Dilip Goel vs State Of Sikkim
2021 Latest Caselaw 56 Sikkim

                     THE HIGH COURT OF SIKKIM : GANGTOK
                                         (Criminal Appeal Jurisdiction)
                                      DATED : 29th September, 2021
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  SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, ACTING CHIEF JUSTICE
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                                            Crl.A. No.03 of 2019
                        Appellant                         :       Dilip Goel

                                                                   versus

                        Respondent                        :       State of Sikkim

                                 Appeal under Section 374(2) of the
                                  Code of Criminal Procedure, 1973
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                  Appearance
                    Mr. N. Rai, Senior Advocate for the Appellant.
                      Mr. Thinlay Dorjee Bhutia, Additional Public Prosecutor for the
                      State-Respondent.
                -----------------------------------------------------------------------------------------
                                            JUDGMENT

Meenakshi Madan Rai, ACJ

1. The minor victim allegedly aged about 15 years was

said to have been sexually assaulted by the Appellant aged about

44 years, in a room of a Lodge, which led to the instant case. The

Learned Trial Court convicted the Appellant of the offence under

Section 3(b) of the Protection of Children from Sexual Offences

Act, 2012 (POCSO Act, 2012) and under Sections 342/376(2)(i) of

the Indian Penal Code, 1860 (for short, "IPC"), vide the impugned

Judgment, dated 18-12-2018 in Sessions Trial (POCSO) Case

No.25 of 2017. The Order on Sentence dated 19-12-2018

prescribed the following;

(i) imprisonment for a period of 7 years and to pay a fine of Rs.5,000/- (Rupees five thousand) only, under Section 3(b) punishable under Section 4 of the POCSO Act, 2012;

(ii) imprisonment for a term of 1 year and to pay a fine of Rs.2,000/- (Rupees two thousand) only, for the offence under Section 342 of the IPC; and

Dilip Goel vs. State of Sikkim

(iii) rigorous imprisonment for a term of 7 years and to pay a fine of Rs.5,000/- (Rupees five thousand) only, under Section 376(2)(i) of the IPC.

The sentences of imprisonment were ordered to run concurrently

and the sentences of fine bore default clauses of imprisonment.

Set off was granted in terms of Section 428 of the Code of Criminal

Procedure, 1973 (for short, "Cr.P.C."). It was further ordered that

the fine, if recovered, was to be made over to the victim as

compensation. The Appellant was acquitted of the offence under

Section 363 of the IPC.

2. The facts of the Prosecution case is that on 22-05-

2017, Exhibit 2, an FIR was received from P.W.2, the victim‟s step-

father stating that on 22-08-2017 at around 10.30 hrs. the

Appellant, a labour contractor, had lured the victim (P.W.1) to a

Lodge and sexually assaulted her. The FIR was accordingly

registered on the same day under Section 376 of the IPC read with

Section 4 of the POCSO Act, 2012, and investigation endorsed to

P.W.20, the Investigating Officer (I.O.). On completion of

investigation, Charge-Sheet was submitted against the Appellant

under Section 376 of the IPC read with Section 4 of the POCSO

Act, 2012. The Learned Trial Court on receipt of the Charge-Sheet

framed Charge against the Appellant under Sections 363/342 and

376(1) of the IPC and Sections 3/4 of the POCSO Act, 2012. The

Appellant put forth a plea of "not guilty" and the trial commenced

with the Prosecution examining 20 (twenty) witnesses in a bid to

establish its case, on closure of which, the Appellant was examined

under Section 313 of the Cr.P.C. to enable him to explain the

incriminating circumstances appearing against him. He claimed not

to have been involved in the alleged incident. The final arguments

Dilip Goel vs. State of Sikkim

were heard and the Learned Trial Court after examining the

evidence on record convicted the Appellant, as detailed

hereinabove.

