THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
DATED : 15th 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.15 of 2021
Appellant : Binay Tamang
versus
Respondent : State of Sikkim
Appeal under Section 374(2) of the
Code of Criminal Procedure, 1973
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Appearance
Mr. Gulshan Lama, Advocate (Legal Aid) for the Appellant.
Mr. Sudesh Joshi, Public Prosecutor with Mr. Yadev Sharma,
Additional Public Prosecutor and Mr. Sujan Sunwar, Assistant
Public Prosecutor for the State-Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1(i). By filing this Appeal, the Judgment of the Learned
Special Judge (POCSO), West Sikkim, at Gyalshing, dated 07-10-
2021, in ST (POCSO) Case No.08 of 2020 (State of Sikkim vs.
Binay Tamang), is being assailed. The Learned Trial Court
convicted the Appellant of the offence under Sections 376(2)(f),
376(2)(n) and 376(3) of the Indian Penal Code, 1860 (for short
"IPC") and under Sections 5(j)(ii), 5(l) and 5(n) of the Protection of
Children from Sexual Offences Act, 2012 (for short, "POCSO Act,
2012") punishable under Section 6 of the Protection of Children
from Sexual Offences (Amendment) Act, 2019 (for short "POCSO
Amendment Act, 2019").
(ii) By the impugned Order on Sentence of the same date,
the Appellant was sentenced to undergo rigorous imprisonment of Crl.A. No.15 of 2021 2
Binay Tamang vs. State of Sikkim
25 years under Section 376(2)(f) of the IPC; 20 years under
Section 376(2)(n) of the IPC; 30 years under Section 376(3) of the
IPC; 30 years under Section 5(j)(ii)/6 of the POCSO Amendment
Act, 2019; 20 years under Section 5(l)/6 of the POCSO Amendment
Act, 2019; and 25 years under Section 5(n)/6 of the POCSO
Amendment Act, 2019. Fine was imposed along with the sentences
of imprisonment and bore default clauses of imprisonment. The
sentences of imprisonment were ordered to run concurrently,
setting off the period of imprisonment already undergone, in terms
of Section 428 of the Code of Criminal Procedure, 1973 (for short,
"Cr.P.C.").
2. The matter has its genesis in the FIR, Exhibit 8, dated
11-02-2020 lodged by P.W.5, Dr. Geeta Rai, in-charge of the
concerned Public Health Centre (PHC), informing the Officer-in-
Charge of the jurisdictional Police Station, that the minor victim,
P.W.4, 13 years of age, had been brought to the PHC with a
complaint of having missed her period (menstrual cycle). On
examination, she was found to be pregnant. Based on the said
information, FIR No.02/20, dated 11-02-2020, was registered
against the Appellant, aged 39 years and taken up for
investigation. On completion of investigation, Charge-Sheet was
submitted against the Appellant under Sections 376(2)(f),
376(2)(n) and 376(3) of the IPC and, under Sections 5(j)(ii), 5(l)
and 5(n) of the POCSO Act, 2012 punishable under Section 6 of the
POCSO Amendment Act, 2019. The Learned Trial Court took
cognizance of the offences and framed Charges against the
Appellant under the above-mentioned Sections. The Prosecution
examined fifteen witnesses. Following the closure of the Crl.A. No.15 of 2021 3
Binay Tamang vs. State of Sikkim
Prosecution evidence, the Appellant was examined under Section
313 Cr.P.C. and his responses recorded. In his defence he claimed
that he had been a paying guest in the house of the victim, paying
a rent of Rs.1,500/- (Rupees one thousand and five hundred) only.
He was not married to the victim‟s mother and when he wanted to
return home she had told him she would see how he would do so.
The Learned Trial Court on consideration of the evidence,
pronounced both the impugned Judgment of Conviction and Order
on Sentence.
