THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
DATED : 22nd April, 2022
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SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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Crl.A. No.13 of 2021
Appellant : Pema Tshering Bhutia
versus
Respondent : State of Sikkim
Appeal under Section 374(2) of the
Code of Criminal Procedure, 1973
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Appearance
Ms. Zola Megi, Advocate for the Appellant.
Mr. S. K. Chettri, Additional Public Prosecutor for the State-
Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The Appellant was convicted under Section 354 and
Section 506 (First Part) of the Indian Penal Code, 1860 (for short
"IPC"), in Sessions Trial (POCSO, Act) Case No.05 of 2021, vide the
impugned Judgment, dated 28-08-2021. By the impugned Order
on Sentence, dated 31-08-2021, he was directed to undergo
imprisonment for one year under Section 354 of the IPC, with fine
of Rs.1,000/- (Rupees one thousand) only, and imprisonment of
one year under Section 506 of the IPC, with fine of Rs.1,000/-
(Rupees one thousand) only, both sentences of fine bore default
clauses of imprisonment. The sentences of imprisonment were
ordered to run concurrently. Aggrieved thereof, the Appellant is
before this Court assailing both and seeking an acquittal.
2(i). The Prosecution case arose on the basis of Exhibit 1, an
FIR, dated 06-04-2021, lodged by P.W.1, the District Child Crl.A. No.13 of 2021 2
Pema Tshering Bhutia vs. State of Sikkim
Protection Officer (DCPO), informing therein that the victim, P.W.9,
aged about 11 years, was produced before the Child Welfare
Committee (CWC), North Sikkim, on 05-04-2021, by the Police.
During the victim‟s counselling by P.W.1, she revealed that in
2019, one 'A.N.' committed aggravated penetrative sexual assault
on her and her cousin in his room. Thereafter, when she along
with her foster parents changed residence to a place 'C' the present
Appellant sexually assaulted her by touching her private parts and
kissing her from January, 2021, up to March, 2021. He threatened
her with dire consequences if she reported the assault to any
person. Exhibit 1 was duly registered at the concerned Police
Station on the same date, under Sections 376/506 of the IPC read
with Sections 6 and 10 of the Protection of Children from Sexual
Offences Act, 2012 (for short "POCSO Act"), against the Appellant
and the said 'A.N.' jointly.
(ii) During the course of investigation the victim‟s
statements under Section 161 and Section 164 of the Code of
Criminal Procedure, 1973 (for short, "Cr.P.C.") were recorded. On
completion of investigation, a common Charge-Sheet was
submitted under Section 376 of the IPC read with Section 6 of the
POCSO Act against the said 'A.N.' and under Sections 354/506 of
the IPC read with Sections 4 and 10 of the POCSO Act against the
Appellant herein. The Learned Special Judge (POCSO Act)
bifurcated the cases of the two accused persons named above and
registered the case against the Appellant as Sessions Trial (POCSO,
Act) Case No.05 of 2021 and commenced trial by framing Charge
under Section 7 of the POCSO Act and Section 354 read with
Section 506 of the IPC. On his plea of "not guilty", the Prosecution Crl.A. No.13 of 2021 3
Pema Tshering Bhutia vs. State of Sikkim
examined 12 (twelve) witnesses, on closure of which, the Appellant
was examined under Section 313 of the Cr.P.C. to enable him to
explain the evidence appearing against him and his responses
recorded. He sought to be and was examined as his own witness.
Arguments advanced by Learned Counsel for the parties were
heard by the Learned Trial Court. On consideration of the entire
evidence on record the impugned Judgment and Order on Sentence
was pronounced.
