State Of Sikkim vs Padam Bahadur Panday (Chettri)
2021 Latest Caselaw 64 Sikkim

                          THE HIGH COURT OF SIKKIM : GANGTOK
                                         (Criminal Appellate Jurisdiction)

                                          DATED : 29th October, 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.10 of 2020
                                   Appellant            :      State of Sikkim
                                                                versus
                                   Respondent           :      Padam Bahadur Panday (Chettri)
                                    Appeal under Section 378(3) of the
                                    Code of Criminal Procedure, 1973
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                     Appearance

                          Dr. (Ms.) Doma T. Bhutia, Public Prosecutor with Mr. S.K.
                          Chettri, Additional Public Prosecutor, for the Appellant.
                          Mr. Karma Thinlay, Senior Advocate (Pro Bono) with Ms. Sonam
                          Wangmo Dorjee, Advocate, for the Respondent.
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                                         JUDGMENT

Meenakshi Madan Rai, J.

1. This Appeal assails the Judgment of the Learned Fast

Track Court, East and North Sikkim at Gangtok, dated 30.05.2019,

in S.T. (FT) Case No.03 of 2019, whereby the Respondent-Accused

was acquitted of the offence under Section 376 (2)(l) and Section

376(2)(n) of the Indian Penal Code, 1860 (for short, the "IPC"),

citing lack of evidence and thereby extending the benefit of doubt

to him.

2. Learned Public Prosecutor, impugning the Judgment of

the Learned Fast Track Court contended that, in fact, there was

adequate evidence which proved the Prosecution case beyond a

reasonable doubt against the Respondent who ought to have been

convicted of the offences charged with. That, the Victim has

State of Sikkim vs.

Padam Bahadur Panday (Chettri)

categorically asserted in her Statement under Section 164 of the

Code of Criminal Procedure, 1973 (for short, the "Cr.P.C.") that

there was penetration of her genital by that of the Respondent‟s,

thereby constituting the offence of rape. That, penetration does not

have to be complete penetration for the offence of rape as held in

Aman Kumar and Another vs. State of Haryana1. That apart, the

evidence of the Victim is of sterling quality being cogent and

trustworthy. Although her speech may have been incoherent, the

incoherence did not extend to her evidence. That, the Hon‟ble

Supreme Court in Mohd. Imran Khan vs. State Government (NCT of

Delhi)2 has laid down that the Statement of the Prosecutrix, if found

to be worthy of credence and is reliable, requires no corroboration

and the Accused may be convicted on the sole testimony of the

Prosecutrix. That, in Wahid Khan vs. State of Madhya Pradesh3, the

Hon‟ble Supreme Court observed that in an Indian society, no

woman would make allegations of rape as she is aware of the

repercussions flowing therefrom. The Victim herein also had no

reason to make any false allegations against the Respondent. The

evidence of P.Ws. 2, 3 and 4 corroborate and support the

Statements of the Victim, which have remained consistent. That,

the Learned Trial Court failed to appreciate the fact that there was

sufficient evidence on record to establish that the Victim was

sexually assaulted by the Respondent on the relevant day apart

from which, the evidence of the Victim has not been decimated

under cross-examination. That, in his examination under Section

313 Cr.P.C., the Respondent did not deny the allegations made

(2004) 4 SCC 379

(2011) 10 SCC 192

(2010) 2 SCC 9

State of Sikkim vs.

Padam Bahadur Panday (Chettri)

against him nor did he state that he was innocent. Hence, the

Appeal be allowed and the Respondent be convicted of the offences

as charged viz. under Section 376 (2)(l) and Section 376(2)(n) of

the IPC.

3. Vehemently resisting the arguments of the Learned

Public Prosecutor, Learned Senior Counsel for the Respondent

contended that the Judgment of the Learned Trial Court can be set

aside only if there is a perversity in the findings which, in the

instant matter, is non-existent. That, this Court, in the first

instance, is to examine whether the Statement of the Victim is

trustworthy. That, at the time of the alleged offence, the

Respondent was sixty years of age and the Victim, fifty five years.

According to the Victim, the Respondent caught hold of her hands,

dragged her forcibly to the latrine, touched and rubbed her breasts

and committed rape on her. That, the entire circumstance narrated

by the Victim appears to be incongruous and impossible

considering that the Respondent was sixty years old at the relevant

time, rendering it an impossibility for him to have dragged a grown

woman of fifty five years for a long distance. According to Exhibit

1, the First Information Report (for short, the "FIR"), the

Respondent had dragged her to the female toilet. Exhibit 11, the

Rough Sketch Map of the Place of Occurrence indicates that the

female toilet is situated at the end of the out house of the Old Age

Home, preceded by six other such facilities. If the intention of the

Respondent was to rape the Victim, there was no reason for him to

have dragged her to the seventh facility to commit the offence. It

could well have been committed in the first bathroom, which is the

closest to the Old Age Home. That, the place where she was

State of Sikkim vs.