3(i). Assailing both before this Court, Learned Counsel for
the Appellant in the first prong of his arguments contended that the
opinion of the Expert stating that the DNA of the fetus matched the
DNA of the Appellant is beset with suspicion as the extraction of
the blood samples of the Appellant, the victim and the fetus and
the chain of safe custody thereof has not been detailed by the
Prosecution. Exhibit 15 is the requisition dated 19-03-2020 for
extraction of the Appellant‟s blood sample for DNA analysis but
records do not reveal as to who the blood sample was handed over
to by the Doctor who extracted it, apart from which there were no
independent witnesses who saw the extraction or the containers in
which the samples were kept. Similarly, vide Exhibit 17, the
Investigating Officer (hereinafter, I.O.), P.W.15 made a requisition,
dated 05-03-2020, for extraction of blood sample of the victim, but
the records do not indicate who received the extracted sample. As
per the I.O. vide Exhibit 33 the blood samples collected from the
Appellant, the victim and the fetus of the victim were forwarded to
the Centre for DNA Fingerprinting and Diagnostics (CDFD),
Hyderabad, Telengana, but records are devoid of the date of such Crl.A. No.15 of 2021 4
Binay Tamang vs. State of Sikkim
forwarding, neither is there any evidence to show that the I.O.
sealed the alleged samples, thus rendering the root of the
Prosecution story suspicious.
(ii) In the second prong of his arguments, it was contended
that although the FIR Exhibit 8 was „lodged‟ against an unknown
person, but it immediately came to be „registered‟ against the
Appellant sans proof of preliminary enquiry by the Police to indicate
the complicity of the Appellant, hence, there was a concerted effort
by the Prosecution to falsely implicate the Appellant.
(iii) In the third prong of his arguments, it was urged that
the age of the victim remained unproved as the Birth Certificate,
Exhibit 7 was merely handed over by P.W.3, the victim‟s mother, to
the Police without adhering to the procedure prescribed for such
seizure. For the foregoing reasons, the Prosecution has failed to
prove its case beyond a reasonable doubt and the impugned
Judgment on Conviction and Order on Sentence deserve to be set
aside.
4. While conceding that the investigation was indeed
shoddy and lacking, Learned Public Prosecutor however
canvassed that the Court even in such a
circumstance cannot acquit the Appellant as the DNA report
supports the Prosecution case and the victim by her consistent
statements both under Section 164 Cr.P.C. and her deposition in
the Court, has established the Prosecution case. Consequently, the
impugned Judgment of Conviction and Order on Sentence require
no interference. In support of his contention, he placed reliance on
Veerendra vs. State of Madhya Pradesh1 wherein it was inter alia held
1 2022 SCC OnLine SC 622 Crl.A. No.15 of 2021 5
Binay Tamang vs. State of Sikkim
that there can be no doubt with respect to the position that a fair
investigation is necessary for a fair trial, hence it is the duty of the
investigating agency to adhere to the prescribed procedures in the
matter of investigation and thereby to ensure a fair, competent and
effective investigation. However, the accused is not entitled to an
acquittal solely on ground of defects or shortcomings in
investigation.
5. The submissions of Learned Counsel which were heard
in extenso have been afforded due consideration and the records
minutely perused.
6. The question that falls for consideration before this
Court is; Whether the Appellant a 39 year old male had sexually
assaulted the victim, aged about 13 years?
7(i) To determine this question, we may carefully examine
the evidence of the Prosecution witnesses. As per P.W.4, the
victim, a student of Class VIII, her step father the Appellant, used
to force himself on her and sexually assaulted her every time when
her mother was away from home, including Saturdays and Sundays
when her mother would be out for work and the victim would be
alone at home. In December, 2019 (her evidence was recorded on
06-07-2020) when her mother and sisters had gone to Darjeeling
her step father raped her in their house during the day time, when
no one was at home. When she resisted his advances he used to
shout at her and she was too frightened to confide to anyone about
the incidents. She went on to state that earlier in the year when
her mother had gone to Rorathang (a place in East Sikkim) and her
elder sisters had gone for their morning walk, then too, the
Appellant raped her in the house. A few days later, she began Crl.A. No.15 of 2021 6
Binay Tamang vs. State of Sikkim
running a fever so she called her elder sisters who were working in
the fields and told them that she was unwell. When they returned
from work in the evening they took her to the Hospital where she
was given medication and told to return to the Hospital in the
morning. The next morning as she was still unwell, her sisters
came and collected her from School and took her to the Hospital
where she informed them that she had also missed her period
(menstrual cycle). Her urine test was conducted, and her test for
pregnancy was positive. When the Doctor enquired from her as to
who was responsible for her condition she named her step father.