3. Learned Senior Counsel for the Appellant contended

that the Section 164 Cr.P.C. statement of the victim, P.W.1, before

the Learned Trial Court indicates that there was no penetrative

sexual assault. As per P.W.1, the Appellant had taken her to a

Lodge and then fondled her body parts, no allegation of penetrative

sexual assault was put forth by her. P.W.13 the owner of the

Lodge where the alleged incident had occurred had seen the victim

on the road outside the Lodge‟s gate and not inside the room or in

the inside premise of the Lodge, raising doubts about the

Prosecution case and the veracity of the Appellant‟s allegation.

That, she complained to P.W.13 that the Appellant had verbally

abused her, but made no allegation of sexual assault. P.W.16 the

Doctor who examined the victim on the same day, found no signs

of use of force or injuries on the person of the victim to reveal

sexual assault. The blood group of the Appellant, as per P.W.17,

the RFSL Expert, is „O‟, but the blood group found on the

underwear of the victim was of the blood group „A‟. That, in fact,

the victim was a married woman as emanates from the deposition

of P.W.2 and P.W.15. Her date of birth was not proved by the said

two witnesses although they are her family and no birth certificate

was furnished to prove her minority. Relying on the decision of

this Court in Mangala Mishra @ Dawa Tamang @ Jack vs. State of

Sikkim it was contended that a photocopy, Exhibit 15, of the entry

made in the school admission Register was furnished, but the entry

Crl.A. No.36 of 2017 decided on 13-10-2018 : SLR (2018) SIKKIM 1373

Dilip Goel vs. State of Sikkim

went unproved. As per P.W.8, the Birth Certificate of the victim

girl was not found in the school records and he had therefore

furnished a photocopy of the relevant page of the school admission

Register pertaining to the year 2007 to prove that the victim was

born on 20-04-2002, viz., Exhibit 15. His evidence lacked personal

knowledge of the entry. P.W.2 also shed no light regarding the

entry in Exhibit 15 nor was he aware of the contents of Exhibit 2

which was scribed by P.W.3 on the dictation of the victim‟s mother.

That, P.W.3 lent no credence to the Prosecution case as no

evidence emerged in regard to the contents of Exhibit 2. The

Prosecution failed to produce and examine the victim‟s mother in

this context. The Seizure Memo, Exhibit 3, reveals that a total of

Rs.400/- in denominations of one hundred was seized by the Police

and the I.O. had remarked that the money was given to the victim

by the Appellant, but no investigation to unearth the reason for the

money having been handed over to P.W.1 was undertaken. The

evidence of the victim is untrustworthy and has failed to pass the

test of a sterling witness. Strength was drawn on this count from

the ratio of Krishan Kumar Malik vs. State of Haryana2. Hence, in view

of the facts and circumstances enumerated, the impugned

Judgment of the Learned Trial Court deserves to be set aside and

the Appellant acquitted all the offences charged with.

4. Per contra, Learned Additional Public Prosecutor urged

that penetrative sexual assault has been proved by the evidence of

the Prosecutrix beyond a reasonable doubt as she had

unequivocally stated that the Appellant inserted his finger into her

private part. That, she was unable to escape from the room as the

(2011) 7 SCC 130.

                          Dilip Goel   vs.    State of Sikkim




door was bolted from inside.                 Her evidence with regard to the

Appellant having touched her private part was consistent and the

finger nail injury on the face of the Appellant reveals that she had

fought off the Appellant when the incident was committed.

Accordingly, the impugned Judgment of the Learned Trial Court

requires no interference.

5. In the light of the arguments advanced above which

have been carefully considered and after examining all the

evidence and documents on record, the question that falls for

determination by this Court is -

(i) Whether the Prosecution was able to prove that the victim was a minor on the date of the alleged offence?

(ii) Whether the Appellant had committed the offences charged with?

