THE HIGH COURT OF SIKKIM: GANGTOK
(Criminal Appellate Jurisdiction)
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DIVISION BENCH: HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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Crl. Appeal No. 01 of 2021
Lall Bahadur Rai,
S/o Guman Singh Rai,
R/o Lower Yangtey,
Kabirthang, West Sikkim,
(At present Rongyek Jail)
..... Appellant
Versus
State of Sikkim .....Respondent
An Appeal under Section 374 (2) of the Code of Criminal
Procedure Code, 1973.
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Appearance:
Mr. N. Rai, Senior Advocate (Legal Aid Counsel) and Mr.
Sushant Subba, Advocate (Legal Aid Counsel) for the
Appellant.
Ms. Pema Bhutia, Assistant Public Prosecutor for the State
Respondent.
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Date of hearing : 06.12.2021
Date of judgment : 15.12.2021
JUDGMENT
Bhaskar Raj Pradhan, J.
1. The appellant who was convicted by the learned Special
Judge and sentenced under sections 376(2)(f), 376(2)(n) of the
Indian Penal Code, 1860 (IPC) as well as under sections 5(j)(ii),
5(l) and 5(n) of the Protection of Children from Sexual Offences 2 Crl. Appeal No. 01 of 2021 Lall Bahadur Rai vs. State of Sikkim
Act, 2012 (POCSO Act) seeks to challenge his conviction and
sentence in the present appeal.
2. The learned Special Judge opined that the appellant had
committed aggravated penetrative sexual assault on his minor
step daughter, i.e., the victim.
3. The learned Special Judge held on examination of the
evidence of the father of the victim (PW-4), the principals of the
schools attended by the victim (PW-7 and PW-8) along with the
certificates issued by the principals regarding the victim's birth
(Exhibits-8 & 11), the school admission registers of both the
schools (Exhibits-9 & 12), that the victim was 17 years 6
months and 9 days old on 05.09.2018, when she was rushed to
the hospital and she delivered a still born baby. The learned
Special Judge did not rely upon the birth certificate (Exhibit-3)
as it was made in the year 2017 when the date of birth of the
victim was 24.02.2001 in spite of the fact that the Registrar,
Births and Deaths (PW-11) explained during his cross-
examination that there was provision for delayed registration
even after the requirement of registering the birth within 22
days. It is evident that the victim was a child during the time
when she was subjected to sexual violations by the appellant.
4. The learned Special Judge held that the evidence of the
victim, who had deposed that ever since the time she was in
class 2 the appellant had started committing penetrative sexual
assault on her and did so till September, 2018 was consistent
and clear. According to the victim (PW-1) she started living with 3 Crl. Appeal No. 01 of 2021 Lall Bahadur Rai vs. State of Sikkim
her mother and the appellant when she was a student of class
2. According to her, the appellant started committing
penetrative sexual assault on her since then till September,
2018. She could not tell anyone about it as the appellant used
to physically assault her mother which would scare her. The
victim further deposed that due to the commission of
penetrative sexual assault on her by the appellant she became
pregnant. She confirmed that her date of birth was 24.02.2001
and Exhibit-3 was her birth certificate. The victim stood by her
statement in spite of her cross-examination.
5. PW-2, the first informant, a co-villager of the victim, proved
that on 05.09.2018 the victim was seriously sick and taken to
the hospital by him along with the appellant and others where,
an hour later, she delivered a still born baby. As the victim was
unmarried and studying in class 12 he lodged the first
information report (Exhibit-4). The biological father of the victim
(PW-4) also confirmed this fact. He further deposed that the
victim was born in the year 2001.
6. Dr. Sabin Rai (PW-10), the Medical Officer of the District
Hospital, deposed that on 08.09.2018, he examined the
appellant and found that there was nothing to suggest that he
was not capable of performing sexual act. He further deposed
that on 05.09.2018, Dr. Shyamaldip Gurung medically
examined the victim in his presence and made the medical
report (Exhibit-18). PW-10 also proved Dr. Shyamaldip
Gurung's signature thereon stating that he was familiar with his 4 Crl. Appeal No. 01 of 2021 Lall Bahadur Rai vs. State of Sikkim
handwriting and his signature. He deposed that Dr. Shyamaldip
Gurung had left the hospital to pursue his post graduation.