She went on to state that the Appellant used to frequently touch
her body in a "bad way" (indicating her chest and back). Later,
after the doctor informed the Police she was again medically
examined and her statements also recorded. The victim was
shown her Section 164 Cr.P.C. statement in which she identified
Exhibit 2 as the questionnaire and her right thumb impression
marked Exhibit 2(b) on the document. She also identified Exhibit 1
as her statement and her RTIs marked on the said document. The
statements given by the victim were not demolished under cross-
examination. Exhibit 1, her Section 164 Cr.P.C. statement was
recorded by the concerned Magistrate after the Magistrate
examined her and was satisfied that the statements were being
made voluntarily by her. Her deposition in the Court is duly
corroborated by her statement under Section 164 Cr.P.C.
(ii) P.W.2 the Doctor of the District Hospital examined the
victim on 11-02-2020 at around 2.50 p.m. The victim gave a
history of sexual assault by her step father in the month of
December, 2019 and on examining her, P.W.2 found the victim‟s Crl.A. No.15 of 2021 7
Binay Tamang vs. State of Sikkim
uterus enlarged, indicating pregnancy of 14 to 16 weeks. P.W.5,
the Doctor in-charge of the concerned PHC at the relevant time,
supported the evidence of P.W.4 with regard to the victim being
found pregnant on conducting a pregnancy test, consequent upon
which she lodged the FIR, Exhibit 8.
(iii) P.W.8 the elder sister of the victim would testify that
she had taken the victim P.W.4 to the Hospital being indisposed
and after P.W.4 was medically examined and her urine tested, she
was found to be pregnant. Initially, when P.W.8 and P.W.5
enquired from the victim as to who was responsible for the
pregnancy she refused to answer but on coaxing, she revealed the
Appellant‟s complicity. P.W.8 identified Exhibit 7 as the Birth
Certificate of the victim which was seized vide document Exhibit 16
and handed over to the Police. These facts withstood the test of
cross-examination.
(iv) P.W.3, the victim‟s mother testified that the victim was
born on "08-11-2006" and she identified Exhibit 7 as her Birth
Certificate. Along with P.W.3, the authenticity of Exhibit 7 was
vouched for by the evidence of P.W.6, P.W.11 and P.W.13. As per
P.W.6 the Headmaster of the School which the victim was
attending, the victim was admitted to the School in 2013 in Class I
and it was the first School attended by her. When the Police
requested him to authenticate the date of birth of the victim as per
the school records, he checked the Admission Register Exhibit 11
and found her date of birth recorded therein as "08-11-2006".
P.W.11, the Compounder posted at the PHC testified that in 2017
he was given the responsibility of preparing the Births and Deaths
Certificates at the PHC by the Chief Medical Officer, District Crl.A. No.15 of 2021 8
Binay Tamang vs. State of Sikkim
Hospital. On 24-02-2020, on the requisition of the concerned
Police Station he went through the Birth records, Exhibit 19, at the
PHC and found that the victim‟s date of birth was recorded as "08-
11-2006", vide Registration No.564/RBD/2006. P.W.13 also
vouched for the date of birth of the victim stating that he had
issued Exhibit 7 on 13-11-2006 when he was posted at the
concerned PHC as the Medical Officer (I/C)-cum-Registrar. His
evidence could not be decimated in cross-examination. The
documentary evidence pertaining to the victim‟s age supported by
the evidence of P.W.3, 6, 11, 13 prove beyond reasonable doubt
that the victim was born on "08-11-2006". Hence, even if the
argument of Learned Counsel for the Appellant that the procedure
for seizure was not followed is considered and Exhibit 7
disregarded, the other evidence establish beyond any doubt the
age of the victim as about 13 years.
(v) The Counsellor of the District Child Protection Unit
under the Integrated Child Protection Scheme was examined as
P.W.9. He counselled the victim on 12-02-2020. She narrated the
history of sexual assault perpetrated on her by the Appellant. The
evidence of P.W.9 indicated that the victim consistently narrated
the events of sexual assault as stated in her deposition. His
evidence stood the test of cross-examination.
