Sikkim High Court
Makraj Limboo vs State Of Sikkim on 7 January, 2021
Bench: Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
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SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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Crl. A. No. 17 of 2019
Makraj Limboo,
Aged about 45 years,
Son of Shri Mangal Singh Limboo,
Resident of Ralap Busty,
P.O. & P. S. Phodong,
Mangshila,
North Sikkim.
Presently lodged at Central Prisons,
Rongyek, East Sikkim. ..... Appellant
Versus
State of Sikkim ..... Respondent
Appeal under section 374(2) of the
Code of Criminal Procedure, 1973.
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Appearance:
Mr. N. Rai, Senior Advocate (Legal Aid Counsel) with Mr. Sushant
Subba, Advocate (Legal Aid Counsel) and Ms Sushmita Gurung,
Advocate.
Mr. Yadev Sharma, Additional Public Prosecutor for the
Respondent.
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Date of hearing : 8.12.2020 & 9.12.2020
Date of judgment : 07.01.2021
JUDGMENT
Bhaskar Raj Pradhan, J.
1. On 10.01.2018, the victim (PW-1) lodged the First
Information Report (FIR) (Exhibit-3) at Sadar Police Station,
Crl. A. No. 17 of 2019
Makraj Limboo vs. State of Sikkim
Gangtok, alleging that she was raped by the appellant on
17.08.2013, due to which she became pregnant and had to abort
the baby on his advice. It was alleged that, thereafter, the
appellant assured the victim that he would marry her. She
further alleged that the appellant had taken her to his house
after a month of the miscarriage in the pretext of changing his
clothes and raped her again.
2. In Sessions Trial (F.T.) Case No. 15 of 2018 (State of
Sikkim vs. Makraj Limboo), the learned Judge, Fast Track Court,
East and North Sikkim at Gangtok (the learned Judge), on
30.07.2019, convicted the appellant and sentenced him on
31.07.2019 under section 376(1) of the Indian Penal Code, 1860
(IPC) to undergo seven years rigorous imprisonment and a fine of
Rs.50,000/-. It was held that the case of repeatedly committing
rape on the same woman under section 376(2)(n) IPC had not
been made out. The learned Judge concluded that the appellant
having committed rape upon the victim could not be ruled out.
The learned Judge also held that the victim had explained the
delay in lodging the FIR in detail.
3. Mr. N. Rai, learned Senior Counsel for the appellant,
challenges both the findings of the learned Judge. He further
submits that even if this court were to believe the version of the
victim, it would be seen that the act complained of may have
been consensual and the FIR was lodged only because the
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Makraj Limboo vs. State of Sikkim
appellant did not marry the victim. According to Mr. N. Rai, the
delay of five years in lodging the FIR have not been explained
sufficiently.
4. He drew the attention of this court to the judgment of
the Supreme Court in Sudhansu Sekhar Sahoo vs. State of
Orissa1, to impress that the sole testimony of the victim can be
the basis for conviction, provided it is safe, reliable and worthy of
acceptance. It was held that the evidence of the prosecution
should be cogent and convincing and if there is any supporting
material likely to be available then the rule of prudence requires
that evidence of the victim may be supported by such
corroborative material. Court should be strict and vigilant to
protect society from such evils and in the interest of society,
serious crimes like rape should be effectively investigated. It is
equally important that there must be fairness to all sides, and in
a criminal case a court has to consider the triangulation of
interest. It involves taking into account the position of the
accused, the victim and his or her family and the public.