6.(i) While addressing the first question supra, for

determination, P.W.1 the victim claimed to be 15 years old on the

date of her evidence before the Court, on 12-10-2017. The alleged

incident had occurred on 22-05-2017. P.W.2 the victim‟s step

father claimed that the victim was 16 years old but admitted that

she was a married woman. P.W.15 buttressed the evidence of

P.W.2 with regard to the marital status of the victim. P.W.2

claimed to have been married to the victim‟s mother for the past

15 years, if this evidence is believed to be true then it would lead

to the preposterous circumstance of the victim having been

admitted to school when she was one year old as Exhibit 15 the

certified true copy of the relevant page of the school admission

Register, furnished by P.W.8 the School Headmaster records the

date of birth of the victim as 20-04-2002. Although a column for

signature of father or guardian in Exhibit 15 reflects a name similar

Dilip Goel vs. State of Sikkim

to that of P.W.2, however, in his evidence before the Court P.W.2

has affixed his thumb impression. Consequently, the identity of

the person who furnished the date of birth and signed on Exhibit

15 was not established by the Prosecution. The evidence of the

I.O. fails to assist the Court in this direction. No effort was made

to show Exhibit 15 to P.W.2 to verify the facts reflected therein.

P.W.2 not having been shown the document could not verify its

contents. The mother of the victim was examined under Section

161 Cr.P.C. during investigation, but not before the Learned Trial

Court. Records before this Court reveal that her evidence was

slated for 13-11-2017 and the matter disposed of on 18-12-2018

only, in the interim no efforts were made to procure her presence

although she was said to left her husband and gone to Nepal. The

fact of her leaving for Nepal was not substantiated by any records

furnished either from the Panchyat or any other local governing

authority. P.W.8 failed to support the Prosecution case being

ignorant of the details of the entry at Exhibit 15 or at whose behest

the date of birth of the victim had been recorded as 20-04-2002.

(ii) Section 65 of the Indian evidence Act, 1872, provides

for cases in which secondary evidence relating to document may be

given. Exhibit 15 may have been relied on by the Prosecution in

terms of this provision, however it would do well to notice that the

provision does not do away the necessity of proof of such

documents. In Madan Mohan Singh and Others vs. Rajni Kant and

Another3 the Hon‟ble Supreme Court while differentiating between

admissibility of a document and its probative value opined that a

document may be admissible but as to whether the entries

(2010) 9 SCC 209

Dilip Goel vs. State of Sikkim

contained therein had probative value could be examined in the

facts and circumstances of a case. The relevant portion of the ratio

is extracted below for easy reference;

"18. Therefore, a document may be admissible, but as to whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case. The aforesaid legal proposition stands fortified by the judgments of this Court in Ram Prasad Sharma v. State of Bihar [(1969) 2 SCC 359 : AIR 1970 SC 326], Ram Murti v. State of Haryana [(1970) 3 SCC 21 : 1970 SCC (Cri) 371 : AIR 1970 SC 1029], Dayaram v. Dawalatshah [(1971) 1 SCC 358 : AIR 1971 SC 681], Harpal Singh v. State of H.P. [(1981) 1 SCC 560 : 1981 SCC (Cri) 208 : AIR 1981 SC 361], Ravinder Singh Gorkhi v. State of U.P. [(2006) 5 SCC 584 : (2006) 2 SCC (Cri) 632], Babloo Pasi v. State of Jharkhand [(2008) 13 SCC 133 : (2009) 3 SCC (Cri) 266], Desh Raj v. Bodh Raj [(2008) 2 SCC 186 : AIR 2008 SC 632] and Ram Suresh Singh v. Prabhat Singh [(2009) 6 SCC 681 : (2010) 2 SCC (Cri) 1194]. In these cases, it has been held that even if the entry was made in an official record by the official concerned in the discharge of his official duty, it may have weight but still may require corroboration by the person on whose information the entry has been made and as to whether the entry so made has been exhibited and proved. The standard of proof required herein is the same as in other civil and criminal cases.