3. In Appeal, Learned Counsel for the Appellant contended
that the entire Prosecution case is based on the victim‟s statement
which however has been consistently improved, from her Section
161 Cr.P.C. to her Section 164 Cr.P.C. statements and in her
deposition before the Court. Her evidence does not qualify as
being that of a sterling witness and conviction cannot be sustained
on such erratic evidence. Towards this end, Learned Counsel
placed reliance on Sangam Rai and Another vs. State of Sikkim1 and
Rai Sandeep alias Deepu vs. State of NCT of Delhi2. Learned Counsel
carefully led this Court through the evidence of the Prosecution
witnesses and urged that the question of the Appellant sharing the
victim‟s room did not arise as it is the victim‟s own statement that
when guests came to the house she used to share a room with her
foster mother. That, her foster father, a teacher was posted in a
remote area of North Sikkim and occasionally came home. That
apart, it is not clear when the alleged incident took place in view of
the variations in her statement, viz., in her Section 164 Cr.P.C.
statement the incident(s) allegedly took place in 2019, whereas in
Exhibit 1 lodged by P.W.1, she reported that the incident took place
1 SLR (2020) Sikkim 511 2 (2012) 8 SCC 21 Crl.A. No.13 of 2021 4
Pema Tshering Bhutia vs. State of Sikkim
from January, 2021 up to 30th March, 2021. In her evidence
before the Court she has deposed that it was till April, 2021. That,
the description of the acts of sexual assault also vary in her
statements. As per the FIR the sexual assault by the Appellant was
by touching the victim‟s private parts and kissing her. In her
Section 164 Cr.P.C. statement, she has added that he asked her to
fondle his private part. In her evidence before the Court she has
exaggerated her previous statements and added that besides
touching her private parts, breasts and kissing her on her lips he
also committed penetrative sexual assault. The attention of the
Court was also invited to Exhibit 3, the counselling report of the
victim prepared by P.W.1 where the acts of sexual assault
committed by the Appellant differs from the acts described in the
FIR, Section 164 Cr.P.C. statement and deposition in Court. That,
the Appellant in fact is a permanent resident of another place in
North Sikkim and sometimes visited the victim‟s foster mother (his
sister) but very rarely spent the night in her house. Considering
that the entire case of the Prosecution is based on the evidence of
the victim which is neither cogent nor consistent, the impugned
Judgment deserves to be set aside and the Appellant acquitted of
the offence under Sections 354 and 506 of the IPC.
4. Learned Additional Public Prosecutor resisting the
arguments of Counsel for the Appellant relied on the sketch map
Exhibit 23 and contended that the house which is the rented
quarters, of the foster mother of the victim, consisted only of two
rooms of which one was occupied by the foster mother while the
other was occupied by the victim and the Appellant whenever he
visited. Learned Additional Public Prosecutor also drew strength Crl.A. No.13 of 2021 5
Pema Tshering Bhutia vs. State of Sikkim
from the evidence of P.W.1 to P.W.5 to establish that the
Prosecution had brought home the Charge under Sections 354 and
506 of the IPC and urged that the impugned Judgment requires no
interference. To buttress his submissions, reliance was placed on
Damber Singh Chettri vs. State of Sikkim3.
5. The submissions of Learned Counsel which were heard
in extenso have been afforded due consideration and the records
minutely perused.
6. Although the Prosecution claimed that the victim was a
minor this remained unproved for reasons enumerated by the
Learned Trial Court in Paragraphs 12 to 17 of the impugned
Judgment. This finding of the Learned Trial Court was unassailed
by the Prosecution. Further, the conclusion of the Learned Trial
Court that there was no offence under Section 7 of the POCSO Act
has also remained unquestioned by the Prosecution. The only
question that falls for consideration before this Court is; Whether
the Learned Trial Court erred in convicting the Appellant under
Sections 354/506 of the IPC?
7(i). Section 354 of the IPC deals with assault or criminal
force to woman with intent to outrage her modesty. The Section
reads as follows;
"354. Assault or criminal force to woman with intent to outrage her modesty.─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 a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.
..........................................................."
(ii). Section 506 of the IPC deals with punishment for
criminal intimidation and reads as follows;
3
SLR (2018) Sikkim 783 Crl.A. No.13 of 2021 6
Pema Tshering Bhutia vs. State of Sikkim
"506. Punishment for criminal intimidation.─Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
..........................................................."
Thus, the essential ingredients for an offence under Section
354 of the IPC are that, (a) the assault must be on a woman (b)
the accused must have used criminal force on her (c) the criminal
force must have been used on the woman intending to outrage her
modesty.
