprisonment imposed by the Learned Trial

Court for the offence of rape extending to 15 years be reduced

to 10 years, i.e., the minimum period prescribed by the

provision, should it be found by this Court that the offence was

indeed committed. That, mitigating circumstances exist for such

reduction, viz., the Appellant is married and has two children

both of whom are studying and are financially dependent on him.

His wife is a home-maker and on account of his incarceration his

entire family is financially dependent on his aged father. Reliance

was placed on State of Himachal Pradesh vs. Nirmala Devi1 and it

was contended that the philosophy of sentencing is undergoing

change and should not be confined to deterrence, other aspects

such as mental health and mitigating circumstances ought to be

taken into consideration. The attention of this Court was drawn

to the Judgment of the Hon‟ble Supreme Court in Rai Sandeep

alias Deepu vs. State (NCT of Delhi)2 and it was canvassed that the

victim has not specifically stated that the offence of rape was

perpetrated on her, she has merely stated that "izzat bezzat

garyo". The words employed by her do not indicate rape and

would at the most constitute an offence under Section 354 of the

IPC. That, the Prosecution had also failed to prove that the

offence was one under Section 376(2)(l) of the IPC as no

medical report was furnished by it to establish that the victim

was physically challenged as stated by her in her evidence.

Hence, the assailed Judgment and Order on Sentence be set

aside and the Appellant acquitted of the offence charged. In the

(2017) 7 SCC 262

(2012) 8 SCC 21

Hem Kumar Chettri vs. State of Sikkim

alternative the offence reduced to one under Section 354 of the

IPC. However, he be found guilty of the offence under Section

376 of the IPC, the sentence be reduced as prayed.

[3] Per contra, it was the argument of the Learned

Additional Public Prosecutor that there is no question of the

evidence of the victim being inconsistent. That, there was no eye

witness to the incident and P.W.2 has been categorical and

consistent in her claim that the Appellant committed the offence.

That, the evidence of P.W.4 reveals that she had heard the

victim shouting on the night of 15.12.2019, which was the night

of the incident and the next morning she found the victim in the

kitchen with her mother-in-law. The victim then told her that she

had shouted for help the whole night but, P.W.4 had not woken

up. P.W.5, mother-in-law of P.W.4 and the victim had in fact

gone to the house of the Appellant to inform his parents of the

incident and to the house of one "D.B. Police", the same night to

lodge a complaint but returned as he was not at home. The

victim had also told P.W.4 that the Appellant had sexually

assaulted her. That, P.W.5 also clearly supported the Prosecution

case. Her evidence revealed that P.W.2 had approached her at 1

p.m. the same night of the incident and she along with the

victim had gone to the house of one "D.B. Police" and also to the

house of the Appellant, thereby fortifying the evidence of P.W.2.

The Learned Trial Court in its impugned Judgment at Paragraph

44 has reflected that the Defense Counsel at the time of

arguments admitted that the victim was physically challenged.

In light of these circumstances, the impugned Judgment requires

no interference and the appeal be dismissed.

Hem Kumar Chettri vs. State of Sikkim

[4] The Learned Counsel for the parties have been heard

and all the relevant documents perused as also the impugned

Judgment and Order on Sentence.

[5] The Appellant is aggrieved by the impugned

Judgment dated 18.02.2021, in S.T. (Fast Track) Case No.

01/2020 in the Court of the Learned Judge, Fast Track, South &

West Sikkim, at Gyalshing, whereby he was convicted of the

offence under Sections 376(2)(l) and 457 IPC. The assailed

Order on Sentence, dated 18.12.2021, incarcerated him as

follows;

"a. The convict shall undergo rigorous imprisonment for a term of fifteen years under Section 376(2) (l), IPC and shall pay a fine of Rs.10,000/- (Rupees Ten Thousand) only. In default of payment of fine, the convict shall undergo simple imprisonment for a term of one year.

b. under Section 457, IPC, the convict is sentenced to undergo rigorous imprisonment for a term of five years and to pay a fine of Rs.2,000/- (Rupees Two Thousand) only. In default of payment of fine, the convict shall undergo simple imprisonment for a term of six months.

c. Both sentences shall run concurrently."

[6] The Prosecution case summarized is that, on

16.12.2019, at 10.30 hours, the victim, P.W.2 lodged an oral

complaint before the Melli Police Station, reduced to writing by

the SHO, Melli Police Station (Exhibit 13). As per the victim, she

lives alone and that night when she retired to bed at around

00.30 hours after finishing her household chores she heard some

sounds. She saw her neighbour, the Appellant, breaking into her

room through the gap between the roof and the windows. He

turned off the light, disrobed her forcefully and sexually

assaulted her. After an hour, he threatened her and directed her

Hem Kumar Chettri vs. State of Sikkim

not to narrate the incident to anyone and that he would give her

money if required and then left her house. She immediately

went to the house of her nearest neighbour P.W.5, took her to

the house of the parents of the Appellant who offered her no

assistance. The next morning she lodged the Complaint.