19. Such entries may be in any public document i.e. school register, voters' list or family register prepared under the Rules and Regulations, etc. in force, and may be admissible under Section 35 of the Evidence Act as held in Mohd. Ikram Hussain v. State of U.P. [AIR 1964 SC 1625 : (1964) 2 Cri LJ 590] and Santenu Mitra v. State of W.B. [(1998) 5 SCC 697 : 1998 SCC (Cri) 1381 : AIR 1999 SC 1587].

20. So far as the entries made in the official record by an official or person authorised in performance of official duties are concerned, they may be admissible under Section 35 of the Evidence Act but the court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entries in school register/school leaving certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases.

21. For determining the age of a person, the best evidence is of his/her parents, if it is supported by unimpeachable documents. In case the date of birth depicted in the school register/certificate stands belied by the unimpeachable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, government hospital/nursing home, etc., the entry in

Dilip Goel vs. State of Sikkim

the school register is to be discarded. (Vide Brij Mohan Singh v. Priya Brat Narain Sinha [AIR 1965 SC 282], Birad Mal Singhvi v. Anand Purohit [1988 Supp SCC 604 : AIR 1988 SC 1796], Vishnu v. State of Maharashtra [(2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217] and Satpal Singh v. State of Haryana [(2010) 8 SCC 714 : JT (2010) 7 SC 500] .)

22. If a person wants to rely on a particular date of birth and wants to press a document in service, he has to prove its authenticity in terms of Section 32(5) or Sections 50, 51, 59, 60 and 61, etc. of the Evidence Act by examining the person having special means of knowledge, authenticity of date, time, etc. mentioned therein. (Vide Updesh Kumar v.

Prithvi Singh [(2001) 2 SCC 524 : 2001 SCC (Cri) 1300 : 2001 SCC (L&S) 1063] and State of Punjab v. Mohinder Singh [(2005) 3 SCC 702 : AIR 2005 SC 1868].)" [emphasis supplied]

(iii) In Mangala Mishra (supra) relied on by the Appellant‟s

Counsel Exhibit 7 the birth certificate of the victim was furnished,

however, the seizure of the document was suspect, the signatories

to the seizure memo were not produced as witnesses and the

origin of the document remained an enigma as no witness was

examined with regard to entries in any Register or Exhibit 7. This

Court observed that merely because Exhibit 7 was a document

furnished by the Prosecution it cannot be accepted as gospel truth

without fortification by way of supporting evidence sans

examination of its probative value.

(iv) In Birad Mal Singhvi vs. Anand Purohit4 the Supreme

Court was examining entries in the scholar‟s register, counterfoil of

Secondary Education Certificate of one Hukmi Chand Bhandari,

copy of tabulation record of the Secondary School Examination

1974 and copy of tabulation of record of the Secondary School

Examination of 1977 marked respectively as Exhibits 8, 9, 10 and

11. The Supreme Court observed inter alia that although Exhibits

8, 9, 10, 11 and 12 were relevant and admissible but the

documents had no evidentiary value for purpose of proof of date of

1988 (Supp) SCC 604

Dilip Goel vs. State of Sikkim

birth of Hukmi Chand and Suraj Prakash Joshi as the vital piece of

evidence is missing, because no evidence was placed before the

Court to show on whose information the date of birth of Hukmi

Chand and the date of birth of Suraj Prakash Joshi were recorded

in the aforesaid documents. It was further observed that neither of

the parents of the two candidates nor any person having special

knowledge about their date of birth was examined by the

Respondent to prove the date of birth as mentioned in the

aforesaid documents. That, parents or near relations having

special knowledge are the best person to depose about the date of

birth of a person. If entry regarding date of birth in the scholar‟s

register is made on the information given by parents or someone

having special knowledge of the fact, it would have probative

value. That, the date of birth mentioned in the scholar's register

has no evidentiary value unless the person who made the entry or

who gave the date of birth is examined.