8. In State of Punjab vs. Major Singh4, the Hon‟ble Supreme
Court while examining the provision of Section 354 of the IPC and
the expression "outrage her modesty" therein, observed as follows;
"J.R. MUDHOLKAR, J.-- ........................................
12. ...................................... ....................... In my judgment when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that act must fall within the mischief of this section. What other kind of acts will also fall within it is not a matter for consideration in this case.
13. In this case the action of Major Singh in interfering with the vagina of the child was deliberate and he must be deemed to have intended to outrage her modesty. I would, therefore, allow the appeal, alter the conviction of the respondent to one under Section 354 IPC and award him rigorous imprisonment to a term of two years and a fine of Rs 1000 and in default rigorous imprisonment for a period of six months. Out of the fine, if realised, Rs 500 shall be paid as compensation to the child.
R.S. BACHAWAT, J.-- ...................................
15. .................................... The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive, as for example, when the accused with a corrupt mind stealthily touches the flesh of a sleeping woman. She may be an idiot, she may be under the spell of anaesthesia, she may be sleeping, she may be unable to appreciate the significance of the act; nevertheless, the offender is punishable under the section." [emphasis supplied]
4 AIR 1967 SC 63 Crl.A. No.13 of 2021 7
Pema Tshering Bhutia vs. State of Sikkim
9(i). On the anvil of these observations, I proceed to
examine whether the conviction of the Appellant can be sustained
based on the sole testimony of the victim P.W.9.
(ii) In Exhibit 3, the statement of the victim recorded by
P.W.1 during her counselling revealed that "Since January, 2021,
uptil 30th March, 2021, A.P. alias P.B.A.K. (the Appellant) brother
of her foster parent (foster mother), ....... sexually assaulted her
(sucked her breast, made her touch his penis, touched her private
parts, kissed her lips, neck etc.). He threatened her with dire
consequences if she shared about the assault to anyone (he
threatened to tie her up and dump her in the water tank due to
which she felt terrified and went to the police station herself)."
[emphasis supplied]
(iii) In Exhibit 1, the FIR, P.W.1 has reported that the
Prosecutrix revealed to her that since January, 2021 until 30th
March, 2021, the Appellant sexually assaulted her by touching her
private parts, kissing her, etc., and threatened her with dire
consequence if she reported the assault.
(iv) In Exhibit 17 the Section 164 Cr.P.C. statement of the
victim, which she duly identified, she admitted in the Court that
she had neither stated the time of the sexual assault nor the place
of occurrence of the alleged incident. Her statement in Exhibit 17
is as follows;
"I do not know the exact date, month and time however, it was in the year 2019 when my brother S. had passed away and it was just about two days when I was mopping the floor, A.N. caught hold of me and started kissing me on my lips and my chest. He then also inserted his private part (talam) inside my vagina and he also asked me to suck his private part. He then threatened me not to speak about the same with anyone. I then went to my cousin mummy N.K.B.
and narrated the incident but, in vain. The day after the incident, A. K. P. B. (Appellant), who is the brother of N. K. B. also kissed me on my neck and Crl.A. No.13 of 2021 8
Pema Tshering Bhutia vs. State of Sikkim
pinched me on my bosom and my private part. He had also asked me to play with his private part. He also threatened saying that he would tie my hands and legs and throw me inside the water tank and false out (sic) the story that she had passed away with her own will. One fine day, after school at around 2:30 pm I went to the police station and lodged the complaint against both P.B. and N.B. Thereafter, I was also taken for medical examination by lady Police Officer." [emphasis supplied]
(v) In her testimony before the Court P.W.9 deposed that
"It was on Tuesday but I do not know the month it was till April,
2021 accused (Pema Tshering Bhutia) used to touch my breast &
private parts, kissed on my lips & inserted his private part in my
mouth and also put his private part into my vagina (objected to).