5. Mr. N. Rai relied upon Ramdas and Others vs. State
of Maharashtra2, in which the Supreme Court found that the
delay of eight days in lodging the FIR has not been satisfactorily
1 (2002) 10 SCC 743
2 (2007) 2 SCC 170
Crl. A. No. 17 of 2019
Makraj Limboo vs. State of Sikkim
explained and the appellant therein was given the benefit of
doubt. It was held:
"24. Counsel for the State submitted that the
delay in lodging the first information report in
such cases is immaterial. The proposition is too
broadly stated to merit acceptance. It is no doubt
true that mere delay in lodging the first
information report is not necessarily fatal to the
case of the prosecution. However, the fact that the
report was lodged belatedly is a relevant fact of
which the court must take notice. This fact has to
be considered in the light of other facts and
circumstances of the case, and in a given case the
court may be satisfied that the delay in lodging the
report has been sufficiently explained. In the light
of the totality of the evidence, the court of fact has
to consider whether the delay in lodging the report
adversely affects the case of the prosecution. That
is a matter of appreciation of evidence. There may
be cases where there is direct evidence to explain
the delay. Even in the absence of direct
explanation there may be circumstances appearing
on record which provide a reasonable explanation
for the delay. There are cases where much time is
consumed in taking the injured to the hospital for
medical aid and, therefore, the witnesses find no
time to lodge the report promptly. There may also
be cases where on account of fear and threats,
witnesses may avoid going to the police station
immediately. The time of occurrence, the distance
to the police station, mode of conveyance available,
are all factors which have a bearing on the
question of delay in lodging of the report. It is also
possible to conceive of cases where the victim and
the members of his or her family belong to such a
strata of society that they may not even be aware
of their right to report the matter to the police and
seek legal action, nor was any such advice
available to them. In the case of sexual offences
there is another consideration which may weigh in
the mind of the court i.e. the initial hesitation of
the victim to report the matter to the police which
may affect her family life and family's reputation.
Very often in such cases only after considerable
persuasion the prosecutrix may be persuaded to
disclose the true facts. There are also cases where
the victim may choose to suffer the ignominy
rather than to disclose the true facts which may
cast a stigma on her for the rest of her life. These
are cases where the initial hesitation of the
prosecutrix to disclose the true facts may provide a
good explanation for the delay in lodging the
report. In the ultimate analysis, what is the effect
of delay in lodging the report with the police is a
matter of appreciation of evidence, and the court
must consider the delay in the background of the
Crl. A. No. 17 of 2019
Makraj Limboo vs. State of Sikkim
facts and circumstances of each case. Different
cases have different facts and it is the totality of
evidence and the impact that it has on the mind of
the court that is important. No straitjacket formula
can be evolved in such matters, and each case
must rest on its own facts. It is settled law that
however similar the circumstances, facts in one
case cannot be used as a precedent to determine
the conclusion on the facts in another.
(See Pandurang v. State of Hyderabad [(1955) 1
SCR 1083 : AIR 1955 SC 216] .) Thus mere delay
in lodging of the report may not by itself be fatal to
the case of the prosecution, but the delay has to be
considered in the background of the facts and
circumstances in each case and is a matter of
appreciation of evidence by the court of fact."
6. He also relied upon Vijayan vs. State of Kerala3, in
which the Supreme Court had considered a case solely based on
the evidence of the prosecutrix. The complaint had been made
after seven months after the alleged commission of rape. It was
held that in cases where the sole testimony of the prosecutrix is
only available, it is very dangerous to convict the accused,
especially when the prosecutrix could venture to wait for seven
months for filing the FIR for rape leaving the accused totally
defenceless. Had the prosecutrix lodged the complaint soon after
the incident, there would have been some supporting evidence
like the medical report or any other injury on the body of the
prosecutrix so as to show the sign of rape. If the prosecutrix had
willingly submitted herself to sexual intercourse and waited for
seven months for filing the FIR, it would be very hazardous to
convict on such sole oral testimony.
3 (2008) 14 SCC 763
Crl. A. No. 17 of 2019
Makraj Limboo vs. State of Sikkim
7. Mr. Yadev Sharma, learned Additional Public
Prosecutor, on the other hand, vociferously supported the
judgment of conviction and order on sentence passed by the
learned Judge. It was his contention that the FIR (Exhibit-3), the
statement of the victim recorded under section 164 of the Code of
Criminal Procedure, 1973 (Cr.P.C.) (Exhibit-5) and her deposition
in court had elaborately detailed the circumstances of how, when
and why, the victim had been raped by the appellant which could
not be demolished inspite of the exhaustive cross-examination. It
was, therefore, contended that the judgment of conviction and
order on sentence, need not be interfered.
