Binod Tamang vs State Of Sikkim
2022 Latest Caselaw 44 Sikkim

             THE HIGH COURT OF SIKKIM : GANGTOK
                             (Criminal Appellate Jurisdiction)
                                  DATED : 8th June, 2022
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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.32 of 2017
              Appellant                :       Binod Tamang

                                                     versus

              Respondent               :       State of Sikkim

                                        An Appeal under Section 374(2) of the
                                          Code of Criminal Procedure, 1973.
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       Appearance
             Mr. N. Rai, Senior Advocate (Legal Aid Counsel) with Mr. Yozan
             Rai and Ms. Tara Devi Chettri, Advocates for the Appellant.
             Mr. Thinlay Dorjee Bhutia, Additional Public Prosecutor for the
             State-Respondent.

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                                  JUDGMENT

Meenakshi Madan Rai, J.

1(i). The Appellant, in ST (POCSO) case No. 10 of 2015,

State of Sikkim vs. Binod Tamang was charged with the offence under

Section 3(a) of the Protection of Children from Sexual Offences Act,

2012 (for short "POCSO Act"), along with Section 376(2)(i) and

Section 363 of the Indian Penal Code, 1860 (for short "IPC").

(ii) Vide the impugned Judgment dated 30-10-2017, he

was convicted of the offences under Section 3(a) of the POCSO Act

and Section 376(2)(i) of the IPC but acquitted of the offence under

Section 363 of the IPC. The impugned Order on sentence dated 30-

10-2017, directed the Appellant to undergo simple imprisonment

for a period of seven years and to pay a fine of Rs.1,000/- (Rupees

one thousand) only, under Section 3(a) of the POCSO Act

punishable under Section 4 of the same Act. Under Section

Binod Tamang vs. State of Sikkim

376(2)(i), he was sentenced to undergo rigorous imprisonment for

a period of ten years and to pay a fine of Rs.2,000/- (Rupees two

thousand) only. The sentences of imprisonment were ordered to

run concurrently. The sentences of fine bore default clauses of

imprisonment. Aggrieved thereof, the Appellant is before this Court

assailing the Judgment and Order on sentence.

2(i). Learned Senior Counsel for the Appellant while placing

reliance on the ratio in T. T. Antony v. State of Kerala and Others1 and

Mangala Mishra @ Dawa Tamang @ Jack vs. State of Sikkim 2, contended

that there can be no second First Information Report (for short

"FIR") in respect of the same cognizable offence, same incident or

occurrence. That, in the instant case there are two FIRs and two

Charge-Sheets filed, the first FIR having been lodged on 17-11-

2013, for which the Charge-Sheet was submitted on 27-02-2014,

while the second FIR was lodged on 13-01-2015 and the Charge-

Sheet submitted on 04-02-2015. That, the second FIR is hit by the

provisions of Section 162 of the Code of Criminal Procedure, 1973

(for short "Cr.P.C") and cannot be considered by the Court. That,

further investigation after the lodging of the second FIR was taken

up without the permission of the Magistrate and is therefore legally

untenable, this contention was buttressed by the ratiocination in

Anju Chaudhary vs. State of Uttar Pradesh and Another3 and Vikash

Gupta vs. State of Punjab4.

(ii) In the next leg of his arguments it was contended that

the age of the victim was not proved which is evident from the

deposition of P.W. 11 and P.W. 12, who have unambiguously stated

that they had not seen the birth certificate being seized although

AIR 2001 SC 2637

SLR (2018) SIKKIM 1373

(2013) 6 SCC 384

2002 CRI. L. J. 4165

Binod Tamang vs. State of Sikkim

the Prosecution asserts that they were seizure witnesses. They had

only signed on the seizure memo Exhibit 4 and failed to identify the

birth certificate Exhibit 18, hence, no weight can be attached to the

document as proof of the victim's age, on this count reliance was

placed on the ratio in Sandeep Tamang vs. State of Sikkim5 of this

Court and Lall Bahadur Kami vs. State of Sikkim6. That infact the act

alleged to be sexual assault was a consensual act between the

victim and the Appellant and the Appellant cannot be foisted with

the offence of rape, for which reliance was placed on Dr. Dhruvaram

Murlidhar Sonar vs. State of Maharashtra and Others7. That in view of

the above facts and circumstances the Prosecution case has not

been proved beyond a reasonable doubt besides being besieged

with technical infirmities, hence the impugned Judgment and Order

on sentence deserves to be set aside and the Appellant acquitted of

all charges.