(v) On the touchstone of the enunciations supra it

becomes apposite to notice that Exhibit 15 is of no value to the

Prosecution case. P.W.2 did not give evidence about the victim‟s

date of birth or prove the contents of Exhibit 15 which in fact he

was not shown, neither did P.W.15 her maternal aunt and there

was no other person to establish her age as being 15 given that

the Prosecution did not examine her mother. As held in Birad Mal

Singhvi and Madan Mohan Singh (supra), parents are the best

persons to depose about the age of a child, but the entries in

Exhibit 15 were not proved by P.W.2 or the victim‟s mother.

P.W.15 being the maternal aunt could well have had personal

knowledge of the victim‟s age, but her evidence is devoid of such

Dilip Goel vs. State of Sikkim

statement. This Court cannot arrive at a finding that the victim

was a child in terms of the POCSO Act, 2012, in the absence of any

evidence on this count. It may relevantly be mentioned that the

Learned Trial Court accepted Exhibit 15 in totality stating that the

Appellant did not refute or controvert the materials on record.

However, the evidence of P.W.8, the only person who identified the

document being the Headmaster of the School concerned stated

that he did not know on what basis the date of birth of the victim

was recorded. In the face of such evidence, it goes without saying

that the Prosecution has failed to discharge the obligation cast on it

to prove its case beyond reasonable doubt. The first question

therefore has to be answered in the negative.

7(i). Traversing now to the second question formulated

supra it is relevant to notice that none of the Prosecution witnesses

are ocular, save for P.W.13 who I hasten to clarify did not witness

the incident but had seen the victim outside the gate of the Lodge

that he owns, the same Lodge where the Appellant had checked in

on 17-05-2017 as supported by Exhibit 5, the Register of the

guests of the Lodge and where the offence was allegedly

committed, as per P.W.1. All that the Court can rely on is the

statement of the victim and therefore it is essential to assess

whether her evidence would pass the muster of a sterling witness.

The victim narrated that the incident pertained to the month of

June, 2017, when she was residing with her parents. Contrarily,

P.W.2 stated that during the relevant time she was living with her

maternal grandmother. Concededly, on the evening prior to the

incident, she received a call from an unknown number on her

grandmother‟s mobile number which she was using and she talked

Dilip Goel vs. State of Sikkim

to the caller who seemed to know her. Later, she received few

more calls from the same number, but she did not answer it. The

following morning when she was going to her paternal uncle‟s place

she stopped at a place where there was a Peepal tree where the

Appellant approached her and struck a conversation with her.

Thereafter, he asked her to accompany him to the market and took

her to a Lodge there. He dragged her to his room through a

narrow passage in the Lodge. After reaching the room, the

Appellant bolted the door from inside, touched and fondled her

breasts and though she protested he continued his sexual assault

on her. He removed her trousers and manipulated her private part

and also inserted his finger into her private part. As she was alone

in the room she was nervous, but at that moment the Appellant

got a call on his mobile phone. When he went to attend to the call

she took the opportunity to call her aunt and informed her about

the situation, who in turn advised her to approach the Police

regarding the matter. She then started ringing the Police

emergency number, but the Appellant entered the room and asked

her not to inform the Police and gave her Rs.400/- Indian currency

notes in the denomination of Rs.100/-. Thereafter, she left the

room and straightaway went to the Police Station and informed the

Police about the incident. They asked her to accompany them to

the Lodge in search of the Appellant, where on reaching they found

that the Appellant was about to leave, however the Police

apprehended him. The victim was then forwarded to the District

Hospital for medical examination. She identified Exhibit 1 shown to

her in three pages as the statement made by her before a

Magistrate and recorded by the Magistrate and she had also signed

Dilip Goel vs. State of Sikkim

on the document. That, later she was taken to the State Jail at

Rongyek for identification of the Appellant during which time she

identified him on all three occasions. She identified M.O.II as the

track pant and M.O.III as the underwear worn by her at the

relevant time. Under cross-examination, she failed to identify

M.O.I (collectively) as the same Rs.100/- denomination Indian

currency notes which were handed over by her to the Police, during

the relevant time. Admittedly, she did not make any hue and cry

when the Appellant was dragging her to his room. She also

admitted that when the Appellant went to attend to his mobile

phone, the Lodge in which she was taken was not locked or latched

by the Appellant. The Police did not seize the mobile phone which

she was carrying on the relevant day. She had also not inform her

parents that she was going to her uncle‟s house on the relevant

day neither had she inform the uncle or aunt to whose house she

was going on that day. She had left school in November, 2015.