8. The prosecution has examined 18 witnesses including
Shekhar Basnett, the Investigating Officer (PW-18). The defence
has examined Birkha Bdr. Limboo (DW-1) and San Bdr. Limboo
(DW-2), raising a plea of alibi that on the date of the incident,
i.e., 17.08.2013, the appellant was in Nepal with them. The
learned Judge disbelieved the plea of alibi as it was not cogently
proved. The defence plea of alibi would be relevant if the
prosecution discharged its burden of proof.
9. The only direct evidence relating to the alleged rape
by the appellant is that of the victim. The victim has in her FIR
dated 10.01.2018 (Exhibit-3), statement recorded under section
164 Cr.P.C dated 26.02.2018 (Exhibit-5) and her deposition
dated 13.02.2019, given a detailed account of what transpired
Crl. A. No. 17 of 2019
Makraj Limboo vs. State of Sikkim
with her before, during the two incidents of alleged rape and
thereafter. According to her deposition, she knew the appellant
whose wife used to be her teacher in her school. Sometimes in
the year 2013, she had met the appellant at a funeral in the
village where he had asked her about her future and promised to
help her secure a government job. The victim was aware that the
appellant had good political contacts and was an influential
person. She was aware that he had helped other people of their
village to secure government jobs. At the funeral, the appellant
told her that he would take her to Gangtok to get her a
government job. He took her mobile number and told her that he
would contact her in a few days regarding the job. The victim
deposed that after two-three months on 17.08.2013, the
appellant called her over the phone and told her that he would
take her to Gangtok for the job. Thereafter, the victim, along with
her brother, who also had to go to Ramthang, North Sikkim,
went with the appellant in his vehicle (MAXX bearing registration
no. 0042). The appellant dropped her brother at Ramthang and
thereafter, they proceeded to Gangtok. On the way to Gangtok,
the appellant suggested that they should go to his room at
Development Area to prepare an application for her job.
According to the victim, she did not agree to go to his room and
said that she would wait for him in the market. The appellant
insisted that she should go with him so that he could dictate the
contents of the job application. According to the victim, after
Crl. A. No. 17 of 2019
Makraj Limboo vs. State of Sikkim
entering the room, the appellant bolted the door from inside. She
told him not to do so. The appellant said that if people saw them
together, they would misunderstand. The appellant then told her
to sit on the bed, brought a table beside it and started dictating
the job application. She started writing it. The appellant inquired
about her family. Suddenly, the appellant pushed her on the bed
and started kissing her on her mouth, cheeks and neck, despite
her resistance. He even fondled her breasts. Although, she tried
to resist, he overpowered her. Somehow, she managed to reach
the door but before she could unlatch the door, the appellant
dragged her to another room where again he bolted the door from
inside. The room appeared like a kitchen but had a small bed.
The appellant took her to the bed, forcefully opened her clothes
and his, as well. She resisted and pleaded that she was
menstruating. He did not stop and committed rape on her. She
tried to raise hue and cry, but the appellant covered her mouth
with his hand, and she was helpless. After the incident, she was
traumatised and cried. The appellant threatened her not to
disclose the incident and assured her that he would take her as
his second wife. He also told her that he had done such activities
with nearly a hundred girls. The appellant did not let her go on
her own and stayed with her all the while. He, thereafter, took
her to a restaurant. She was not in a state to eat anything. From
the restaurant, the appellant took her to the Secretariat. They
could not meet the officers as they had already left. Later, on the
Crl. A. No. 17 of 2019
Makraj Limboo vs. State of Sikkim
same date, the appellant dropped her back home and told her to
inform him whether she got her monthly period or not. After
about ten-fifteen days, the appellant called her again and told
her that he would take her to Gangtok for the job that he had
promised. The victim was in a frustrated state and thought that
it would be best for her if she got the government job. So, she
agreed to meet him at Zero, North Sikkim. When they met at
Zero, the appellant told her that he had to change his clothes
and insisted that she should accompany him to his house. Once
they reached there, she noticed that there was no one at home.
