Sikkim High Court
Sanjib Rai And Ano vs State Of Sikkim on 16 December, 2021
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
DATED : 16th 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.13 of 2020
Appellants : Sanjib Rai and Another
versus
Respondent : State of Sikkim
Appeal under Section 374(2) of the
Code of Criminal Procedure, 1973
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Appearance
Mr. Sunil Baraily, Advocate (Legal Aid Counsel) for the
Appellants.
Mr. Yadev Sharma, Additional Public Prosecutor for the State-
Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. Both Appellants No.1 and 2 (for short, A1 and A2)
herein were convicted vide impugned Judgment dated 22-10-2020
in Sessions Trial (POCSO) Case No.05 of 2019, under Section 376
of the Indian Penal Code, 1860 (for short "IPC") and sentenced to
undergo imprisonment for 10 (ten) years, each, with fine of
Rs.500/- (Rupees five hundred) only, each, and default clauses of
imprisonment, vide impugned Order on Sentence dated 23-10-
2020, for sexually assaulting the victim.
2(i). The Prosecution case as it unfolds is that on 13-09-
2019, source information was received at the Police Station, that
the minor girl was missing from her home from 11-09-2019 which
had remained unreported. The Investigating Officer (I.O.), P.W.13
visited her parents to request them to lodge a First Information
Sanjib Rai and Another vs. State of Sikkim
Report (FIR). Meanwhile, the Police took necessary steps, traced
and brought the victim, P.W.1 to the Police Station. P.W.2, an
Outreach Worker, District Child Protection Unit (DCPU) was
intimated about the situation and P.W.1 handed over to her for
counselling, during which, P.W.1 revealed to P.W.2 that she had
been with A1 for two days and had been sexually assaulted by him.
On such revelation, P.W.2 lodged the FIR, Exhibit 4, on 13-09-
2019.
(ii) Investigation revealed that on 11-09-2019, at around
0900 hours, the victim after school returned home, changed her
clothes and went to the residence of A1 as they were already in a
relationship. She stayed the night at his residence where he
sexually assaulted her multiple times. The next morning, on 12-
09-2019, A1 locked the victim in his room and left for work. On his
return from work, he again sexually assaulted her and on the
morning of 13-09-2019 he asked her to return home while he went
to work. The victim then came out of the room and was traced by
the Police personnel and brought to the Police Station.
(iii) Further, investigation revealed that in July, 2019, the
victim had met A2 and had a relationship with him. A2 also lived in
the same place/structure with A1 but in a separate room. That, in
July, 2019, he too sexually assaulted the victim several times and
in August the same year, she came to learn that she was pregnant
upon which he gave her medication for termination of the
pregnancy. Thereafter, due to problems at his work place he
returned to his home town and severed all contact with the victim.
While attempting to trace out A2, she allegedly met A1 which led to
their relationship. During the course of investigation, the victim
Sanjib Rai and Another vs. State of Sikkim
was also medically examined by Dr. Dawa Dolma Bhutia, P.W.10.
On completion of investigation, on finding prima facie materials
against both A1 and A2, Charge-Sheet was submitted before the
Learned Court of the Chief Judicial Magistrate under Section 376 of
the IPC read with Section 6 of the Protection of Children from
Sexual Offences Act, 2012 (for short "POCSO Act"). On receipt of
the Charge-Sheet the Learned Chief Judicial Magistrate, North
Sikkim, took cognizance of the offence and committed the case for
trial before the Learned Special Judge (POCSO Act), North Sikkim,
at Mangan.
(iv) The Learned Trial Court on receiving the File on
committal framed Charge against A1 under Section 5(l) of the
POCSO Act punishable under Section 6 of the POCSO Act and,
against A2 under Sections 5(l) and 5(j)(ii) punishable under
Section 6 of the POCSO Act. Both A1 and A2 took the plea of "not
guilty" to the Charges upon which the trial commenced. The
Prosecution examined 14 (fourteen) witnesses to establish its case.