That, she had resumed her studies in the Government School after

the alleged incident, but presently was not attending school due to

ill-health. She further admitted that the Appellant saw her leaving

the Lodge.

(ii) P.W.13 the owner of the Lodge was aware that the

Appellant had checked in to his lodge at the relevant period, having

introduced himself as a Tower Mechanic of Airtel Telecom Services.

In the month of May, 2017, which was a Monday, a day on which

the shops in the particular market are usually closed, at around 10

to 11 a.m. he saw the Appellant inside the gate of the Lodge and

the victim on the road outside the gate. The victim was

complaining that the Appellant had verbally abused her and she

Dilip Goel vs. State of Sikkim

asked him where the Police Station was. He accordingly indicated

to her the direction of the Police Station. He noticed that the

Appellant was preparing to leave the Lodge, but he restrained him

as the victim had gone to the Police Station. He enquired from the

Appellant as to what the matter was and the Appellant informed

him that the victim had come to collect money. He had given her

Rs.400/-, with which she was not satisfied. After some time, the

Police arrived at his Lodge and took both the Appellant and the

victim with them and later seized Exhibit 5. His cross-examination

revealed that he did not hear the voice of the Appellant or the

victim prior to him having seen the victim on the road outside the

gate and he neither saw the victim entering nor leaving the Lodge.

According to him, the Appellant was not nervous when he was

preparing to leave the Lodge for his work.

(iii) The evidence of P.W.2 was of no assistance to the

Prosecution case. He was called to the Police Station by the Police

at around 11.30 a.m. when he was at work, informing him that an

incident had occurred concerning his daughter. He along with his

wife, a worker in a GREF construction site went to the Police

Station. He lodged Exhibit 2 before the SHO regarding the

incident. The contents were dictated by his wife and scribed by

P.W.3, both P.W.2 and P.W.3, however, failed to prove the

contents of the FIR. P.W.3 and P.W.4 were witnesses to the

seizure of Rs.400/- in the denomination of Rs.100/- each, but the

currency notes as per P.W.4 were in the possession of the Police.

They were unaware of the incident, hence the Prosecution could

draw no succour from their evidence. P.W.11 a neighbour of

P.W.13 was witness to the seizure of the Guest Entry Register

Dilip Goel vs. State of Sikkim

Exhibit 5 from P.W.13, but he stated nothing pertaining to the

incident.

(iv) The wearing apparels of the victim M.O.II and III were

seized in the presence of P.W.12 and P.W.14, but they were

unaware of the ownership of the articles of clothing. P.W.15 the

aunt of the victim did not know about the incident save to the

effect that some time in the year 2017 she received a phone call

from the victim informing her that one man was chasing her, she

advised her to call the Police emergency number. P.W.15 the aunt

of the victim claims to have received a call on her mobile phone

from the victim sounding nervous and informing her that a man

was chasing her. She advised the victim to call the Police.

(v) P.W.16 the Doctor, who examined P.W.1, stated as

follows;

"On 22.05.2017, I examined a minor girl aged about 15 years, brought by Constable Sabina Pradhan with an alleged history of sexual assault by an unknown person, around 55 years of age, male who pulled to his room and tried to have sexual intercourse and touched her breasts and put his finger on her private part. On my examination of the said minor girl, I found the following;

Her vitals were normal. Bilateral breast - normal. Mons pubis - normal. Labia majora and minor - normal. Hymen-no fresh injuries seen.

Sample was not taken since the victim did not give history of sexual intercourse.