The appellant taking advantage once again forcefully committed
rape on her. After the incident, the victim fought with the
appellant and went home and told him that she no longer wanted
the job. According to the victim, even after the incident, the
appellant used to call her over the phone and inquire whether
she had her monthly period or not. After a month of the incident,
she missed her monthly period and so, when the appellant called
her, she informed him about it. The appellant brought a
pregnancy test kit and when she checked, she found out that she
was pregnant and told the appellant about it. The appellant gave
her a pill to abort her pregnancy and made her take the pill in
front of him. After taking the pill, she started bleeding for about
fifteen days and her health started deteriorating. Eventually, she
had many health issues and was diagnosed with depression for
which she was treated at Central Referral Hospital, Manipal. The
Crl. A. No. 17 of 2019
Makraj Limboo vs. State of Sikkim
victim was later informed by her family members that in her
state of depression, she used to be delirious and search for the
appellant and say that he had killed her child. Her family
members doubted that the appellant had done something to her
and when they returned home after the treatment, they asked
her what happened. The victim then told them about both the
incidents. Her family members then called the appellant and
asked him about the incidents. The appellant accepted the fact in
her presence. The appellant also agreed to take her as his second
wife to make up for what he had done and also set the date as
25.09.2017. According to the victim, her brother had also
videographed the said conversation in his mobile phone.
However, the appellant did not come on the said date but sent
his wife along with some money and requested her not to report
the matter to the police and also forced her to accept a sum of
Rs.1,00,000/-. An agreement was also prepared stating that the
wife of the accused would pay a sum of Rs.2,50,000/- by way of
compensation for the medical expenses incurred by her during
her medical treatment. Thereafter, the victim decided that it
would be best for her to lodge a complaint against the appellant
and accordingly, lodged the FIR (Exhibit-3). During her cross-
examination, she admitted that there was a delay of five years in
lodging the FIR; she was aware that the appellant was a married
man with children; that he was a rich person working as a
contractor and a social worker; that they had gone to hotel Potala
Crl. A. No. 17 of 2019
Makraj Limboo vs. State of Sikkim
after the alleged incident that took place in Development Area,
which had many staff present and near the hotel there were
many people walking by; that she also saw traffic police
personnel on the way to the hotel; that because she was
undergoing treatment for depression and was not in a proper
frame of mind, she had made different statements before the
police and the Magistrate; during the five years she did not
disclose about the incident to anyone including the police. She
admitted that her statement, that the appellant started kissing
her on her mouth, cheeks and neck and fondled her breasts and
although she tried to resist him, he overpowered her - was being
mentioned by her for the first time in court. She also admitted
that although she went home after the incident at Development
Area, she did not disclose about it to her family members. She
admitted that she was around 29-30 years old.
10. There is an inordinate delay of five years in lodging
the FIR (Exhibit-3). Much of the evidence which may have been
available during the relevant time would have been lost. Rape is
a violent offence. Penetration is a sine qua non. Due to the
inordinate delay, medical evidence like injuries would have
healed and material evidence would be lost. Yet her statement
cannot be brushed under the carpet merely because she took
time to come out and disclose it. The victim's statement
regarding sexual offence is a delicate evidence which must be
Crl. A. No. 17 of 2019
Makraj Limboo vs. State of Sikkim
examined closely keeping in mind various relevant factors. It is
important to keep in mind that in the context of the present
Indian and for that matter, even the Sikkimese social setting, a
woman would not ordinarily make a false allegation of sexual
assault or rape for the fear of stigma. However, more and more
women are coming out setting aside their fear and reporting
about sexual offences. The stigma which once existed amongst
many women may be slowly receding at least with the educated
and conscious populace. It is also equally important to keep in
mind that the accused should not be put in the same pedestal as
that of the victim of crime. One is the injured, the other, the
predator. It is well settled that the court can, in a given case, rely
upon the sole testimony of the victim if it is safe, reliable and
worthy of acceptance and convict the accused. However, it is
always prudent for the court to seek corroboration when the sole
testimony is the only evidence available. What is, however, vital
for the court to keep in mind is that like in all criminal cases, the
burden is always upon the prosecution to prove its case beyond
reasonable doubt. Due to the fact that in the present case, the
victim had not reported about the incident for five long years, it
is equally important to seek corroboration of what she deposed in
court.