Padam Bahadur Panday (Chettri)

allegedly dragged from is visible from the roadside and a Mandir is

located close by as also a Camp of the Indian Reserve Battalion,

therefore, the act of dragging the Victim could easily have been

witnessed by the persons in the area. That, there were seventeen

inmates of the Old Age Home at the time of the alleged offence but

none of them appear to have seen the Victim being dragged

neither did she shout for help. That, it is not the Prosecution case

that she was unable to shout out for help. That, the Respondent

was not seen coming out of the toilet after the Victim, neither did

the Victim point to him when she was narrating the incident to

P.Ws. 2, 3 or 4. Nothing incriminating emerged from the Forensic

Examination Report as well as the Medical Examination Report

although both the Respondent and the Victim were examined on

the date of the alleged offence i.e. 04.11.2018. Hence, the

impugned Judgment being a reasoned one ought not to be

interfered with and the Appeal deserves a dismissal. To buttress his

arguments, reliance was placed on Union of India and Others vs.

Sepoy Pravat Kumar Behuria4, State of Uttar Pradesh vs. Wasif Haider

and Others5 and Santosh Prasad vs. State of Bihar6.

4. We have carefully considered the rival submissions of

Learned Counsel, examined the evidence and documents on

record, as also the impugned Judgment and the citations made at

the Bar.

5. The only question that falls for consideration before this

Court is whether the impugned Judgment of the Learned Trial Court

warrants interference? To examine this aspect, we may advert to

(2019) 10 SCC 220

(2019) 2 SCC 303

(2020) 3 SCC 443

State of Sikkim vs.

Padam Bahadur Panday (Chettri)

the Prosecution case which, briefly stated, is that on 04.11.2018,

Exhibit 1, the FIR, came to be lodged at the concerned Police

Station by P.W.2, informing that at around 16:45 Hrs, the Victim

was forcibly dragged by the Respondent to a female toilet situated

in the out house of the Ground Floor of the Old Age Home of which

both the Victim and the Respondent were occupants. P.W.2 the

Complainant, who was working as a Caretaker of the Old Age

Home, was informed of the incident by P.W.4, also a Caretaker of

the Home, upon which, she went to the Place of Occurrence. The

Victim narrated the incident to P.W.2 stating that the Respondent

had caught her hands, dragged her to the said toilet, raped her and

squeezed her breasts. That, in fact, previously also he had

attempted to rape her several times. Upon the lodging of Exhibit 1,

Ranipool Police Station Case bearing FIR No.43/2018, dated

04.11.2018, under Section 376 of the IPC was registered against

the Respondent and the case endorsed to P.W.9, the Sub Inspector

at the Ranipool Police Station for investigation. On completion of

investigation, Charge-Sheet was submitted against the Respondent

under Section 376 of the IPC.

6. The Learned Trial Court framed Charge against the

Respondent under Section 376 (2)( l) and Section 376 (2)(n) of the

IPC. On his plea of "not guilty," nine Witnesses for the Prosecution

were examined. On closure of the Prosecution evidence, the

Respondent was afforded an opportunity under Section 313 Cr.P.C.

to explain the incriminating evidence against him. He denied any

involvement in the offence. Arguments of the parties were finally

heard and the Judgment of Acquittal was pronounced on

30.05.2019, hence this Appeal.

State of Sikkim vs.

Padam Bahadur Panday (Chettri)

7.(i) On careful perusal of the evidence of the Prosecution

Witnesses and the documents relied on by the Prosecution, as well

as upon viewing the Video Recording of the proceedings, prepared

by the Learned Trial Court while recording the evidence of P.W.1

the Victim, it emerges with clarity that there is no reason for this

Court to interfere with the findings and conclusion of the Learned

Trial Court for the reasons that; in the first instance, the Learned

Trial Court, before recording the evidence of the Victim has

recorded as follows;

"(As the victim has low I.Q. and could not express herself like normal person, hence the entire proceeding is videographed in camera by using Smart Phone.) ....................."