My final opinion was there were no signs of use of force, lack of genital injuries could be because of use of lubricant, it could also be because there was a fingering with the use of lubricant or overpowered or threatened. Sexual violence cannot be ruled out."

Under cross-examination, he admitted that the victim did not

have fresh injuries on the hymen and labia majora and labia

minora neither did she have any other injuries on her body. He

also admitted that his opinion to the extent that sexual violence

Dilip Goel vs. State of Sikkim

could not be ruled out was based on the history of the case of the

victim.

(vi) P.W.17, the Junior Scientific Officer, Biology Division,

RFSL examined M.O.II a grey colour track pant of the victim,

M.O.III one black underwear of the victim and sample blood of the

Appellant M.O.IV. The sample blood M.O.IV of the Appellant, gave

a positive test for the blood group „O‟ while the blood detected in

M.O.II and M.O.III (evidently of the victim) tested positive for the

blood group „A‟. The evidence of P.W.17 was brushed off as

immaterial for the case by the Learned Trial Court but this

conclusion was not buttressed by any reasoning.

(vii) The Doctor who examined the Appellant was P.W.18

who had been brought to him with a history of being involved in

the sexual offence. He found no injuries on the body of the

Appellant. The Appellant had not consumed alcohol or any other

intoxicant at the time of his examination. His evidence thus

contradicts the argument of the Learned Additional Public

Prosecutor who had stated that a finger nail injury was seen on the

Appellant‟s face.

(viii) P.W.19 the Nodal Officer of Bharti Airtel Ltd. testified

that the I.O. of the case had made a requisition seeking

certification of the Call Detail Record (CDR) of two mobile numbers

which was duly furnished to the I.O. and that there had been

incoming and outgoing call between the said mobile numbers. The

Prosecution however having failed to exhibit any of the documents

obtained from P.W.19, his evidence is thus of no relevance to the

case, added to this is the fact that the cell phone of the victim was

not seized by the Police to establish who had made the first call or

Dilip Goel vs. State of Sikkim

whether the victim was in possession of a mobile phone. The

statement of P.W.1 that she had called the Police emergency

number of the Lodge‟s room also remained unproved as her mobile

phone was not seized to verify the truth of her statement.

(ix) The I.O. P.W.20 during his evidence admitted that the

Appellant did not try to abscond although there was a time gap of

one hour 20 minutes between the registration of the FIR and his

arrest.