(iii) The concluding argument of Learned Senior Counsel for

the Appellant was that the Appellant has no criminal antecedents

and he and the victim in the intervening period, since the lodging

of the FIR, have three children between them. Should the Appellant

be incarcerated for the number of years as ordered in the

impugned Order of sentence then the Appellant will ofcourse suffer

his incarceration, but his wife and three minor children who are all

dependant on him will have to bear the brunt of his incarceration

and untold misery as the Appellant is the only earning member of

his family. That, should this Court not be inclined to set aside the

Judgment and Order of the Learned Trial Court then the sentence

Crl. A. No. 23 of 2015 decided on 24-06-2016

SLR (2017) SIKKIM 585

AIR 2019 SC 327

Binod Tamang vs. State of Sikkim

of the Appellant be suspended or the Appellant be released on

probation of good conduct.

(iv) Refuting the arguments supra, the Additional Public

Prosecutor for his part contended that the issues pertaining to the

age of the victim and the filing of the second FIR and further

investigation without the permission of the concerned Magistrate

were not raised at all before the Learned Trial Court and hence

cannot be raised for the first time in Appeal, on this count strength

was drawn from the ratio in Sancha Hang Limboo vs. State of Sikkim8.

(v) That, the victim was a minor has clearly been proved

by Exhibit 18, her birth certificate duly proved by P.W. 22, who

certified the contents of the birth certificate from the records of the

Department concerned and the testimony of the victim herself.

Besides, the Appellant in his Section 313 Cr.P.C statement, at

Question no.14 has clearly admitted that he had sexual intercourse

with the victim, during their stay at his house where he had taken

the victim thereby clinching the Prosecution case. Hence, the

Judgment and Order on sentence of the Learned Trial Court

warrants no interference.

3. After carefully considering the rival submissions of the

Learned Counsel of the parties and perusal of the evidence and

documents on Record, this Court is to determine whether the

Learned Trial Court was correct in concluding that the Appellant

had committed the offences that he was convicted under.

4(i). Before delving into the merits of the matter, it is

imperative to briefly discuss the facts of the case. On 17-11-2013,

P.W.2 lodged an FIR, Exhibit 11, before the Police Station informing

SLR(2018) SIKKIM 1

Binod Tamang vs. State of Sikkim

the Police that the victim, his relative, aged about 13 years had

gone to her maternal uncle's home but failed to return home after

nine to ten days. On enquiry, they came to learn that she had been

taken by an unknown boy. The Police Station registered the case as

FIR T.P.S case no.14(11)13 dated 17-11-2013 under Sections

363/366 IPC against the accused and endorsed it for investigation

to ASI K.B. Gurung, Investigating Officer (for short "I.O.").

(ii) On completion of investigation, Charge-Sheet was

submitted by the I.O. on 27-02-2014 against the Appellant, under

Sections 363/366 of the IPC, the cognizance of which was declined

by the Special Judge (POCSO) Act, South Sikkim at Namchi on

jurisdictional grounds, the minor victim being a resident of a place

in South Sikkim but having been allegedly kidnapped from the

lawful guardianship of her uncle under the East District jurisdiction.

The matter was reverted by the Learned Special Judge (POCSO)

Act, South Sikkim to the Prosecution Branch for appropriate steps

which in turn handed it over to the Rangpo Police Station. The

Station House Officer (for short "SHO"), Rangpo Police Station

registered Rangpo PS Case FIR No.01(01)15, dated 13-01-2015

under Sections 363/366 of the IPC against the accused and

endorsed it to the PSI Avinash Lamichaney, I.O. P.W.21, for further

investigation. The SHO then filed Exhibit 16 before the Learned

Chief Judicial Magistrate, East and North at Gangtok (for short

"CJM") informing her of the chain of events as narrated above. On

completion of investigation the I.O. submitted Charge-Sheet

against the Appellant under Sections 363/366/376 of the IPC read

with Section 4 of the POCSO Act.

Binod Tamang vs. State of Sikkim

5. The Learned Special Judge (POCSO) Act, East Sikkim at

Gangtok framed charges against the Appellant under Section 3(a)

of the POCSO Act and Section 376(2)(i)/363 of the IPC. The

Prosecution examined 22 (twenty-two) witnesses to prove its case

beyond a reasonable doubt. On closure of Prosecution evidence,

the Appellant was examined under Section 313 of the Cr.P.C to

enable him to explain the incriminating evidence appearing against

him. He admitted to the fact of sexual intercourse with the victim

but claimed to be innocent and falsely implicated in the case.

Pursuant thereto, the final arguments of the parties were heard

followed by the impugned Judgment and Order on sentence.