This incident took place at C., North Sikkim when I was staying
with N.K.B. & L.L. (foster parents) & accused (Pema Tshering
Bhutia). Accused Pema Tshering Bhutia was staying with us by
virtue of his relation as brother of N.K.B. (foster mother). The
above offence was continuously committed by accused both during
day & night time. I was also threatened with dire consequences
saying that if I divulge the contents of incidents to anyone else
then he would tie my hands, legs and mouth and throw inside
water tank. ...................... Accused also put knife on my neck
threatening that if I divulge about incident he would kill me
(objected to). I was not allowed to attain (sic, attend) school for
the whole week except Monday by accused Pema Tshering Bhutia
but I do not know the reason for the same. I was also compelled
to stay at home to do household works by bolting the door by the
accused from outside. .................... I also came earlier to depose in
connection to this case before one Lady Officer. ......................
Exhibit- 17 is my section 164 Cr.P.C. statement but I cannot
identify my thump (sic, thumb) impressions." [emphasis supplied] Crl.A. No.13 of 2021 9
Pema Tshering Bhutia vs. State of Sikkim
(vi) While considering Exhibit 3 and Exhibit 1 it is relevant
to notice that the victim allegedly told P.W.1 during counseling that
the acts of sexual assault by the Appellant took place from
January, 2021 up to 30th March, 2021 whereas in Exhibit 17 the
incident is of 2019 and it is a day after 'A.N.' sexually assaulted her
that the Appellant also allegedly sexually assaulted her. The
Counselling Report has revealed that the Appellant threatened to
put her into water tank if she disclosed the incident to anyone,
being terrified she went to the Police Station. Her appearance
before the Police Station is however only on 05-04-2021 and
neither in the year 2019 nor between January, 2021 to March,
2021 thereby revealing a conundrum in the dates of the incidents
stated by the Prosecutrix.
(vii) Her statement before the Court that the act of sexual
assault was in April, 2021 is contradictory to her previous
statements supra. Further, the acts of sexual assault were
allegedly committed continuously during the day and night by the
Appellant. Admittedly she was living with her foster parents, in
such circumstances continuous perpetration of the acts of sexual
assault during the day and by night under the same roof appear to
be far-fetched and inconceivable besides lacking in details of time
and place.
(viii) There is no revelation to P.W.1 by P.W.9 in Exhibit 3
that the Appellant inserted his genital into hers, the allegation
being limited to him touching her private parts and kissing her. She
has not given specifics about any event preceding the acts of
sexual assault nor details of the places of sexual assault to lend
credence to her allegations. She allegedly went to the P.S. on Crl.A. No.13 of 2021 10
Pema Tshering Bhutia vs. State of Sikkim
05-04-2021 and informed the incident to the Police, however did
not allege therein that the threat was post the commission of an
act of sexual assault on her, on the same day, by the Appellant. As
per P.W.9 she informed the Police of the incident but P.W.8 the
SHO at the P.S. deposed that on 05-04-2021 when the victim came
to the Police Station at around 3 p.m. despite enquiry by one lady
constable she did not give any statement to her, he thus forwarded
her to the One Stop Centre for counseling by P.W.1. It was only
following such counseling that Exhibit 1 came to be lodged by
P.W.1 and the case were registered against the Appellant and
'A.N.'. Although in her evidence-in-chief, she went on to state that
there were two rooms in the house at 'C' of which one room was
occupied by her foster parents and another room by her and the
Appellant, under cross-examination, it transpired that one room at
the residence in 'C' was occupied by her foster mother and one
room with the TV was given to her, but, when guests and relatives
came they used to reside in her room while she used to stay with
her foster mother.
(ix) It is also relevant to notice that when she was
confronted with the contents of her Section 161 Cr.P.C. statement
in the Learned Trial Court, she admitted that she did not tell the
Police that the Appellant had inserted his private part into her
mouth and into her private part.
(x) Her statement that she used to regularly attend school
when it was open, demolishes her statement that the Appellant did
not allow her to attend School for one whole week, besides it is
incomprehensible as to how the Appellant could prevent her from
going to School when she was under the charge of her foster Crl.A. No.13 of 2021 11
Pema Tshering Bhutia vs. State of Sikkim
parents. It is not the Prosecution case that her foster parents
P.W.4 and P.W.5 mistreated her. There is no evidence extracted
to establish that she was placed under the charge of the Appellant
at anytime by P.W.4 and P.W.5. Relevantly, during her cross-
examination she deposed that her natural mother came to the One
Stop Centre to see her. P.W.2 her natural mother did not
corroborate this aspect of her narration neither did P.W.1 the
Complainant. The Prosecution failed to establish by any proof
whatsoever that the Appellant and the victim shared a room in the
house of her foster parents. P.W.4 shed no light on this aspect nor
did P.W.5 (the victim‟s foster mother) and neither did the
Prosecution deem it essential to declare these witnesses hostile.