This Statement itself indicates that the Victim was not competent

to testify. The Learned Judicial Magistrate who recorded the

Section 164 Cr.P.C. Statement of the Victim has inter alia recorded

as under;

"The victim could not be administered Oath as she did not understand when she was tried to be administered the same even through gestures. The victim also could not be asked the questions as provided in the questionnaire as she could not be properly conveyed the same and she also could not understand it. However, the victim could understand the simple questions put to her as such her statement is recorded in question and answer form. She could speak few words and also showed her answers sometimes through gestures.

..................................."

(ii) It is imperative at this juncture to refer to the

provisions of Section 118 of the Indian Evidence Act, 1872 (for

short, the "Evidence Act") which provides as follows;

"118. Who may testify.--All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease,

State of Sikkim vs.

Padam Bahadur Panday (Chettri)

whether of body or mind, or any other cause of the same kind.

Explanation.--A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them."

(iii) The Court therefore is vested with the discretion of

examining the competency of a Witness to testify. If the Court

concludes that the Witness does not understand the questions put

to her and fails to give rational answers, the Court is not to

proceed to take the evidence of that Witness. We are indeed

conscious that there is no legal requirement to hold a preliminary

examination to detect the competency of any Witness, however, as

a rule of prudence, when a person appears to be mentally

challenged, it is desirable to resort to a preliminary examination

which would disclose the capacity and intelligence of the Witness.

Section 119 of the Evidence Act lays down as hereunder;

"119. Dumb witnesses.--A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence."

(iv) On the anvil of the above Sections of Law, although it

is essential to state here that the Victim appeared to have a partial

speech impediment and was not "dumb" as envisaged by the

provisions of Section 119 of the Evidence Act, the Victim lacked the

mental capacity to understand the questions put to her, which can

be culled out from the observations recorded by the Learned

Judicial Magistrate who proceeded to record the Section 164

Cr.P.C. Statement of the Victim and from the evidence recorded by

the Learned Trial Court. To satisfy ourselves further, we have also

examined the Video Recording of the Court proceedings prepared

State of Sikkim vs.

Padam Bahadur Panday (Chettri)

by the Learned Trial Court, the Recording not having been objected

to by either the Learned Public Prosecutor or the Learned Defence

Counsel. On such viewing, it is apparent that the Witness was not

in a position to take oath as she lacked any understanding of the

requirement of oath or even the consequences of taking oath. That

apart, the Learned Public Prosecutor, on examining the Victim,

recorded, "......Thereafter, the accused touched and rubbed my breasts

and committed rape on me." Besides a gesture indicating that

someone had rubbed her breasts, there was no indication that rape

had been committed on her by any person. The Video Recording

indicates that she did not use the word "rape" at all nor did she

make any statement about the Respondent having raped her. She

made no gesticulation to indicate the offence of rape. Not only did

the Victim specifically not utter the word "rape" in her evidence but

the medical examination of the Victim and the Respondent

conducted on the date of the alleged offence i.e. 04.11.2018 lent

no credence to the allegation of rape. P.W.6 is the Doctor/Medical

Officer who examined both the Victim and the Respondent. Her

findings for the Victim were inter alia as follows;

"On examination the patient was conscious, oriented to time, place and person.

On local examination tenderness was present on both breasts, there were no bruises or any external injuries in her body parts, there were no external injuries in her genitals i.e. Labia minora/labia majora. All her vitals were within normal limit.

..........."

On examining the Respondent, she found the following;

"On the same day i.e. 04.11.2018 the accused was brought for his medical examination by S.I. Chomu Lachungpa of Ranipool P.S. with an alleged history of sexual assault upon the victim on 02.11.2018 at T, East Sikkim.

On examination the patient was conscious, oriented to time, place and person. All his vitals were within normal limit.

State of Sikkim vs.

Padam Bahadur Panday (Chettri)

On local examination there were no external injuries present in his body parts or his genitals.

..........."

Her cross-examination revealed that she had examined the

Respondent and the Victim within twenty four hours from the time

of the alleged incident. She also stated that if a Victim of rape is

examined within twenty four hours from the time of incident, fresh

injuries and swelling, or bruise marks may be detected on her

private parts. She admitted that there were no old or fresh injuries

on the Victim‟s private parts. So far as the Respondent is

concerned, her cross-examination revealed that if a person

performs sexual intercourse with a woman and such person is

examined within twenty four hours from the time of the sexual

intercourse, the Accused may have some swelling or laceration of

glans in his private parts. That, there was no such swelling or

laceration in the private parts of the Respondent neither were there

any old or fresh injuries present on his body or genitals.