[7] Pursuant to the lodging of Exhibit 13 investigation

into the matter was taken up and Charge-Sheet filed as detailed

hereinabove. The Learned Trial Court framed Charge against the

Appellant under Sections 376(2)(l), 457 and 506 of the IPC who

pleaded "not guilty" to the Charges and claimed trial. The

Prosecution thus examined 11 (eleven) witnesses to prove its

case, on closure of which the Appellant was examined under

Section 313 of the Cr.P.C. The final arguments of the parties

were heard thereafter and the Judgment and Order on Sentence

pronounced.

[8] While considering the evidence on record and the

merits of the Prosecution case, the word „inconsistency‟

employed by the Learned Counsel for the Appellant for

describing the evidence of P.W.2 appears to be a misnomer

considering that her evidence reflects no inconsistency at all.

She has deposed inter alia as follows;

".......................... On 15.12.2019 around midnight, while I was sleeping in my room, Hem Kumar Chettri entered my room through the ventilation. When I started screaming out for my neighbors, he told me not to shout and also put off light in my room Thereafter, he undressed me and pushed me down, got on top of me and raped me. He then told me "Mo Mamm Lai Kei Gardina" (I won‟t do anything to you). Everyone in the village calls me „Mamm" (Grandmother). I cried out for help but no one came and I got tired thereafter. After he committed rape, he left quietly."

Hem Kumar Chettri vs. State of Sikkim

[9] Her evidence-in-chief withstood the cross-

examination and could not be decimated. The evidence of P.W.2

regarding the occurrence of the incident is supported by P.W.4

and P.W.5 inasmuch as P.W.4 was told of the incident by the

victim P.W.2 and P.W.5 had accompanied P.W.2 to the house of

one "D.B. Police" after P.W.2 narrated the details of the incident

to her. P.W.5 was the witness who woke up to the knock on her

door by P.W.2 at around 1 a.m. of the night of the incident.

When she opened the door the victim told her "Hem Kumar lay

malai izzat bezzat garyo". The victim could not be more specific

than this to describe the offence. Her rustic background on

account of which she has used the above words cannot be

disregarded or the offence reduced to one under Section 354 of

the IPC merely on account of her inability to use the word „Rape‟.

The evidence of P.W.5 remained undecimated in cross-

examination. Exhibit 13 also lends credence to the evidence of

P.W.2.

[10] P.W.10 was the Medical Officer who examined P.W.2.

On her local examination he found the following;

"..................... There was no external injuries seen, No fresh injuries were noted in skin. Pubic hair present. Per vagina bleeding was present due to forceful penetration. The bleeding was fresh. Hymen also not intact due to forceful penetration.

This injury was also fresh." [emphasis supplied]

[11] His evidence thus revealed that the vaginal bleeding

of the victim was not due to any infection, but on account of

forceful penetration duly fortifying the evidence of the victim

P.W.2, thereby establishing the offence of rape committed by the

Appellant along with the offence under Section 457 of the IPC.

Even if no certificate of physical disability was furnished by the

Hem Kumar Chettri vs. State of Sikkim

Prosecution to prove the fact of disability of the victim it is

undisputed that she was around eighty years old, which itself

suffices to not only hold her testimony regarding the state of her

health as the truth but also to believe that she would at her age

not be physically agile. Besides, the Learned Trial Court has

recorded in Paragraph 44 of the impugned Judgment that the

Counsel for the accused had conceded to the claim of physical

disability of the victim, during the course of arguments. The

Learned Trial Court has also recorded the physical disability of

the victim was evident when the victim appeared before the

Court for recording her evidence.

[12] In light of the discussions which have emanated

hereinabove, we do not find any mitigating circumstance to

reduce the sentence imposed on the Appellant. We also find no

reason to interfere with the findings of the Learned Trial Court.

[13] The impugned Judgment and Order on Sentence are

upheld.

     [14]          Appeal dismissed.

     [15]          No order as to costs.

     [16]          Copy of this Judgment be transmitted forthwith to

     the Appellant in Jail.




         ( Bhaskar Raj Pradhan )                         ( Meenakshi Madan Rai )
                Judge                                           Judge
                    10-12-2021                                           10-12-2021




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