On closure of Prosecution evidence, both the Appellants were
examined individually, under Section 313 of the Code of Criminal
Procedure, 1973 (for short, "Cr.P.C.") and their responses
recorded. They had no witness to examine.
(v) The Learned Trial Court took up three points for
determination; (i) Whether the Prosecutrix was a minor at the time
of incident? (ii) Whether A1 committed penetrative sexual
assault/rape on the Prosecutrix at the place with effect from 11-09-
2019 to 13-09-2019? (iii) Whether A2 committed penetrative
sexual assault/rape on the Prosecutrix at his place in July, 2019
multiple times and in consequence of same she became pregnant
Sanjib Rai and Another vs. State of Sikkim
and compelled her to terminate it? (sic) On the first point, the
Learned Trial Court concluded that Exhibit 3 the victim‟s Birth
Certificate issued by the Registrar, Births and Deaths, North Sikkim
and handed over to the Police by her parents and Exhibit 10 Report
issued by the School Authority (P.W.7, the Headmaster) could not
be relied on to prove her date of birth on grounds that the contents
of the documents were not proved by the Prosecution. While
considering points No.2 and 3 it was concluded that in view of the
inability of the Prosecution to prove the victim‟s age and
consequently her minority, the charges framed under Section 5(l)
of the POCSO Act against A1 and Section 5(l) and 5(j)(ii) of the
POCSO Act against A2 were not applicable. They were acquitted of
these charges, but it was found that nevertheless both A1 and A2
had committed the offence of rape against the Prosecutrix. On due
consideration of the evidence on record, the Learned Trial Court
found both A1 and A2 guilty of the offence under Section 375 of
the IPC, punishable under Section 376 of the IPC and convicted
and sentenced them as reflected supra.
3. Learned Counsel for the Appellants put forth the
arguments before this Court that it was the victim who had
voluntarily gone to the place of residence of A1 and A2 and also
voluntarily spent nights therein. The testimony of the victim was
neither trustworthy nor unblemished in view of the contradictions
which appear in her Section 164 Cr.P.C. statement and her
deposition in Court. The Evidence of P.W.5 and P.W.12 do not
support the evidence of P.W.1 thereby indicating that her
testimony is a concocted story. That, in her Section 164 Cr.P.C.
statement she has made no mention of A2 or of having been
Sanjib Rai and Another vs. State of Sikkim
sexually assaulted by him, but before the Learned Trial Court she
had made an effort to falsely implicate him. The evidence of P.W.1
is unbelievable also for the reason that there was only one door for
entry into the place of residence of A1 and A2 and she herself has
testified that every room in that place was occupied. She could
well have raised an alarm to obtain the assistance of the occupants
in the event that she was raped, but her evidence reveals no such
attempts leading to a conclusion that the acts with A1 and A2 were
consensual. The I.O. has failed to investigate and identify the
person who allegedly came to open the door of the room where she
was allegedly confined by A1, raising doubt about her version and
the Prosecution case. The Doctor‟s evidence reveals that there
were no injuries on the person of the victim nor did she opine that
the victim was forcibly sexually assaulted by any of the Appellants.
No blood or semen was detected on M.O.I, the quilt forwarded for
forensic tests. The Prosecution case has thus no legs to stand, the
impugned Judgment and Order on Sentence be set aside and the
Appeal dismissed.
4. Per contra, Learned Additional Public Prosecutor
submits that the statement given by P.W.1 in her Section 164
Cr.P.C. is duly corroborated by her in her evidence before the
Court. However, he fairly conceded that there was no evidence
whatsoever on record to establish that she had been forcefully
compelled or was taken forcibly by any of the Appellants and
raped.
5. Learned Counsel for the parties were heard in extenso
and the entire evidence on record as well as the documents
examined carefully.
Sanjib Rai and Another vs. State of Sikkim
6. The questions that arise for determination by this Court are
(i) Whether the Learned Trial Court has correctly arrived at the
finding that the offence under the POCSO Act was not applicable to
the Appellants and (ii) Whether they were individually guilty of the
offence under Section 376 of the IPC of which they were convicted.