(xi) P.W.5, under cross-examination admitted that when
she reached the Police Station the Police enquired whether she had
beaten up the Prosecutrix based on the victim‟s account to them.
She informed them that the victim was mischievous and had tried
to run away from her home. The Police told her to hand over the
victim to her parents upon which P.W.5 called P.W.2 and requested
her to take her. That, earlier the victim had broken a „piggy bank‟
and attempted to run away, hence their decision not to keep her
but P.W.2 insisted that they do. It has to be borne in mind that
P.W.2, P.W.4 and P.W.5 are all Prosecution witnesses but have
failed to support the Prosecution case on any aspect whatsoever.
P.W.10 the Chairperson, Child Welfare Committee, North Sikkim, in
her evidence stated that during counseling the two Prosecutrixs
(refer to Exhibit 1) constantly altered their statements. Thus, on
comparison of the statements made by P.W.9 in Exhibit 3 to P.W.1,
the contradictions in her Section 161 Cr.P.C. to the Magistrate Crl.A. No.13 of 2021 12
Pema Tshering Bhutia vs. State of Sikkim
under Section 164 Cr.P.C. and ultimately before the Court, it
emanates that her statements are rife with contradictions and
augmentations. P.W.9 has made an incessant bid to improve her
case by inclusion of sexual acts not alleged earlier.
10(i). In the light of all the contradictions, it would do well to
examine the medical report of the victim Exhibit 12 prepared by
Dr. Komal Pradhan, P.W.7 to assess whether the allegations made
by the victim against the Appellant stood corroborated by medical
examination. Exhibit 12 reads as follows;
"Forwarded for medical examination in c/w Mangan P.S. FIR case No.5(04)2021 dated 6/04/2021 u/s 376 IPC r/w sec 6 & 8 of Pocso act 2012. A prosecution victim was reportedly sexually assaulted by one T.N.B. in the year 2019 at Old Bazar, L.M., N. S. Thereafter she .... shifted along with her foster parents at C., mean while one P.B. of C. sexually assaulted the above named victim thereby touching her private parts and kissing all over her body since January 2021 till 30th March 2021.
Head to toe examination → Multiple old linear abrasions seen in B/L knee limbs.
(1) V shaped linear abrasion over front of Left Thigh = 3 cm.
(2) Linear abrasion over Left (illegible) region = 2 cm.
(4) Linear abrasion over Back of Rt. Thigh = 3 cm.
(5) Linear abrasion calf region = 2 cm.
(6) Linear abrasion = 4 cm fist below Rt. knee
joint.
Genital examination :
Pubic hair → not developed.
Vulva → NAD
Labia majora → NAD
Labia minora → NAD
Vestibule → NAD
Fourchette → NAD
Hymen → torn (Healed margins)
Vagina → permits one finger easily.
Perineum → NAD" [emphasis supplied]
Crl.A. No.13 of 2021 13
Pema Tshering Bhutia vs. State of Sikkim
(ii) It is evident that Exhibit 12 lends no succour to the
Prosecution case. Even if the Prosecution evidence of threat held
out by the Appellant to P.W.9 is to be taken at face value and an
assumption drawn that the threat was on a heels of a sexual
assault, the medical evidence indubitably belies it.
11. In State of H.P. vs. Shree Kant Shekari5 the Hon‟ble
Supreme Court held as follows;
"21. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands on a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is physical as well as psychological and emotional. However, if the court on facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration, as understood in the context of an accomplice, would suffice." [emphasis supplied]
In view of the vacillating evidence of the victim the
evidence of P.W.7 and Exhibit 12 have been pressed into service
but both do not fortify the Prosecution case.
