Padam Bdr. Bardewa vs State Of Sikkim
2021 Latest Caselaw 77 Sikkim

             THE HIGH COURT OF SIKKIM: GANGTOK
                 (Criminal Revisional Jurisdiction)
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    SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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                            Crl. Rev. P. No. 03 of 2021

Padam Bahadur Bardewa,
S/o Kharka Bahadur Bardewa,
R/o Upper Temi,
P.O & P.S. Temi, South Sikkim.

                                                (Presently serving sentence at State Jail
                                                Rongyek, East Sikkim)

                                                                              ..... Petitioner

                                                Versus

State of Sikkim
                                                                              .....Respondent


Application under Section 397 and 401 of the Code of
         Criminal Procedure Code, 1973.
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Appearance:
        Mr. N. Rai, Senior Advocate with Ms. Malati Sharma
        and Mr. Yozan Rai, Advocates for the petitioner.

        Mr. Sudesh Joshi, Public Prosecutor with Mr. Thinlay
        Dorjee Bhutia and Mr. Yadev Sharma, Additional
        Public Prosecutors for the State respondent.

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     Date of judgment: 25.11.2021.

                         J U D G M E N T (O R A L)

Bhaskar Raj Pradhan, J.

1. Heard Mr. N. Rai, Learned Senior Advocate for the

revisionist and Mr. Sudesh Joshi, Learned Public Prosecutor for

the State of Sikkim.

Crl. Rev. P. No. 03 of 2021 Padam Bdr. Bardewa vs. State of Sikkim

2. This is an application under Section 397 and 401 of the

Code of Criminal Procedure, 1973 (in short Cr.PC). The

jurisdiction of the revisional court is for the purpose of

satisfying itself as to the correctness, legality or propriety of any

finding, sentence or order, recorded or passed and as to the

regularity of any proceeding of such inferior court.

3. The first point urged by Mr. N. Rai was with regard to the

delay in lodging First Information Report (in short FIR). The

record reveals that the alleged incident happened a day before

the lodging of the FIR on 11.03.2019. There does not seem to be

any apparent delay. The learned trial court has extensively dealt

with the argument made before it and concluded that it is of not

much consequence. The learned appellate court has also

examined it and arrived at the same conclusion.

4. The next point urged by Mr. N. Rai is, what he alleges, are

material contradictions. In support of his argument he has

relied upon the judgment of the Supreme Court in Santosh

Prasad vs. The State of Bihar1 in which it had been found that

there were material contradictions and that the manner in

which alleged incident took place as per the version of the

prosecutrix was not probable. In such circumstances, the

Supreme Court held that the evidence of the prosecutrix did not

withstand the test of a sterling witness. He also relied upon

Rajesh Patel vs. State of Jharkhand2 in which the Supreme

Court examined the evidence in an appeal and concluded that

1 2020 3 SCC 443 2 2013 3 SCC 791

Crl. Rev. P. No. 03 of 2021 Padam Bdr. Bardewa vs. State of Sikkim

the prosecution case is not natural, consistent and probable to

sustain the conviction of the appellant therein. The Supreme

Court also noticed that the delay of 11 days in lodging FIR had

no proper explanation and that the testimony of the prosecutrix

was most unnatural and improbable which did not inspire

confidence.

5. The learned trial court as well as the learned appellate

court examined the submissions of the defence regarding the

contradictions, again extensively, and concluded that they were

not material contradictions. Contradictions which are the usual

wear and tear of time gaps and its effect on human memory that

does not vitally affect the substratum of the prosecution case

cannot be termed as material contradictions. While examining

the evidence, it is clear that the victim had given a detailed

testimony of what happened from the time she took a lift in the

vehicle of the revisionist till she got off at a place close to the

hospital she worked in. The revisionist asked the victim if she

wanted to touch the steering and offered to teach her how to

drive. He came close to her, started sniffing and smelling her

and asked her what fragrance she was wearing. He stopped the

vehicle, got out, came in again and said "dey na" (give me).

When she resisted, he got in and touched her all over her

thighs, shoulders and arms. The evidence of the victim is not

unnatural or improbable. The revisionist has not disputed that

the victim had boarded the vehicle that fateful day. Narration of

the facts as stated by the victim does inspire confidence. The

Crl. Rev. P. No. 03 of 2021 Padam Bdr. Bardewa vs. State of Sikkim

cross-examination did not bring out any material contradiction

in the testimony of the victim from her statements recorded

during the investigation and trial.

6. The learned trial court had convicted the appellant under

Section 354 and 354A of the Indian Penal Code, 1860 (in short

IPC) and sentenced him to undergo simple imprisonment for a

term of one year under Section 354 IPC and further to undergo

rigorous imprisonment for a term of one year and pay a fine of ₹

5,000/- under Section 354A IPC. In default of payment of fine

the revisionist was to undergo simple imprisonment of one

month. The learned appellate court declined to interfere with

the conviction and sentence passed by the learned trial court.

As the learned trial court had not specified the relevant clause

of Section 354A IPC, the learned appellate court held that the

prosecution had been able to establish the case of the

revisionist under Section 354A(1)(i) of IPC, 1860.

7. In the circumstances none of the points urged by Mr. N.

Rai would amount to incorrectness, illegality or impropriety of

the appellate court.

8. Section 354 IPC provides that whoever assaults or uses

criminal force to any woman, intending to outrage or knowing it

to be likely that he will thereby outrage her modesty, shall be

punished with imprisonment of either description for the term

which shall not be less than one year but which may extend to

five years, and shall also be liable to fine.

Crl. Rev. P. No. 03 of 2021 Padam Bdr. Bardewa vs. State of Sikkim

9. Section 354A IPC relates to sexual harassment and

punishment for sexual harassment. Sub-section (1) thereof

provides that a man committing any of the following acts-

(i) physical contact and advances involving unwelcome

and explicit sexual overtures; or

(ii) a demand or request for sexual favours; or

(iii) showing pornography against the will of a woman; or

(iv) making sexually coloured remarks,

shall be guilty of the offence of sexual harassment.

10. Section 354A (2) provides that any man who commits the

offence specified in clause (i) or clause (ii) or clause (iii) of sub-

section (1) shall be punished with rigorous imprisonment for a

term which may extend to three years, or with fine, or with

both.

11. The testimony of the victim satisfies the ingredients of

Section 354 as well as 354A(1)(i) IPC. The learned trial court as

well as the learned appellate court found the revisionist guilty

of the offences under Section 354 and 354A IPC. The learned

court not only convicted the revisionist for the offences but also

sentences him separately for the offences. The evidence of the

victim makes it clear that it was a singular incident which led

to the prosecution. The same set of facts constituted both the

offences. In such circumstance Section 71 of the IPC would

come into play. It provides that:-

"Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than

Crl. Rev. P. No. 03 of 2021 Padam Bdr. Bardewa vs. State of Sikkim

one of such his offences, unless it be so expressly provided.

Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or

where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence,

the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences."

12. In view of the clear provision of the Section 71 IPC this

court is of the view that the sentence meted out to the convict

under Section 354 IPC which is the lesser of the two offences

cannot stand. It is set aside. The conviction of the revisionist are

upheld; the sentences are revised as above. The revisionist is in

custody. He shall continue there until completion of the

sentence.

                                                     (Bhaskar Raj Pradhan)
                                                            Judge
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