Sikkim High Court
Cho Mingur Lepcha vs State Of Sikkim on 19 November, 2021
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
DATED : 19th November, 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.08 of 2021
Appellant : Cho Mingur Lepcha
versus
Respondent : State of Sikkim
Appeal under Section 374(2) of the
Code of Criminal Procedure, 1973
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Appearance
Mr. Jorgay Namka, Advocate (Legal Aid Counsel) for the
Appellant.
Mr. S. K. Chettri, Additional Public Prosecutor with Ms. Pema
Bhutia, Assistant Public Prosecutor, for the State-Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. Whether the Appellant was the perpetrator of the
offence of rape, is what this Court is required to determine in the
instant matter.
2. Before delving into a discussion on this aspect, the
facts of the case are briefly being traversed. On 10.05.2020, P.W.2
lodged a Complaint, Exhibit 4, of the same date, before the
Mangan Police Station informing therein that the Victim, his sister,
aged about 12 years at the time of the incident had been
impregnated by the Appellant. That, he had been informed of this
fact by P.W.3, the Accredited Social Health Activist (ASHA) of the
area. Based on Exhibit 4, the Mangan Police Station registered FIR
Case No.07(05)2020, dated 10.05.2020, under Section 6 of the
Protection of Children from Sexual Offences Act, 2012 (for short,
Cho Mingur Lepcha vs. State of Sikkim
the "POCSO Act"), against the Appellant, following which the I.O.,
P.W.17 took up the matter for investigation. On completion of
investigation, finding prima facie case under Section 376 of the
Indian Penal Code, 1860 (for short, the "IPC") read with Sections 4
and 6 of the POCSO Act, Charge-Sheet was accordingly submitted
against the Appellant.
3. Before the Learned Trial Court, the Appellant pleaded
"not guilty" to the Charges framed against him under Section 511
of the IPC, Section 5(j)(ii) and (l) punishable under Section 6 of the
POCSO Act and Section 375 of the IPC punishable under Section
376 of the IPC. The Learned Trial Court having duly considered the
evidence including that of seventeen Prosecution Witnesses
concluded that the Prosecution was unable to prove the Charge
against the Appellant under Section 511 of the IPC, Sections 5(j)(ii)
and (l) of the POCSO Act, but succeeded in bringing home the
Charge under Section 375 punishable under Section 376 of the IPC.
On closure of Prosecution evidence, the Appellant was afforded an
opportunity to explain the incriminating circumstances appearing in
evidence against him and his Statements recorded under Section
313 of the Code of Criminal Procedure, 1973 (for short, the
"Cr.P.C."). He did not seek to examine any Witnesses in his
defence.
4. Before this Court Learned Counsel for the Appellant
while emphasizing that the Appellant had not committed the
offence put forth a two-pronged argument, the first being that, as
per the Victim, she was raped by the Appellant in the month of
December, 2019 and January, 2020, but gave birth to the girl child
in the month of May, 2020 on which count alone the Prosecution
Cho Mingur Lepcha vs. State of Sikkim
case is demolished. Secondly, although the Prosecution claims that
the DNA Profiling of the Appellant and the child born to the Victim
matches, the evidence on record clearly indicates that the
Prosecution has failed by way of cogent proof to establish that any
blood was drawn from the Appellant for the purposes of DNA
Profiling. Drawing the attention of this Court to Exhibit 17 a Letter
addressed to the Director, Centre for DNA Fingerprinting and
Diagnostics (CDFD), Hyderabad, Telangana, it was urged that the
specimen blood of the Appellant, as per the document, was drawn
by Dr. Dawa Dolma Bhutia, District Hospital Mangan, allegedly
under the Requisition of the I.O. The said Doctor was not
examined as a Prosecution Witness to substantiate this aspect.