11. Quite evidently, there is no other eyewitness' account.
The unnamed brother who accompanied the victim till Ramthang
Crl. A. No. 17 of 2019
Makraj Limboo vs. State of Sikkim
on 17.08.2013, along with the appellant in his car, was not
examined as prosecution witness. PW-10, her elder brother, was
examined but he said nothing about travelling with the victim
and the appellant on 17.08.2013.
12. Out of the 18 witnesses examined by the prosecution,
several of them deposed about the settlement talks the family
members of the victim had with the appellant. All of them were
co-villagers and therefore, known to the victim and the appellant
as well. Besides them, Ranjeeta Pradhan (PW-17) was the learned
Judicial Magistrate who recorded the statement of the victim
under section 164 Cr.P.C. on 26.02.2018. Bijay Subba (PW-14)
was the Officer-in-Charge of the Police Station, who registered
the FIR (Exhibt-3) and Shekhar Basnett (PW-18) was the
Investigating Officer of the case. Dr. Samrat Singh Bhandari (PW-
11) was the Associate Professor in Psychiatry at the Central
Referral Hospital, Manipal, who examined the victim in August
2017 and January 2018 just before she lodged the FIR (Exhibit-
3). Dr. Mani Gurung (PW-13) was the Gynaecologist at the STNM
Hospital who examined the victim on 11.01.2018 a day after she
lodged the FIR.
13. Amongst the prosecution witnesses who spoke about
the settlement talks, PW-4, PW-7 and PW-8 were not related to
the victim but lived in the same village as that of the victim and
the appellant. PW-5 was the victim's niece and classmate. PW-9
Crl. A. No. 17 of 2019
Makraj Limboo vs. State of Sikkim
was the victim's uncle. PW-10 was the victim's elder brother. PW-
15 was the victim's distant relative and PW-16, the victim's
cousin. PW-12 was the appellant's cousin. Their evidence reflects
that the appellant and his wife were also involved in those
settlement talks. The evidence suggests that at least two such
meetings took place in the victim's house. It is also apparent that
two documents were prepared during these meetings. PW-12 -
the appellant's cousin, was the scribe of "Lena Dena Patra"
(Exhibit-2) and the "Milapatra" (Exhibit-10). PW-4, who
accompanied the appellant's wife to the meeting, deposed about
their preparations. Some amount of money seems to have been
offered during the settlement talks and a promise to pay more
seem to have been made. PW-5 - the victim's niece, PW-8, PW-9 -
the victim's uncle and PW-10 - the victim's elder brother, all
spoke about it. PW-10, the victim's elder brother, admitted
having received an amount of Rs.1,00,000/- from the appellant's
wife. Some of the witnesses also deposed about the demand of
the victim's family members for the appellant to marry the victim.
Besides the victim, PW-8, PW-9 and PW-10 deposed about the
appellant himself offering to marry the victim. PW-16, the
victim's cousin, seems to have prepared a video on his mobile
phone recording the execution of an agreement during one of the
meetings. This video was transferred into a compact disk at
Digital Color Lab in the presence of PW-2 and PW-3 and handed
over to the Investigating Officer. The involvement of the
Crl. A. No. 17 of 2019
Makraj Limboo vs. State of Sikkim
appellant's wife during these settlement talks have been deposed
by PW-4, PW-5, PW-8, PW-9, PW-10, PW-12, PW-15 and PW-16.
The fact that the appellant himself was also involved in at least
one of the meetings has been deposed by PW-8, PW-9, PW-10
and PW-16.