12. The reliance by Learned Additional Public Prosecutor on
Damber Singh Chettri (supra) is misplaced. The facts and
circumstances in that case and the instant case have to be
distinguished as the evidence of the P.W.9 herein is changing
randomly, besides being unsupported by medical evidence. It is
now settled law that the evidence of the victim as a sole witness is
required to be cogent, consistent and unwavering qualifying her as
a sterling witness and her evidence as worthy of reliance. The
evidence of P.W.9 fails on the three anvils reflected above. This
Court is conscious that minor discrepancies in the evidence of the 5 (2004) 8 SCC 153 Crl.A. No.13 of 2021 14
Pema Tshering Bhutia vs. State of Sikkim
victim has to be overlooked, at the same time the Court is to be
circumspect and wary before relying on such evidence to convict an
accused. The principle of the Prosecution case being proved
beyond a reasonable doubt cannot be lost sight of in the alacrity to
rescue a victim of alleged sexual assault.
13. On these lines, the Hon‟ble Supreme Court in
Shivasharanappa and Others vs. State of Karnataka6 observed as
follows;
"17. Thus, it is well settled in law that the court can rely upon the testimony of a child witness and it can form the basis of conviction if the same is credible, truthful and is corroborated by other evidence brought on record. Needless to say, the corroboration is not a must to record a conviction, but as a rule of prudence, the court thinks it desirable to see the corroboration from other reliable evidence placed on record. The principles that apply for placing reliance on the solitary statement of the witness, namely, that the statement is true and correct and is of quality and cannot be discarded solely on the ground of lack of corroboration, apply to a child witness who is competent and whose version is reliable." [emphasis supplied]
While bearing the above in mind, it is clear that the evidence
of P.W.9 fails the test of truthfulness and stands vitiated and
coloured by inconsistence and wavering evidence.
14. In Leela Ram (Dead) through Duli Chand vs. State of 7 Haryana and Another the Hon‟ble Supreme Court has expounded
that the evidence must be closely scrutinized to assess whether an
innocent person is being falsely implicated.
15. In Rai Sandeep (supra) the Supreme Court while
considering which witness would qualify as a sterling witness held
as follows;
"22 [Ed.: Para 22 corrected vide Official Corrigendum No. F.3/Ed.B.J./48/2012 dated 18-8-2012.].
In our considered opinion, the "sterling witness" should be of a very 6 (2013) 5 SCC 705 7 (1999) 9 SCC 525 Crl.A. No.13 of 2021 15
Pema Tshering Bhutia vs. State of Sikkim
high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
16. It is reiterated that the version of P.W.9 the Prosecutrix
regarding the offences is generously embellished neither does it
bear corroboration even by P.W.7 and Exhibit 12. The Court did
not have the benefit of examining the FSL report. The allegation of
penetrative sexual assault was correctly discarded by the Learned
Trial Court. The offence under Section 354 IPC would require proof
of sexually coloured acts perpetrated on the victim by the Appellant
falling short of the offence of rape. In view of the above Crl.A. No.13 of 2021 16
Pema Tshering Bhutia vs. State of Sikkim
discussions, no evidence of criminal force employed by the
Appellant on the victim or his culpable intention is proved nor has
any other act suggestive of sex been proved to establish that it was
intended to outrage the modesty of the Prosecutrix. The vacillating
evidence of the Prosecutrix renders it unreliable and she fails to
qualify as a sterling witness. The ingredients of the offence under
Section 354 IPC thus remain unfulfilled. The offence under Section
506 has also remained unproved.
17. Consequently, Appeal is allowed.
18. The conviction and sentence imposed on the Appellant
vide the impugned Judgment and Order on Sentence of the
Learned Trial Court are set aside.
19. The Appellant is acquitted of the offence under Sections
354 and 506 of the IPC. He be set at liberty forthwith if not
required to be detained in any other case.
20. Fine, if any, deposited by the Appellant in terms of the
impugned Order on Sentence, be reimbursed to him.
21. No order as to costs.
22. Copy of this Judgment be forwarded to the Learned
Trial Court for information and compliance, along with its records.
( Meenakshi Madan Rai ) Judge 22-04-2022
Approved for reporting : Yes
ds