That, Exhibit 21 the "Identification Form" pertaining to the
Appellant does not disclose the date of collection of his Blood
Sample while Exhibit 13 the Blood Sample Collection Form of the
Victim and Exhibit 14 the Blood Sample Collection of the girl child,
it was contended, bear not only the date of sample collection but is
duly countersigned by Dr. O.T. Lepcha, who was examined as
P.W.14. His evidence with clarity reveals that he affixed his
signature along with his seal on the said documents. In the
absence of the signature of the collecting Doctor or the date of
Sample Collection on Exhibit 21, in contrast to Exhibit 13 and
Exhibit 14, Exhibit 21 is indeed a suspicious document and
evidently manufactured by the I.O., P.W.17. P.W.13 in his
evidence has stated that on 13.05.2020, he received a Requisition
from the I.O. of the case requesting for collection of Blood Sample
of the Appellant. That, he had in fact directed a technician to
collect the Sample and not a Doctor. The Appellant was thus made
Cho Mingur Lepcha vs. State of Sikkim
a scapegoat and the crime foisted on him sans his Blood Sample, in
order to shield the real rapist. It was next contended that the
Victim had not lodged a Complaint against the Appellant which was
instead initiated by P.W.2 on the basis of the Victim's urine test
conducted by P.W.3, indicating her pregnancy. That, the Victim
neither in her Section 164 Cr.P.C. Statement nor in her evidence
before the Court has ever alleged that the Appellant had forcefully
committed the offence on her against her will or that she was
traumatized by the incident. All evidence points to the fact that the
offence was consensual. That, the Learned Trial Court had
concluded that the minor age of the Victim on the date of the
alleged incident was unproved and therefore did not attract the
provisions of Section 5(j)(ii) and (l) of the POCSO Act which was
not assailed by the Prosecution. To buttress his submissions on this
point, Learned Counsel placed reliance on the ratio of Binod Pradhan
and Another vs. State of Sikkim 1. Consequently, in view of the
grounds put forth the Appellant deserves an acquittal.
5. Learned Additional Public Prosecutor raised the
contention that the evidence of the Victim is proof of the fact that
the Appellant had committed penetrative sexual assault on the
Victim without her consent. That, the DNA Profiling of the child
born from the Victim matched that of the Appellant and the Victim
duly buttressed by the evidence of P.W.16, the DNA Examiner who
deposed that on examination of the DNA Profiles of the new born
baby with that of the Victim and the Appellant, it emerged that the
Appellant is the biological father of the child whereas the Victim is
the biological mother of the baby. Contrary to the argument placed
2019 SCC OnLine Sikk 227
Cho Mingur Lepcha vs. State of Sikkim
by the Appellant that the drawal of blood of the Appellant for DNA
Profiling was not proved, the evidence of P.W.17 the I.O. indicates
that he had collected the Blood Sample of the Appellant from the
Chief Medical Officer at District Hospital, Mangan, North Sikkim
where it had been packed and sealed and handed over to I.O. In
light of the evidence furnished by the Prosecution, the conclusion
arrived at by the Learned Trial Court in convicting the Appellant
under Section 375 punishable under Section 376 of the IPC
warrants no interference.
6. Having heard Learned Counsel for the parties at length
and having examined all documents on record and considering the
arguments advanced at the Bar, we may refer to the relevant
portions of Section 375 of the IPC.
"375. Rape.--A man is said to commit "rape" if he--
(a) penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a woman
or makes her to do so with him or any other
person; or
(b) .............................................
(c) .............................................
(d) ............................................
under the circumstances falling under any of the
following seven descriptions:--
First.--Against her will.
Secondly.-- Without her consent.
Thirdly.-- With her consent, when her
consent has been obtained by
putting her or any person in whom
she is interested, in fear of death
or of hurt.
Fourthly.-- With her consent, when the man
knows that he is not her husband
and that her consent is given
because she believes that he is
another man to whom she is or
believes herself to be lawfully
married.
Fifthly.-- With her consent when, at the
time of giving such consent, by
reason of unsoundness of mind or
intoxication or the administration
by him personally or through
Cho Mingur Lepcha vs. State of Sikkim
another of any stupefying or
unwholesome substance, she is
unable to understand the nature
and consequences of that to which
she gives consent.
Sixthly.-- With or without her consent, when
she is under eighteen years of
age.
Seventhly.--When she is unable to
communicate consent.
Explanation 1.--For the purposes of this section,
"vagina" shall also include labia majora.
Explanation 2.--Consent means an unequivocal
voluntary agreement when the woman by words, gestures
or any form of verbal or non-verbal communication,
communicates willingness to participate in the specific
sexual act:
Provided that a woman who does not physically resist
to the act of penetration shall not by the reason only of
that fact, be regarded as consenting to the sexual activity.