7. While addressing the first question, it is pertinent to
mention at the outset that the Learned Trial Court concluded that
there was no proof furnished by the Prosecution that the victim
was a minor as the contents of Exhibit 3, her Birth Certificate and
Exhibit 10 the report given by P.W.7 went unproved. This finding
of the Learned Trial Court was not assailed by the State-
Respondent and hence, has attained finality. There is thus no
requirement to further examine this aspect of the Prosecution case.
Accordingly, the finding of the Learned Trial Court warrants no
interference.
8. Now to consider the second question flagged; Section
375 of the IPC deals with the offence of rape, while Section 376 of
the IPC provides for the penalty for rape. The offence committed
by the Appellants would fall within the ambit of Section 376(2)(n)
of the IPC, viz., commits rape repeatedly on the same woman.
They would thus be liable to be punished for imprisonment for a
term which shall not be less than 10 (ten) years, but 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.
9(i). P.W.2 is an Outreach Worker of the DCPU, North
Sikkim and admittedly not a Counsellor. Nevertheless, the Police
required her to appear at the Police Station to counsel the victim.
Sanjib Rai and Another vs. State of Sikkim
On disclosure by the victim that she (victim) had been subjected to
sexual assault, P.W.2 lodged Exhibit 4 at the Police Station. It is
trite to mention that there were no eye-witnesses to the alleged
offences. The only evidence that can be relied on is that of the
victim, consequently it would be essential to examine her evidence
in its entirety to assess its veracity and whether it passes the test
of being of sterling quality.
(ii) According to P.W.1, in the month of May, 2019, she
met A2 at a place in North Sikkim where although he sought her
mobile number, she did not share it with him. The following day,
A2 invited her to the same place where she went accompanied by
her cousin and friend. Three days later, she was again called by
A2 to the same place and thereafter taken to his place under
compulsion, where she went accompanied again by one „didi‟ and
cousin. On reaching the place at around 7 p.m., they found A2 had
one room and she was taken alone inside the same room. Her
cousin and her „didi' remained in the room of A1. In the room of
A2, he forcibly undressed her and committed penetrative sexual
assault on her. Following this incident, he again took her 3/4 times
to his room and repeatedly sexually assaulted her. At that time,
she was unaware that A2 was a married man. After three days of
the sexual assault, she did a home pregnancy test and found that
she had conceived. She shared the information with A2 who
suggested that she take medicines for termination of pregnancy,
but did not bring the medicines for her. Later, she herself
purchased it and took it. A2 after commission of the offence fled
from the place after which she was unable to contact him. That,
one day her father being angry on some issue beat her up, she left
Sanjib Rai and Another vs. State of Sikkim
her home and went to look for her sister in the place of A1 as her
sister was his girlfriend. The room of A1 is located in the same
place as that of A2. A1 come out of his room, took her there and
made her rest on the plea that it was raining outside. He also
made a bed for her and he himself decided to sleep on the floor.
During the night, he came to her bed, undressed her and
committed penetrative sexual assault. She stayed for two days in
the room of A1 who locked her from outside. On finding the door
locked, she knocked on it and one „uncle‟ came and unlocked the
door for her. She then went to the house of one „didi' located close
to the place of A1 where her brother came and took her in the
Police vehicle to the Mangan Police Station. At the Police Station,
her two sisters and A1 were present. She was taken to the
Mangan District Hospital and medically examined by the Doctor.
The Police also recorded her statement as did one „Sir‟ in the Court
building. She identified Exhibit 1, in three pages, as the
preliminary questions put to her by the said „Sir‟ and Exhibit 2 as
the said statement given to him by her upon which she also affixed
her thumb impression. Her cross-examination elicited the fact that
one Bhim, Anup and Vten used to also reside in the same place
which had several rooms but only one entrance. She admitted
having visited the place of the said three persons. It was her
further admission that in all the rooms of the place where A1 and
A2 resided, there were occupants at the relevant time. That, after
the alleged incident with A1, she went to the house of her sister
and not to the Police Station.