14. Although the victim and her niece (PW-5) deposed
that the victim had disclosed about the two incidents of rape to
the victim's family members after her treatment at the Central
Referral Hospital in the year 2017, none of them deposed that
she had in fact disclosed to them about the rape on two
occasions in the year 2013. PW-9, the victim's uncle, deposed
about the appellant having admitted about the physical
relationship he had with the victim and promising to marry her
only. Even the victim's brother (PW-10) did not depose that the
victim had disclosed about the two incidents of rape. In fact, he
admitted that even in his statement to the police he had not
stated that the appellant had raped his sister. PW-15, the
victim's distant relative, admitted during cross-examination that
the victim used to admire the appellant since the time she was
studying in Class-XI. According to him, the victim used to say
that she wanted to marry the appellant. He also admitted that
initially the family of the victim and the appellant shared a
cordial relation. However, after the appellant physically assaulted
the brother of the victim, their relationship strained. The victim's
Crl. A. No. 17 of 2019
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cousin (PW-16) deposed that the victim had confided to PW-5,
her relative, about the sexual relationship between the victim
and the appellant following which the victim had to abort the
child. According to PW-4, the victim's brother (PW-10) told him
that the victim was suffering from depression due to the sexual
relationship between the appellant and the victim. PW-8 also
deposed that he learnt about the physical relationship between
them from the family members. According to PW-12, she had
heard about the love affair between the two. She also admitted
during cross-examination that she had gone to the appellant's
house in the year 2017 when he had met with an accident and
found the victim along with PW-5 and another girl from their
village there. The victim and PW-5 had gone to see the appellant.
PW-7 deposed that he had learnt about the affair between the
appellant and the victim during the meeting. He also admitted
that he had heard few years ago about the altercation between
the victim's brother and the appellant.
15. PW-5 admitted during her cross-examination that she
and the victim had studied together in Class-X in the year 2010.
According to her, the victim had to drop her Class-X examination
due to her serious skin infection. She also admitted that the
father of the victim was suffering from hypertension and the
victim was bearing all the expenses of her parents for the past
four-five years. PW-8 and PW-9 (the victim's uncle) also
Crl. A. No. 17 of 2019
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corroborated these facts. The victim's brother (PW-10) admitted
that both their parents remained sick due to old age and the
school expenses of their younger sister was borne by the victim
as well. He admitted that his brother-in-law had expired two-
three years ago. He admitted that the victim had nerve problems
for which she had undergone operation. He also admitted that
during her school days the victim had skin allergy due to which
she had to drop one year from school. PW-5 admitted that the
brother-in-law of the victim had died three-four years ago. She
also admitted that the victim had become sad due to his death.
16. Dr. Mani Gurung (PW-13), a Gynaecologist at the
STNM Hospital, examined the victim on 11.01.2018. This was
five years after the alleged two incidents of rape. According to
Dr. Mani Gurung (PW-13), the victim gave a history of two
assaults by the appellant. She gave history of pregnancy and
abortion. On local external genital examination, he noticed old
healed hymenal tear suggesting of blunt force injury of the
hymen in the past. However, during his cross-examination, he
admitted that injury to the vagina could have been caused due to
the impact of some material objects (scratch with nail or falling
in a hard surface). He also admitted that he had not examined
the victim regarding her pregnancy.
17. Dr. Samrat Singh Bhandari (PW-11) examined the
victim on 10.08.2017 for the first time at Central Referral
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Hospital, Manipal, Tadong. The victim was brought by her family
members with the complaint of sleep disturbance, reduced
interaction with family members, irrelevant talks at times and
crying spells. She was also making some gestures indicating
hallucinatory behaviour. All the symptoms were since the past
four to five days. On mental status examination of the patient, he
found that there was decreased psychomotor activity. There was
decrease in rate, volume and productivity of speech. Her affect
was blunt with decrease intensity and restricted range. They
were not able to elicit any disturbance in thought and perception
at that time. The victim was provisionally diagnosed with acute
and transient psychotic disorder, schizophrenia like with
associated stress. The victim was put on antipsychotic
olanzapine. The victim was again brought for review on
08.01.2018. At that time, she had improved and had stopped
taking her medicine. On mental status examination, there were
no significant findings except ideas of reference. During his
cross-examination, Dr. Samrat Singh Bhandari (PW-11) accepted
that the symptoms he had noticed on the victim was
multifactorial and could be a result of bereavement in the family,
skin allergy, family responsibility, etc. The FIR was lodged on
10.01.2018, just two days after the victim was reviewed at the
Central Referral Hospital. Exhibit-1 was the medical paper
prepared by Dr. Samrat Singh Bhandari (PW-11) at the Central
Referral Hospital on 08.01.2018 and exhibited by him. Although
Crl. A. No. 17 of 2019
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not deposed to by him, it is important to note as per Exhibit-1,
he had advised the victim to have tablet olanzapine 2.5 mg for
two weeks and to follow up after two weeks.