(v) It is pertinent to observe that it is not the Prosecution

case that either the Victim or the Respondent had taken a bath

after the incident or changed their clothes. The Doctor collected

specimen of the pubic hair of the Victim (M.O.I), nail clippings of

the Victim (M.O.II), the buccal swab of the Victim (M.O.III), her

vaginal swab (M.O.IV) as also the pink floral pyjama of the Victim

(M.O.V). She also collected specimen of the pubic hair of the

Respondent (M.O.VI), his nail clippings (M.O.VII), his buccal swab

(M.O.VIII), the penile swab of the Respondent (M.O.IX) and his

undergarment (M.O.X).

(vi) P.W.7, the Junior Scientific Officer at Regional Forensic

Science Laboratory, Saramsa, examined the Material Objects supra

State of Sikkim vs.

Padam Bahadur Panday (Chettri)

by using Serological Techniques and did not find blood, semen or

other body fluids in M.O.I to M.O.IV, M.O.V, M.O.VI to M.O.IX and

M.O.X which had been forwarded to him. The Forensic Examination

indicated absence of any body fluids on the wearing apparels of

both the Victim and the Respondent. In the absence of injuries on

the Victim and the Respondent, as also lack of body fluids on any

of the Material Objects, the offence of rape appears to be a figment

of the imagination of the Complainant P.W.2.

8.(i) The Learned Public Prosecutor harped on the Victim

being a sterling Witness. It was also submitted that penetration

need not be full penetration. Not only is penetration a sine qua non

for the offence of rape but in order to constitute penetration, there

must be clear and cogent evidence to prove that some part of the

virile member of the accused was within the labia of the pudendum

of the woman, no matter how little (See Aman Kumar and Another

vs. State of Haryana supra). However, the evidence of the Victim

before the Learned Trial Court, her Medical Examination and that of

the Respondent, as also the Forensic Evidence do not support the

Prosecution allegation of penetration. At the same time, it is

necessary to observe that a sterling Witness is one whose oral

testimony is cogent, reliable, convincing and trustworthy for it to

be accepted by the Court. In Raju and Others vs. State of Madhya

Pradesh7, the Hon‟ble Supreme Court, while observing that the

Prosecutrix should not be disbelieved, also cautioned that a false

allegation of rape can cause ignominy to the Accused. It was held

inter alia as hereunder;

„10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a

(2008) 15 SCC 133

State of Sikkim vs.

Padam Bahadur Panday (Chettri)

prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the court.

11. It cannot be lost sight that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.‟

(ii) We are indeed aware that in every case of rape, it is

not necessary that there would be injuries on the person of the

Victim or that absence of injuries would not necessarily be an

indication of absence of rape. However, in this context, it is

apposite to notice that the Victim‟s evidence points to no such

incident and the evidence of P.Ws.6 and 7 lend no support to the

Prosecution case. If the Victim, as alleged, had been dragged from

one place to the next, there would have been some bruises/marks

on her body as such dragging would have required force to be

employed by the perpetrator of the offence. Besides, there ought

to have been marks on the body of the perpetrator as well, if

efforts had been made by the Victim to fight off the assault. These

are missing in the case at hand, as evident from the entire

evidence on record. The Rough Sketch Map Exhibit 11, shows no

marks where the Victim was dragged and the I.O‟s evidence is

devoid of such Statement.

State of Sikkim vs.

Padam Bahadur Panday (Chettri)

(iii) Although it was the constant refrain of the Learned

Public Prosecutor that the Section 164 Cr.P.C. Statement of the

Victim was recorded wherein she had stated that rape had been

committed on her, however, in this context, it may be noticed that

the Victim‟s Statement under Section 164 Cr.P.C. is of no

relevance, as no oath was administered to the Victim as required

by law before recording of her Statement under Section 164

Cr.P.C. Appositely, it may be stated that the Statement of a

Witness recorded under Section 164 of the Cr.P.C. is not

substantive evidence and can be utilized only for the purpose of

contradiction and corroboration. In R. Shaji vs. State of Kerala8, the

Hon‟ble Supreme Court observed inter alia as follows;

"26. Evidence given in a court under oath has great sanctity, which is why the same is called substantive evidence. Statements under Section 161 CrPC can be used only for the purpose of contradiction and statements under Section 164 CrPC can be used for both corroboration and contradiction. .........................................

27. So far as the statement of witnesses recorded under Section 164 is concerned, the object is twofold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement; and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in court should be discarded, is not at all warranted. (Vide Jogendra Nahak v. State of Orissa [(2000) 1 SCC 272 : 2000 SCC (Cri) 210 : AIR 1999 SC 2565] and CCE v. Duncan Agro Industries Ltd. [(2000) 7 SCC 53 : 2000 SCC (Cri) 1275])

28. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 CrPC can be relied upon for the purpose of corroborating statements made by witnesses in the committal court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 CrPC, such statements cannot be treated as substantive evidence." It thus falls to reason that the Learned Trial Court could only rely on the evidence given on oath in the Court and not one under Section 164 of the Cr.P.C.