8(i). P.W. 15, the I.O. deposed that a requisition was made
to the Medico-Legal Consultant, STNM Hospital, P.W.10, for
extraction of the blood from the fetus of the victim which was later
received from P.W.10 in a packed and sealed envelope, as also the
blood sample of the victim. He exhibited the requisition Exhibit 17
and identified his signature thereon. The requisition dated 05-03- Crl.A. No.15 of 2021 9
Binay Tamang vs. State of Sikkim
2020 is addressed to the Medico Legal Consultant of the STNM
Hospital, by the I.O., duly endorsed by P.W.10 on the same date,
acknowledging receipt. P.W.10, the Medico-Legal Consultant,
STNM Hospital, deposed that on the requisition of P.W.15 he
extracted the blood samples of both the fetus and the victim, for
DNA analysis. The identification form of the victim, Exhibit 18
bearing his signature with details of blood extraction done by him
was also identified by him. During cross-examination, it was not
even suggested to P.W.10 that the blood samples were not kept in
safe custody. Exhibit 18 is an identification form of CDFD,
Hyderabad. It is signed by both P.W.10 and P.W.15, with the date
05-03-2020 endorsed under the signature of P.W.10.
(ii) The blood sample of the Appellant was extracted for
DNA profiling, at the District Hospital Namchi, South Sikkim, as per
P.W.15 and handed over to her by Dr. Leena D. Pradhan, P.W.7 in
a small box which was packed and sealed. The requisition Exhibit
15 addressed by her to the Medical Officer, Namchi District
Hospital, dated 19-03-2020, was identified by her and bore an
endorsement by P.W.7 of the receipt thereof, on 09-03-2020 itself.
P.W.7 supported the evidence of P.W.15 in the context of
requisition for collection of blood sample of the Appellant. She
accordingly extracted approximately 5 ml of blood from the
Appellant and handed it over to the police and while doing so
affixed her signature on the back of the sealed packet. She also
identified Exhibit 14 as the blood identification form bearing her
signature, with the date 19-03-2020 reflected therein and the
signature of P.W.15.
Crl.A. No.15 of 2021 10
Binay Tamang vs. State of Sikkim
(iii) According to P.W.15, the I.O., the blood samples could
not be forwarded to the CDFD, Hyderabad, as the concerned
authority could not receive it due to the lockdown, but it was sent
after the lockdown vide Exhibit 33, the forwarding letter, in a box
which was packed and sealed. The report of the CDFD, Hyderabad,
is marked as Exhibit 23. Pursuant thereto, as per P.W.15,
supplementary Charge-Sheet was filed. The cross-examination by
the defence does not falsify the evidence of the I.O.
(iv) P.W.14 the DNA examiner in the laboratory of the
CDFD, Hyderabad deposed that on 28-12-2020 the Case Exhibits
was brought to CDFD along with forwarding letter dated 24-12-
2020 and they received the blood samples for DNA Finger Printing
in a sealed condition. On performing the DNA test, he concluded
that the Appellant is the biological father of the fetus and the victim
its biological mother. Nothing substantial was brought out in his
cross-examination to contradict the evidence on this aspect. It was
not even suggested to P.W.14 that the samples sent for DNA
analysis had not been sealed and packed.
There is, therefore, nothing in the case records which would
suggest either improper extraction, preservation or tampering of
the blood samples.
9(i). In Sandeep vs. State of Uttar Pradesh2 it was contended
that improper preservation of the fetus would have resulted in a
wrong report to the effect that the accused was found to be the
biological father of the fetus received from the deceased. The
Supreme Court considered the deposition of the Junior Scientific
Officer of the Central Forensic Laboratory which brought out the
2 (2012) 6 SCC 107 Crl.A. No.15 of 2021 11
Binay Tamang vs. State of Sikkim
fact that the blood samples of the accused had been received by
him and necessary test was conducted, based on which the reports
were forwarded. The test confirmed that the accused was the
biological father of the fetus. The Supreme Court also noted the
fact that the expert had stated that the sample had been received
in a sealed condition. It was held that since the submission of
improper preservation was not supported by any relevant material
on record and the appellant had not been able to substantiate the
argument with any supporting material, there was no substance in
it.
(ii) In State vs. Navjot Sandhu3 the Supreme Court dealt
with the challenge to the truth of the recoveries of the phone, on
the ground that no independent witnesses were required to witness
the recovery. The Learned Counsel had relied on the decision in
Sahib Singh vs. State of Punjab4 and Kehar Singh vs. State (Delhi 5 Admn.) to show that in the absence of independent witnesses
being associated with search the seizure cannot be relied upon. The
Supreme Court held that no such inflexible proposition was laid
down in those cases. In Sanjay vs. State (NCT of Delhi)6 it was
observed that, the fact that no independent witnesses were
associated with recoveries is not a ground to disbelieve the
Prosecution. Of course, close scrutiny of evidence is imperative in
such circumstances. The Supreme Court further held that there is
no law that the evidence of police officials in regard to seizure
ought to be discarded.