18. The learned Judge may have been correct in
concluding that the appellant having committed rape upon the
victim could not be ruled out. The victim's vivid description of the
two incidents does lead one to understand that it may have been
so. However, while it is important to be conscious about the
trauma of the victim - a victim of alleged sexual assault, it is also
important to be conscious about the well settled principle of
criminal jurisprudence that more serious the offence, the stricter
the degree of proof. What happened on 17.08.2013 in the
confines of the appellant's room at Development Area, and
thereafter, in his house would be known only to the victim and
the appellant. The victim did not report the matter to the police
immediately thereafter, although she was fairly educated and a
woman who wanted to stand on her own feet. The victim has
given a detailed account of what happened five years ago in great
detail about the two alleged incidents. However, her deposition is
conspicuously silent about the period thereafter, till the year
2017, when she went into depression. There is a serious
discrepancy in the FIR (Exhibit-3) and the statement recorded
under section 164 Cr.P.C on the one side and the deposition on
the other. While she had alleged that in between the two rapes
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she had aborted the child in the statement recorded by the police
and the magistrate, in her deposition she alleged that she
aborted her pregnancy after the second rape. The FIR (Exhibit-3)
was lodged on 10.01.2018, after several deliberations between
the victim's family and the appellant's well-wishers. Although, no
definite date of the meetings has been given by the prosecution
witnesses, from the evidence of the victim and her brother (PW-
10), it seems these meetings were held after she was discharged
from Central Referral Hospital in September 2017 and just before
she lodged the FIR on 10.01.2018. The FIR (Exhibit-3) was
lodged by the victim too close to the time of her depression, when
admittedly, she had been suffering from transient psychotic
disorder and schizophrenia and hallucinating and making
irrelevant talks. Although, the victim deposed as if she was aware
of the meetings and what transpired there, PW-4 on being
questioned by the learned Judge, deposed that she was in fact
present during the meeting but was sick and unable to
understand what was going on. PW-5 - the victim's niece and
classmate, also corroborated this fact. PW-10 - the victim's elder
brother, deposed that the victim was in his house, a little above
the main house where the meeting was held. According to
PW-9 - the victim's uncle, who had visited the victim at Central
Referral Hospital and thereafter, in her house, the victim was
very weak and frail and not in a normal state. He deposed that
during the meeting the victim was bedridden in the next room.
Crl. A. No. 17 of 2019
Makraj Limboo vs. State of Sikkim
PW-16 also deposed that the victim was not in a proper state of
mind.
19. In the circumstances, this court is of the considered
view that although the evidence led by the prosecution leads to
grave suspicion that the appellant had in fact raped the victim, it
would not be judiciously prudent to convict the appellant on
suspicion alone. None of what the victim deposed have been
corroborated even by her family members. The victim's version of
rape is not corroborated, so is her version of pregnancy and
abortion. There is evidence to suggest that the victim had been
infatuated by the appellant and had expressed her desire to
marry him. Some of the prosecution witnesses have deposed
about their love affair. There is evidence to suggest that the
victim had herself visited the appellant when he had an accident.
The possibility of a relationship gone sour cannot be ruled out.
Several of the prosecution witnesses had deposed hearing about
their "physical relationship" and "sexual relationship", both of
which would not amount to rape. In such circumstances, this
court is also of the considered view that the appellant must be
given the benefit of doubt.
20. The judgment of conviction dated 30.07.2019 and the
order on sentence dated 31.07.2019, are set aside. He shall be
released forthwith, if not required in any other case. Fine, if any,
Crl. A. No. 17 of 2019
Makraj Limboo vs. State of Sikkim
deposited by him in terms of the impugned order on sentence,
shall be refunded to him.
21. The appeal is allowed.
22. Crl. A. No. 17 of 2019 stands disposed of as also the
pending Interlocutory Application.
23. Copy of this judgment be sent to the learned trial
court for information and records be returned forthwith.
( Bhaskar Raj Pradhan )
Judge
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