7. The medical report of the victim (Exhibit-18) reflected that
the blood and hair samples of the still born child, the victim as
well as the appellant were collected and sent to CFSL, Kolkata
for DNA profiling, on consent. The report also reflected that the
still born baby was delivered by the victim.
8. On receipt of the forensic examination report (Exhibit-29)
dated 23.08.2019, the investigating officer (PW-13) filed
supplementary charge sheet and thereafter examined Dr. Kshitij
Chandel (PW-14). PW-14 who was the Examiner-cum-Reporting
Officer, Biology Division, CFSL Kolkata proved that the genetic
profile of the appellant was consistent as the biological father of
the still born child of the victim.
9. The learned Special Judge thus concluded that the
prosecution had been successful in proving the charges against
the appellant under the various provisions of the POCSO Act as
well as the IPC, as stated above.
10. Section 5(j)(ii) of the POCSO Act relates to penetrative
sexual assault on a female child and making her pregnant as a
consequence of sexual assault. Section 5(l) relates to
commission of penetrative sexual assault on a child more than
once or repeatedly. Section 5(n) relates to commission of
penetrative sexual assault on a child by a person who is a
relative of the child through blood or adoption or marriage or
guardianship or in foster care or having domestic relationship 5 Crl. Appeal No. 01 of 2021 Lall Bahadur Rai vs. State of Sikkim
with the parent of the child or who is living in the same or
shared household with the child.
11. Section 376(2)(f) of the IPC relates to commission of rape by
a relative, guardian or teacher of, or a person in position of trust
or authority towards the woman. Section 376(2)(n) relates to the
commission of rape repeatedly on a woman.
12. The ingredients of each of these offences under the POCSO
Act and the IPC have been cogently established by the
prosecution. We have perused the evidence and the impugned
judgment of conviction and find no fault in the conviction.
13. Mr. N. Rai, learned senior advocate for the appellant at this
stage draws the attention of this court to section 42 of the
POCSO Act and submits that the learned Special Judge should
have sentenced the appellant only for those offences which
provides for punishment which is greater in degree. Section 42
provides that where an act or omission constitutes an offence
punishable under the POCSO Act and also, inter alia, under
section 376 of the Indian Penal Code (45 of 1860), then,
notwithstanding anything contained in any law for the time
being in force, the offender found guilty of such offence shall be
liable to punishment under the POCSO Act or under the Indian
Penal Code as provides for punishment which is greater in
degree.
14. The appellant has been convicted and sentenced under
sections 5(l) and 5(n) of the POCSO Act as well as sections
376(2)(f) and 376(2)(n) of the IPC for commission of offences for 6 Crl. Appeal No. 01 of 2021 Lall Bahadur Rai vs. State of Sikkim
the same acts. During the relevant time, sections 376(2)(f) and
376(2)(n) of the IPC provided for rigorous imprisonment for a
term which shall not be less than ten years, but which may
extend to imprisonment for life, which shall mean imprisonment
for the remainder of that person's natural life, and shall also be
liable to fine. Sections 5(n) and 5(l) of the POCSO Act was
punishable under Section 6 thereof which provided for
punishment with rigorous imprisonment for a term which shall
not be less than 10 years but which may extend to
imprisonment for life and shall also be liable to fine. In Kiran
Karki @ Chettri Uncle vs. State of Sikkim1 the Division Bench of
this court held that the punishment prescribed under section
376(2) IPC is greater in degree than under section 6 of the
POCSO Act.
15. The appeal is partly allowed, the sentences under the
sections 5 (l) and 5(n) of the POCSO Act are set aside on
application of section 42 of the POCSO Act. The sentences
under sections 376(2)(f) and 376(2)(n) of the IPC and 5(j)(ii) of
the POCSO Act are upheld. The rest of the directions in the
impugned order on sentence dated 26.02.2020 are also upheld
including the direction for compensation.
1 SLR(2019)SIKKIM 1088 7 Crl. Appeal No. 01 of 2021 Lall Bahadur Rai vs. State of Sikkim
16. A copy of this Judgment may be transmitted to the learned
Special Court, for information, along with its records.
(Bhaskar Raj Pradhan) (Meenakshi Madan Rai)
Judge Judge
15.12.2021 15.12.2021
Approved for reporting : Yes
sdl Internet : Yes