Exception 1.--A medical procedure or intervention
shall not constitute rape.
Exception 2.--Sexual intercourse or sexual acts by a
man with his own wife, the wife not being under fifteen
years of age, is not rape.
7(a). Whether the Prosecution case falls within the
parameters described hereinabove is thus to be examined. In the
first instance, it is noticed that the Victim in Exhibit 2, her Section
164 Cr.P.C. Statement has stated that the Appellant came to her
room one night told her he likes her, forcefully opened her clothes,
touched her on her chest and left. Two days later he came to her
room at night forcefully opened her undergarment and had sex
with her. Three days later while she was working in the kitchen
during the night, he came and pulled her and took her to the
nearby School where he again had sex with her and she was
pregnant.
(b) Her evidence during trial reveals that the Appellant had
visited her home in the month of December, 2019 on which date,
he spoke with her father and returned to his home. The following
day also, he came to her house when she was alone in the kitchen
Cho Mingur Lepcha vs. State of Sikkim
and told her that he likes her and started touching her body.
Thereafter, he left her house. Two days later, he again came to her
house and as she was alone, he came into her room, undressed her
forcefully and committed penetrative sexual assault without her
consent. When she shouted for help, the Appellant closed her
mouth with his hand and told her not to disclose the incident.
Three days later again in the night time, he came to her house,
took her to the nearby School and committed penetrative sexual
assault in the corridor of the School twice. Thereafter, the
Appellant did not come to her house. Later, P.Ws 2 and 3 came to
her house and conducted Urine Pregnancy Test and found that she
was pregnant. P.Ws 3 and 4 went to the Mangan Police Station to
report the incident. She was then called to the Mangan Police
Station and later forwarded to District Hospital, Mangan for medical
examination where she was found to be eight months' pregnant
and was therefore taken to the Mamtalaya Shelter Home where she
remained for about a month. On the 19th day of some month in the
year 2020, which she did not remember, she delivered a baby girl
at the STNM Hospital. She was shifted to Balika Niketan Orphan
Home, Tadong and is residing in the said Home till date. Under
cross-examination, it emerged that she did not disclose the
incident including that of her pregnancy to any of her family
members.
8. Thus, from her evidence and her Section 164 Cr.P.C.
Statement, it is apparent that she has not stated anywhere that
the Appellant forced her to commit the offence or that she was put
in fear by the Appellant that he would hurt her or any of her family
members or for that matter any of her kith and kin. It is not her
Cho Mingur Lepcha vs. State of Sikkim
case that she was traumatized by the incident and in fact it
emerges that on the third night when he came to her house and
took her to the nearby School where he committed penetrative
sexual assault on her she accompanied him without demur. It is
not her case that she was forced by the Appellant to go to the
School with him or that he forcefully raped her.
9. P.W.2 lends no credence to the Prosecution case
regarding the offence of Section 375 of the IPC save to the extent
that after P.Ws 3 and 4 examined the Victim and her Urine
Pregnancy Test was positive, he lodged the FIR (Exhibit 4). The
Victim also appears not to have complained to either P.Ws 2 or 3 or
4 or told them that the Appellant had forcefully raped her. P.W.5, a
co-villager, stated that the Victim did not disclose anything to him.
P.W.6 was the Revenue Inspector in the District Administrative
Centre, Mangan, North Sikkim where the father of the Victim took
her in the month of February, 2020 and requested him to keep his
daughter in his house to enable her to attend School. The Victim,
according to him, stayed in his house for fifteen days. P.W.8 could
only testify that the Victim was pregnant but gave no other details.