6.(i). It may relevantly be noticed that the SHO, Rangpo

Police Station has vide Exhibit 16 infact informed the CJM, East and

North at Gangtok that pursuant to the lodging of the FIR on 17-11-

2013, which was registered at a Police Station in the South District,

the I.O. submitted the Charge-Sheet before the Learned Special

Judge (POCSO) Act, South Sikkim who refused to take cognizance

on jurisdictional grounds citing Section 177 and Section 181(2) of

the Cr.P.C. The registration of the FIR, Exhibit 16 at the Rangpo

Police Station being an information to the CJM can in no manner be

categorised as a second FIR of the incident. It was merely due to a

technical question raised by the concerned Court that the FIR,

Exhibit 11 and the Charge-Sheet were returned for steps to be

taken by the Prosecuting Agency under the correct jurisdiction.

Consequently, the SHO registered it as FIR No.01(01)15 dated 13-

01-2015 and then informed the CJM of the development. With

regard to the SHO directing P.W.21 to further investigate into the

matter, it was argued by the Learned Senior Counsel that there can

Binod Tamang vs. State of Sikkim

be no further investigation into the case under the provisions of

Section 173 of the Cr.P.C without an order from the concerned

Magistrate. We have perused the contents of the Section 173 of the

Cr.P.C Section 173(8) which is relevant and is reproduced herein

below;

"173. Report of police officer on completion of investigation.- .................................................................................... (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)."

(ii) Hence a perusal of 173(8) of the Cr.P.C nowhere lays

down that the police is precluded from further investigation into the

matter sans permission of the concerned Magistrate. The I.O. of

the Police Station if he receives further evidence, oral or

documentary, may forward such material to the Magistrate for

further report or reports regarding such evidence. In Popular

Muthiah vs. State represented by Inspector of Police9, the Hon'ble

Supreme Court has held that when the power under Section 173(8)

of the Cr.P.C is exercised the Court ordinarily should not interfere

with the statutory powers of the investigating agency. That, the

Court cannot issue directions to the investigating agency from a

particular angle or by a particular agency. Thus, the power of the

Police to continue further investigation even after laying the final

report is recognized under Section 173(8) of the Cr.P.C as also held

in Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha

(2006) 7 SCC 296

Binod Tamang vs. State of Sikkim

Maharaj vs. State of Andhra Pradesh and Others10. Hence no error

emanates in the SHO directing P.W.21 to further investigate the

matter. He had not issued orders for re-investigation.

(iii) Coming to the contention that the age of the victim was

not proved we are in absolute disagreement with Learned Senior

Counsel. Reliance was placed by the Appellant on Sandeep Tamang

(supra) [the Judgment was pronounced by a Single Judge Bench of

(Rai, J)], where the Court disbelieved that the victim was a minor

on grounds that the parents of the victim were not made witnesses

to prove the victim's age, neither was the authority who issued the

victim's birth certificate made a witness to test the authenticity of

the document. The school admission register of the victim also

found no place in the Prosecution evidence, besides, the seizure of

the birth certificate went unproved. The facts and circumstances

herein can be differentiated for the reason that shall follow later

herein below. In Lall Bahadur Kami (supra) a Division Bench of this

Court had again disbelieved the birth certificate of the victim for

the reason that the Prosecution witnesses could not vouchsafe for

the truth of the contents of the document. In the instant matter

Exhibit 18 is the birth certificate of the victim wherein her date of

birth is reflected as 15-12-2000, duly registered on 03-01-2001.

We have, in a catena of decisions of this Court, held that

subsequent registration of a birth certificate does not take away

from the veracity of the document, all that is required to establish

the bona fides of the Prosecution case is that the concerned

document should be ante litem motam, which means, before the

litigation commences. In the instant case the FIR was registered

1999 CRI. L. J. 3661 (SC)

Binod Tamang vs. State of Sikkim

only in the year 2013 while the birth of the victim was registered

much prior in time i.e., on 03-01-2001, hence its veracity cannot

be doubted. P.W.22, Dr. Tsering Laden Bhutia who was posted as

Chief Medical Officer at the concerned District Hospital deposed

that on the receipt of requisition Exhibit 19, dated 18-03-2014,

requiring her to verify the authenticity of the birth certificate

Exhibit 18, she verified its contents by examining the records

maintained by the Department, including the counter foil of Exhibit

18 maintained in her Department for the period 04-12-2000 to 31-

12-2002. On such verification, finding the birth certificate to be a

genuine document, she thus certified Exhibit 18 accordingly. The

fact that she verified the authenticity of the certificate was not

decimated in cross-examination. The cross-examination of P.W.19

and P.W.21 I.O's of the case has not demolished the fact that

Exhibit 18 is a genuine document. The victim herself deposed that

at the time of the incident in 2013, she was aged about 13 years.