(2013) 14 SCC 266

State of Sikkim vs.

Padam Bahadur Panday (Chettri)

which can be relied on only for the purposes of corroboration and contradiction."

[Emphasis supplied]

9. While addressing the argument advanced by the

Learned Public Prosecutor that the Respondent failed to deny his

act of sexual assault against the Victim in his Statement under

Section 313 Cr.P.C., we may relevantly refer to the questions put

to the Respondent under Section 313 Cr.P.C. wherein he has

specifically stated in response to Questions No.1, 2 and 69, as

extracted hereinbelow;

"Q.1. It is in the evidence of PW 1 (Victim) that she knows you and calls you Padam daju. During the relevant time you caught hold of her(victim's) hand and dragged her forcibly to the latrine. What do you have to say?

                       Ans:     It is not true.
                       Q.2      It is in the evidence of PW1 that thereafter (in

the said latrine) you touched and rubbed her (victim's) breasts and committed rape on her. What do you have to say?

                       Ans:     It is not true.
                       Q.69     Do you have any statements to make in your

defence? Do you have any witnesses to produce before this Court in your defence?

Ans: I do not have witnesses to examine but I am an innocent person and have been falsely implicated in this case."

Thus, contrary to the assertion of the Learned Public Prosecutor,

the Respondent has categorically denied his involvement in the

alleged offence. That having been said, in this context, we may

also relevantly refer to the Judgment of the Hon‟ble Supreme Court

in Nagaraj vs. State, represented by Inspector of Police, Salem Town,

Tamil Nadu9 wherein it was observed inter alia as under;

"15. In the context of this aspect of the law it has been held by this Court in Parsuram Pandey v. State of Bihar [(2004) 13 SCC 189: 2005 SCC (Cri) 113] that Section 313 CrPC is imperative to enable an accused to explain away any incriminating circumstances proved by the prosecution. It is intended to benefit the accused, its corollary being to benefit the court in reaching its final conclusion; its intention is not

(2015) 4 SCC 739

State of Sikkim vs.

Padam Bahadur Panday (Chettri)

to nail the accused, but to comply with the most salutary and fundamental principle of natural justice i.e. audi alteram partem, as explained in Asraf Ali v. State of Assam [(2008) 16 SCC 328:(2010) 4 SCC (Cri) 278]. ........................Having made this clarification, refusal to answer any question put to the accused by the court in relation to any evidence that may have been presented against him by the prosecution or the accused giving an evasive or unsatisfactory answer, would not justify the court to return a finding of guilt on this score. Even if it is assumed that his statements do not inspire acceptance, it must not be lost sight of that the burden is cast on the prosecution to prove its case beyond reasonable doubt. Once this burden is met, the statements under Section 313 assume significance to the extent that the accused may cast some incredulity on the prosecution version. It is not the other way around; in our legal system the accused is not required to establish his innocence. ......"

[Emphasis supplied]

The position of law having been soundly explained in the context of

Section 313 Cr.P.C. Statement and its utility, no further discussions

are required in this aspect.

10. In light of the discussions that have emanated

hereinabove, although the Charges have been framed under

Section 376 (2)(l) and Section 376(2)(n) of the IPC, the

Prosecution has failed to substantiate the Charges beyond a

reasonable doubt by means of any evidence. The evidence of the

Victim does not inspire the confidence of this Court with regard to

the offence of rape unfortified as it is, by the Medical Examination

Reports of the Victim and the Respondent, Exhibit 6 and Exhibit 7

respectively, as also the Forensic Examination Report, Exhibit 8.

11. Therefore, on due consideration of the evidence on

record, as already stated supra, we are in agreement with the

findings of the Learned Trial Court that the Prosecution has failed

to prove its case beyond a reasonable doubt. Hence, the impugned

Judgment warrants no interference whatsoever.

12. Consequently, we find no merit in the Appeal which

fails and is accordingly dismissed.

State of Sikkim vs.

Padam Bahadur Panday (Chettri)

13. No order as to costs.

14. Copy of this Judgment be sent to the Learned Trial

Court, for information.

15. Lower Court Records be remitted forthwith.

                      ( Bhaskar Raj Pradhan )                           ( Meenakshi Madan Rai )
                                    Judge                                            Judge
                                    29.10.2021                                      29.10.2021




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