P.W.9 identified Exhibit 2 as the Section 164 Cr.P.C. Statement of
the Victim recorded by him. P.W.10 was the Medical Officer posted
at Mangan District Hospital during May, 2020. She physically
examined the Victim on 10.05.2020 at around 3.30 p.m. The
Victim had been brought with an alleged history of sexual assault
by the Appellant in the month of December, 2019 and thereafter
again on 6th and 7th May, 2020. She found that the Victim was
about thirty-two weeks pregnant and she had bruises on her inner
thigh which were assessed to be around three days old. The Doctor
Cho Mingur Lepcha vs. State of Sikkim
also stated that although the Victim told her that the offence was
committed in the month of December, 2019, however, on physical
examination it transpired that the alleged offence would have
occurred in the month of September or October, 2019, to
complement the length of the pregnancy. P.W.13 Dr. P.K. Basnett
had given evidence with regard to the Birth Certificate of the Victim
which is not relevant in this Appeal. On being recalled for re-
examination by the Court, he deposed that on 13.05.2020, he
received a Requisition from the I.O. of the case requesting for
collection of Blood Sample of the Appellant. That, he directed one
of the Technicians of the Mangan District Hospital to collect the
Blood Sample of the Appellant but he did not recall who the person
was. His cross-examination revealed that he did not witness
collection of the Blood Sample of the Appellant in the Laboratory of
the District Hospital, Mangan. That, there was no document in the
case records to substantiate the fact that the Blood Sample of the
Appellant was taken by the Technicians of the District Hospital,
Mangan and handed over to the I.O. of the case duly following the
required procedure. He also admitted that in the Identification
Form containing the photograph, signatures and name of the
Appellant, no stamp of District Hospital was affixed and it was not
prepared at the Mangan Hospital. He was unaware about collection
of the Blood Sample of the Appellant or which Technician was
directed by him to draw the blood or whether the blood was drawn
out at all. He appears to have no knowledge of Dr. Dawa Dolma
whose name appears in Exhibit 17. The evidence of P.W.14
substantiates the Prosecution case that vide Exhibits 13 and 14,
the Identification Forms for collection of blood for DNA analysis was
Cho Mingur Lepcha vs. State of Sikkim
done for the Victim and her child. P.W.15 examined the Appellant
and on examining him, he opined that the Appellant was capable of
performing the sexual act. Under cross-examination, his admission
was that he did not take the Blood Sample of the Appellant at the
time of his DNA Profiling.
10. Thus, after careful consideration of the Exhibits
specifically referred to by Learned Counsel for the Appellant, we
are inclined to agree with his submission that although Exhibits 13
and 14 bear the counter-signatures of P.W.14 Dr. O. T. Lepcha,
Exhibit 21 bears no such counter-signature. The date of Sample
collection is missing. P.W.13 is unable to shed light on whether the
blood of the Appellant was actually drawn out to examine the DNA
Profiling of the Appellant. P.Ws 14 and 15 also could lend no
succour to the Prosecution case in this respect. Added to this is the
fact that Exhibit 17 reveals that the specimen Blood Sample of the
Appellant was drawn by the Medical Officer Dr. Dawa Dolma Bhutia
posted at the Mangan District Hospital. This Doctor was not
produced as a Prosecution Witness leading this Court to draw an
adverse inference against the Prosecution in terms of Section 114
Illustration (g) of the Indian Evidence Act, 1872. Reverting back to
Exhibit 21, the alleged Doctor, viz., Dr. Dawa Dolma Bhutia has not
signed on Exhibit 21 as proof of her having drawn the blood of the
Appellant. The evidence on record fails to inspire confidence on the
aspect of blood withdrawal of the accused for the purpose of DNA
Profiling. The evidence of the I.O. is also unreliable on this count
as he has failed to fortify his statement of blood withdrawal by any
substantive evidence. In the light of these anomalies in the
Prosecution case, the Court cannot conclusively hold that the blood
Cho Mingur Lepcha vs. State of Sikkim
of the Appellant was drawn for DNA Profiling to establish the
paternity of the child born to the Victim. It thus emerges that the
victim appears to be closeting the actual circumstance of her
pregnancy, the fact that she gave birth in May, 2020 after making
claims of being raped in December, 2019/January, 2020 is proof of
this circumstance. Her evidence in no manner can be classified as
that of a sterling witness and is unreliable.
11. We conclude that the Prosecution has not been able to
establish beyond a reasonable doubt that the Appellant was the
perpetrator of the offence of rape as charged. Consequently, the
conviction and sentence imposed on the Appellant vide the
impugned Judgment and Order on Sentence of the Learned Trial
Court are set aside.
12. The Appellant is acquitted of the Charge under Section
375 punishable under Section 376 of the IPC.
13. Appeal allowed.
14. Appellant be released from custody forthwith unless
required to be detained in connection with any other case.
15. Fine, if any, deposited by the Appellant in terms of the
impugned Order on Sentence, be reimbursed to him.
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
19-11-2021 19-11-2021
Approved for reporting : Yes
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