(iii) The evidence of P.W.1 nowhere indicates that she was
forcefully taken to the room of either A1 or A2. Her evidence also
Sanjib Rai and Another vs. State of Sikkim
reveals that after she met A2 she went to his place accompanied
by her cousin and friend, repeatedly. Admittedly when she was
allegedly being raped in the room by A2, her cousin and sister were
in the room of A1. It is surprising that neither did her cousin and
sister make an effort to find out why she was with A2 alone in his
room for so long and she herself made no attempt to seek their
help either during such a traumatic experience or after it. It is not
the Prosecution case that after the alleged incident with A1 and A2,
P.W.1 even made an effort to report the incident to the Police
Station. How the question of compulsion by A2, arises is
perplexing as three of them have gone with A2 to accompany him
to his house without qualms, sans use of force. She went into the
room of A2 without demur, no shouts for help were heard neither is
it her case that she was dragged by A2 to his room. Her evidence
therefore fails to inspire the confidence of this Court. Admittedly,
there is only one entrance to the house, with several rooms
allocated to different persons and the rooms are occupied at any
given time by the residents as appears from the evidence of P.W.1
and the I.O. Anyone would therefore have heard the victim
provided she had raised a cry for help, which evidently she did not.
It is also unbelievable that after being sexually assaulted by A2 and
on conducting a Urine Test after three days of the incident she
found herself pregnant, this defies science and her allegation
appears to be too far-fetched to be believable. The allegation
against A1 also does not indicate that the sexual encounters with
him were on account of the force that he had employed. She had
stayed in his place for two days which was evidently of her own
freewill. According to her, when she knocked on the door, one
Sanjib Rai and Another vs. State of Sikkim
uncle came and unlocked the door. The identity of this person is
undisclosed by the Prosecution. The use of force by A1 and A2 on
the victim have not been proved by any evidence whatsoever.
What can be culled out from the evidence on record is that P.W.1
had gone to the rooms of A1 and A2 voluntarily and had
consensual sex with them. Her statement under Section 164
Cr.P.C. reveals that in fact she had run away from her house on
11-09-2019 after being hit by her father on the back of her head.
She then went to the house of A1 where the alleged rape took
place. A2 finds no mention in her Section 164 Cr.P.C. statement
and his involvement was revealed only during her evidence in
Court which raises doubts about the truth of her deposition. In
light of the lack of cogency in her evidence, she can in no way be
termed as a sterling witness, for this Court to rely on her evidence
unrestrainedly and without misgivings.
(iv) The evidence of P.W.3 the victim‟s mother lends no
support to the Prosecution case neither does the evidence of P.W.4
the victim‟s father. P.W.5 is the sister of the victim. Contrary to
the evidence of P.W.1, P.W.5 has not stated that she had
accompanied the victim to the place of either A1 or to that of A2.
Importantly, she has stated that the Prosecutrix visited A2 in his
place out of her own freewill and P.W.5 had no idea about the
relations between the victim and A1. Her cross-examination
extracted the fact that the Prosecutrix used to have a number of
boyfriends and most of the time she used to visit the boys called
Bhim, Anup, Vten.
(v) Although during investigation one quilt, M.O.I was
seized from the house of A1 in the presence of P.W.6 and P.W.9,
Sanjib Rai and Another vs. State of Sikkim
vide Exhibit 6, no body fluids were detected on M.O.I by P.W.14,
the Junior Scientific Officer who examined the article. Hence, the
evidence of these witnesses is of no consequence to the
Prosecution case.
(vi) Dr. Dawa Dolma Bhutia P.W.10 medically examined the
victim. She identified Exhibit 12 as the Medical Report prepared by
her on examining the victim. Exhibit 12 reveals as follows;
".......................................................
As per the victim‟s statement, she had gone to Mr.