That, on enquiry by the Appellant too she informed him that she

was 13 years old.

(iv) The victim under cross-examination went on to state as

follows:-

".................................................................................. It is true that on 13-11-2013 my aunt told me to go home but I instead of going home visited the accused.

It is true that I was the one who insisted on getting married with the accused.

It is true that while going to Kalimpong I along with the accused travelled in a taxi vehicle. It is true that the vehicle stopped two to three times in different places.

It is true that I used to frequently visit the accused at Duga with the pretext of visiting my aunt.

.................................................................................................

It is true that accused never came to visit me at my place of residence.

It is true that prior to eloping with the accused, I met the accused. It is true that on the

Binod Tamang vs. State of Sikkim

date of eloping when I met the accused, he was not ready to get married with me.

It is true that the accused on several occasion tried to explain to me to go back home but it was me who kept on insisting him to get married.

It is true that when we reached Kalimpong, the accused's friend explained us (sic) that it was not right age for me to get married, thereafter, we came back.

It is true that when we came back, I stayed at the house of the accused where his parents were also there.

It is true when we were sleeping together, the accused person did not forced me to have sexual intercourse.

................................................................................................

It is true that the entire incident occurred due to my own insistence and the accused did not force me to elope with me or to have sexual intercourse.

It is true that I did not have sexual intercourse with the accused.

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

(emphasis supplied)

(v) Thus, the cross-examination of the victim indicates that

despite her age, it was at her insistence that the Appellant took her

and married her, although it does not condone the act of the

Appellant as it is settled law that consent of the minor is no

consent. Reliance placed by Learned Senior Counsel for the

Appellant in Dr. Dhruvaram Murlidhar Sonar (supra) is of no

assistance to the Appellant's plea of consensual sex as the matter

deals with consensual sex between two adults and therefore

irrelevant for the present purpose which is concerned with the

sexual assault of a minor.

7. The evidence of the victim P.W.1 regarding the incident

is fortified by the evidence of P.W.2, the complainant who deposed

that he came to learn about the fact that the victim was missing

from her paternal uncle's place when her uncle requested him to

lodge a missing complaint, which led to the filing of Exhibit-12,

P.W.3 the victim's maternal aunt also supported the evidence of

P.W.1 and P.W.2 as according to her, the victim who is related to

Binod Tamang vs. State of Sikkim

her had come to her residence during the period of offence.

Although she was asked to go back home after she stayed with

them for 15 days, she refused to do so. On the day of the incident

she came to learn from P.W.7 the aunt of the Appellant that the

victim had been taken by the Appellant. She also went on to

depose that the Appellant and the victim now have twins. P.W.4

the Appellant's sister, was introduced to the victim by the Appellant

as his friend and since they had arrived at her residence in the

evening, of a date and month which she did not recollect, she

allowed them to stay overnight at her residence, where she

prepared a separate bed for the Appellant while the victim slept

with her that night. She went on to fortify the evidence of P.W.3

that the victim and the Appellant now have twins.

8. The evidence of P.W.5 was that a "Milapatra" Exhibit 3,

was executed between the family members of the Appellant and

the victim, which he witnessed and affixed his thumb impression

thereon. P.W.8 supported the evidence of P.W.5 who along with

P.W.10 and P.W.13 also witnessed the execution of Exhibit 3.

P.W.8 deposed that the document was executed between the

parents of the victim and the Appellant in which it was stated that

until the victim attains the age of majority she would be residing

with her parents. Both P.W.8 and her husband P.W.20 signed on

Exhibit 3 as witnesses being a Member of the Panchayat and the

Panchayat President of the area respectively. P.W.9 too supported

the evidence of P.W.5 and P.W.8 with regard to execution of

Exhibit 3. She went on to state that the victim and the Appellant

now have twins. The evidence of the witnesses indicate that the

Binod Tamang vs. State of Sikkim

parents had thus compromised the matter on the terms reflected in

Exhibit 3.

9. The Section 164 Cr.P.C statement of the victim

recorded by P.W.15, the Learned Judicial Magistrate, South District

is not being taken into consideration as the document was not

relied on by any party either for corroboration or contradiction.

10. The victim was medically examined by P.W.17, the

Consultant, Gynaecology and Obstetrics Department, STNM

Hospital, Gangtok. The examination of the victim yielded the

following results;

"On local examination, there was no perineal and anal injury, hymen was absent.....................................................

Her vaginal wash was taken and was sent for presence of living or non-living spermatozoa.