8. The Learned Trial Court while convicting the Appellant

was impressed by the statements of the victim and found her

testimony to be cogent, believable and trustworthy, but has failed

to detail the reasons for arriving at such a conclusion. At

Paragraph 17 of the impugned Judgment, the Learned Trial Court

has only extracted the evidence of P.W.1 and concluded that there

was no reason to doubt her evidence. Reproducing her evidence

verbatim does not suffice to establish a finding of truthfulness or

trustworthiness. The Learned Trial Court has also placed reliance

on Section 164 Cr.P.C. statement of the victim and concluded that

as the minor victim was not confronted with her Section 164

Cr.P.C. statement during cross-examination, her evidence therein

remained uncontroverted. On this aspect, it is imperative to point

out that the Section 164 Cr.P.C. statement of a victim is not

substantial evidence and can only be looked into only for the

purpose of corroboration or contradiction. Neither was done. In

the first instance all that the victim has done is identify Exhibit 1 as

her statement recorded by a Magistrate but the contents have not

been proved by her in the Court nor was it read out to her. Her

story of Rs.400/- being given to her by the Appellant to prevent

Dilip Goel vs. State of Sikkim

her from reporting the matter to the Police appears to be

unbelievable for the reason that she has accepted it and still gone

to the Police. The Lodge owner appears to have been present in

the premises but he did not notice the victim‟s entry into or exit

from the Lodge raising suspicious of whether she really was forced

into the Lodge. She raised no cries for help when the Appellant

allegedly dragged her into the Lodge which is indeed an unnatural

reaction if one is protesting. It is not her case that her mouth was

closed or that her limbs were tied. Above all, it is unfathomable as

to why she would mutely go where led by the Appellant as she has

stated categorically that, "the accused asked me to accompany him to

..... Bazaar and took me to a Hotel ................." She made no protest to

his proposition and reached his Lodge without demur. There

appears to be no physical coercion by the Appellant. P.W.13 saw

her only outside the gate of the Lodge and at that time all that she

told him was that the Appellant had abused her verbally and she

was going to report the matter to the Police. No allegation of

sexual assault was made by her in the first instance to P.W.13.

P.W.13 then restrained the Appellant from leaving the Lodge for his

work at which time the Appellant did not appear nervous and he

made no effort to abscond which is a mitigating circumstance in his

favour as the Police arrived at that spot after about one and the

half hours of the Appellant being detained by P.W.13. There is no

proof whatsoever of use of force by the Appellant on the victim

duly buttressed by the medical examination conducted on her

which shows no injuries, not only in her genital but also on her

person. Thus, in the light of the evidence of P.W.1 even if it is to

be assumed that such an incident took place in the Lodge it was

Dilip Goel vs. State of Sikkim

evidently consensual and the victim being peeved by the Appellant

making over only Rs.400/- to her took steps against him. The

Learned Trial Court has not discussed how the money came into

the hands of the Appellant, but concluded sans grounds that the

Appellant was guilty. The Prosecution made no effort to investigate

into this aspect and no reasons emanated by investigation as to

why the Appellant would have handed over money to her. It also

appears that post the lodging of Exhibit 2 she prepared to establish

that she was a minor and consequently rejoined school although

P.W.2 had deposed that she had already left school in 2015. The

victim however volunteered to add that she was not attending

school due to ill-health. It is also in the statement of the victim

that on the relevant day she was going to her paternal uncle‟s

place, but on the way the Appellant met her after which the alleged

incident took place. It may relevantly be mentioned that no

investigation ensued with regard to the existence of such paternal

uncle to establish the veracity of the victim‟s statement. The

mother of the victim is alleged to have conveniently left Sikkim,

but no effort was made by the Prosecution to trace her out and

bring her back nor is there any report about the truth of this

statement, as already discussed supra. The non-seizure of the

mobile phone of the victim also lends suspicion to her statement

regarding a third person calling her before the day of incident as

also her call to P.W.15 made after the incident occurred. While

pausing here momentarily it is pertinent to note that P.W.15 the

victim‟s aunt despite stating that the victim sounded nervous made

no effort to inform the Police or the parents of the victim regarding

the alleged phone call received by her from P.W.1 and surprisingly

Dilip Goel vs. State of Sikkim

failed to extend help to her. Her cell phone was not seized during

investigation to test the authenticity of her statement. Her

evidence fails to inspire the confidence of this Court.

9. In light of all the evidence that has been discussed

hereinabove, I am of the considered opinion that the second

question also deserves to be determined in the negative. The

Prosecution has failed to establish its case against the Appellant

beyond a reasonable doubt and he consequently deserves an

acquittal.

10. In the end result, the Appellant is acquitted of the

offence under Section 3(b) punishable under Section 4 of the

POCSO Act, 2012, Section 342 and Section 376(2)(i) of the IPC.

11. Appeal is allowed.

12. The conviction and sentence imposed on the Appellant

vide the impugned Judgment and Order on Sentence of the

Learned Trial Court are set aside.

13. The Appellant be set at liberty forthwith if not required

to be detained in any other case.

14. Fine, if any, deposited by the Appellant in terms of the

impugned Order on Sentence, be reimbursed to him.

15. No order as to costs.

16. Copy of this Judgment be forwarded to the Learned Trial

Court for information and compliance, along with its records, if

any.

( Meenakshi Madan Rai ) Acting Chief Justice 29-09-2021

Approved for reporting : Yes ds