Sandeep Subba‟s place on 11/9/19, at night on her
own. Before going to his place, she was scolded by
her father for coming late. On 11/9/19, she stayed at
Sandeep‟s place where her clothes were removed
forcibly against her will and he had intercourse with
her. Next morning i.e. on 12/9/19, he again had
intercourse with her and thereafter on 12/9/19 night
and today morning i.e. 13/9/19, again he had
intercourse with her. After he left for work, she left
the house next to Miss ........ house. There she met
her cousin brother and took her to Mangan Police
Station.
She also gives (sic) a H/o of being being (sic)
pregnant in the month of June/July, after having
sexual intercourse with Tika for 1-2 weeks in
June/July, she was given abortifacient drug for
aborting the pregnancy. She hasn‟t passed urine or
taken bath after having intercourse today morning."
(vii) It thus emerges that the victim did not tell the Doctor
that she was forcibly taken to the house of A1. She has reiterated
that she was scolded by her father and had been hit by him on the
head upon which she left her house. She appears to have
deliberately gone to the house of A1 and had consensual sex with
A1 on 11th and 12th September, 2019. On the morning of 13-09-
2019 she went to the house of one resident instead of informing
the Police of her alleged predicament as anyone traumatized by an
incident would expectedly do. The fact that the act was consensual
can also be culled out from her statement that she was unaware
that A2 was a married man.
Sanjib Rai and Another vs. State of Sikkim
(viii) P.W.11 the Station House Officer of the concerned
Police Station received Exhibit 4 from P.W.2. On receipt of the FIR
he registered a case against both the Appellants under Section 376
of the IPC read with Section 6 of the POCSO Act and entrusted the
investigation to P.W.13. He is unaware of the other facts of the
case. P.W.12 also shed no light on the fact of sexual assault. She
had seen the Prosecutrix and A2 sitting on one stone at the place
they had gone together with P.W.12. As it was evening she asked
P.W.1 to return home and suggested to A2 that he could call her
cousin during the day time only. They all returned home together
and later she heard of the pregnancy of the victim as a result of
her relation with A2. It is her evidence that most of the time, the
Prosecutrix used to stay outside her home during the night.
(ix) The I.O. P.W.13 in his evidence stated that after the
victim was brought to the Police Station and her statement
recorded, she was forwarded to a Shelter Home at Gangtok. That,
his investigation revealed that the victim had love affairs with A1
and A2 who were friends. It was his admission under cross-
examination that the rooms at the place of occurrence are covered
by plain sheet (GCI sheets) and there were no concrete walls inside
the said house. That, there are a number of rooms at the said
place and apart from the Appellants other employees of the
relevant Company also resided in the same house at the relevant
time, although he had not mentioned their details in his
investigation.
(x) P.W.14 the Junior Scientific Officer at RFSL had
examined a number of articles forwarded to him including M.O.I,
Sanjib Rai and Another vs. State of Sikkim
but no clinching scientific evidence emerged to establish the
complicity of A1 and A2 in the alleged offence.
10. On the anvil of all the discussions that have emanated
above, it thus falls to conclude that no proof whatsoever was
furnished by the Prosecution to establish that offence of rape was
committed by A1 and A2 on the victim, P.W.1. The acts are
evidently consensual. We are, therefore, inclined to disagree with
the findings of the Learned Trial Court for the aforestated reasons.
11. Consequently, the conviction and sentence imposed on
A1 and A2 vide the impugned Judgment and Order on Sentence of
the Learned Trial Court are set aside.
12. The Appellants, A1 and A2, are acquitted of the offence
that they were charged with individually.
13. Appeal allowed.
14. Appellants be released from custody forthwith unless
required to be detained in connection with any other case.
15. Fine, if any, deposited by the Appellants in terms of the
impugned Order on Sentence, be reimbursed to them.
16. No order as to costs.
17. Copy of this Judgment be transmitted to the Learned
Trial Court, for information, along with its records and a copy be
sent forthwith to the Jail Authorities as also e-mailed.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
16-12-2021 16-12-2021
Approved for reporting : Yes
ds