The Pathological Report showed presence of non- motile spermatozoa as reported by Priyadarshini Pradhan, Pathologist.

...............................................................................................................

Clinical findings and lab reports confirms that sexual intercourse had taken place two days to one week prior to examination of the victim.

Accordingly, I prepared the Medical Examination Report, Exbt. 14 under my signature Exbt. 14(a)."

Under cross-examination it was his testimony that

there was no sign of any forceful penetration.

11. The I.O. ASI K.B. Gurung P.W.19 investigated the case

after the matter was endorsed to him, on registration of Exhibit 11

the FIR, at the Police Station in the South District. According to

him, his investigation revealed that the victim had on her own will

proceeded to a place in East Sikkim and she had not lodged the FIR

in the instant case.

12. P.W.21 was the I.O. who conducted the investigation

after the matter was registered at Rangpo Police Station.

According, to him based on the evidence collected by his

predecessor, I.O. ASI K.B.Gurung and on the basis of the evidence

Binod Tamang vs. State of Sikkim

that he had collected in the course of investigation of the case, he

submitted Charge-Sheet against the Appellant under Section

363/366/376 of the IPC read with Section 4 of the POCSO Act,

2012. His cross-examination would reveal that the Appellant never

visited the residence of the victim. That the FIR was lodged ten

days after the incident. It needs no reiteration that it is settled law

that an FIR lodged belatedly in such cases cannot be suspect as it

requires prior contemplation before being filed, bearing in mind the

dignity of the victim and societal repercussions.

13. On consideration of the entire facts, circumstance and

evidence placed before this Court including the documentary

evidence this Court is indeed constrained to opine that no error

emanates in the findings of the Learned Trial Court arrived at in its

impugned Judgment and Order on Sentence.

14. The only question remaining for consideration is

whether the benefit of the Section 4 of the Probation of Offenders

Act, 1958 (for short "Probation Act") can be extended to the

Appellant. On consideration of the submissions of Learned Senior

Counsel for the Appellant that the Appellant and the victim have

three children between them and should he be incarcerated for a

long period the innocent will indeed bear the brunt of his

incarceration, in this situation, considering the prayers, the facts

and circumstances of the case revealed above which led the

Appellant to commit the offence, the fact that an earning member

of the family will be undergoing imprisonment and bearing in mind

that the Appellant is a first offender with no criminal antecedents,

we deem it expedient to invoke the provisions of Section 4 of the

Binod Tamang vs. State of Sikkim

Probation Act and release the Appellant on probation of good

conduct.

15. The Hon'ble Supreme Court in Lakhvir Singh and Others

vs. State of Punjab and Another11, has held that the legal position

insofar as invocation of Section 4 of the Probation Act is concerned

has been analysed in Ishar Das vs. State of Punjab [(1973) 2 SCC

65] elucidating that the non obstante clause in Section 4 of the

Probation Act reflected the legislative intent that provisions of the

Act have effect notwithstanding any other law in force at that time.

The observation in Ramji Missar [AIR 1963 SC 1088] was cited with

approval to the effect that in case of any ambiguity, the beneficial

provisions of the Act should receive wide interpretation and should

not be read in a restricted sense.

16. Accordingly, the Appeal is allowed in part as follows:-

           (i)          The conviction is confirmed.

           (ii)         So far as the sentencing is concerned, instead of

sentencing the Appellant at once to any punishment, we direct that

the Appellant be released on entering into a bond with two sureties

before the Court of the Learned Special Judge (POCSO) Act, East

Sikkim at Gangtok to the satisfaction of the Learned Judge, to

appear and receive sentence when called upon to do so during a

period of one year. He shall keep the peace and be of good

behaviour. The Learned Special Judge (POCSO) Act, East Sikkim at

Gangtok shall ensure that the provisions of the proviso to Section 4

of the Probation Act are duly adhered to when requiring sureties to

enter into a bond. Let the Appellant appear before the Court of the

(2021) 2 SCC 763

Binod Tamang vs. State of Sikkim

Learned Special Judge (POCSO) Act, East Sikkim at Gangtok on or

before 13-06-2022, for the above stated purpose.

17. The Appellant shall remain under the supervision of the

SHO Rangpo Police Station for one year.

18. Appeal disposed of accordingly.

19. Judgment be transmitted to Special Judge (POCSO)

Act, East Sikkim at Gangtok and SHO, Rangpo Police Station for

information and compliance.

20. Records of the Learned Trial Court be remitted

forthwith to it.

      ( Bhaskar Raj Pradhan )                  ( Meenakshi Madan Rai )
              Judge                                     Judge
                08-06-2022                                      08-06-2022




Approved for reporting : Yes




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