3 (2005) 11 SCC 600 4 (1996) 11 SCC 685 5 (1988) 3 SCC 609 6 (2001) 3 SCC 190 Crl.A. No.15 of 2021 12 Binay Tamang vs. State of Sikkim (iii) In Santosh Kumar Singh vs. State7 the Supreme Court
repelled the argument that the vaginal swabs and slides taken from
the dead body at the time of the post-mortem examination had
been tampered with and there was some suspicion with regard to
the blood samples taken by the Doctor and the DNA report too
could not be relied, upon as farfetched as it meant that not only
the investigating agency, but the Doctors who had taken the
vaginal swabs and slides, the Doctors and other staff who had
drawn the blood samples and the Scientist had all conspired to
harm the Appellant.
10. In the instant case, the evidence of the victim
regarding the incidents of sexual assaults also inspire confidence.
It is settled law that the sole evidence of the victim suffices in such
cases if the evidence is found to be of sterling quality. In Rai
8 Sandeep alias Deepu vs. State of NCT of Delhi 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 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
7 (2010) 9 SCC 747 8 (2012) 8 SCC 21 Crl.A. No.15 of 2021 13
Binay Tamang vs. State of Sikkim
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." [emphasis supplied]
11. P.W.4 has consistently in her evidence before the Court
as well as in her statement under Section 164 Cr.P.C. held that the
Appellant had sexually assaulted her. Initially he had only touched
her inappropriately (accordingly to her; bad touch), but thereafter
committed penetrative sexual assault on her. The specifics of the
incidents have also been consistent. Her evidence having
withstood the cross-examination we find it to be of sterling quality.
12. Indeed, the investigation of the case suffers from flaws
and defects but at the same time as pointed out in Veerendra
(supra) the sole reason for interference with the Judgment of
Conviction cannot be for the reason that there are defects or
shortcomings in investigation when all other factors point to the
guilt of the Appellant, especially the evidence of the victim. The
Appellant cannot be entitled to an acquittal on such grounds.
13. In light of the entire foregoing discussions, we are of
the considered opinion that the impugned Judgment of Conviction
of the Learned Trial Court suffers from no infirmity, warrants no
interference and is thereby upheld.
Crl.A. No.15 of 2021 14
Binay Tamang vs. State of Sikkim
14. Coming to the question of sentence, in Guru Basavaraj
alias Benne Settappa vs. State of Karnataka9 the Supreme Court
while considering the sentences warranted under Section 324 of
the IPC held inter alia that it is the duty of the Court to see that
appropriate sentence is imposed regard being had to the
commission of the crime and its impact on social order. The
Supreme Court in Gopal Singh vs. State of Uttarakhand10 also held
that just punishment is a collective cry of the society. While the
collective cry has to be kept uppermost in the mind, simultaneously
the principle of proportionality between the crime and punishment
cannot be totally brushed aside. The principle of just punishment is
the bedrock of sentencing in respect of a criminal offence. A
punishment should not be disproportionately excessive. The
concept of proportionality allows a significant discretion to the
Judge but the same has to be guided by certain principles. In
certain cases, the nature of culpability, the antecedents of the
accused, the factum of age, the potentiality of the convict to
become a criminal in future, capability of his reformation and to
lead an acceptable life in the prevalent milieu, the effect -
propensity to become a social threat or nuisance, and sometimes
lapse of time in the commission of the crime and his conduct in the
interregnum, bearing in mind the nature of the offence, the
relationship between the parties and attractability of the doctrine of
bringing the convict to the value-based social mainstream may be
the guiding factors. That, there can neither be a straitjacket
formula nor a solvable theory in mathematical exactitude. It would
be dependent on the facts of the case and rationalised judicial
9 (2012) 8 SCC 734 10 (2013) 7 SCC 545 Crl.A. No.15 of 2021 15
Binay Tamang vs. State of Sikkim
discretion. For every offence, a drastic measure cannot be thought
of. Similarly, an offender cannot be allowed to be treated with
leniency solely on the ground of discretion vested in a Court. The
real requisite is to weigh the circumstances in which the crime has been
committed and other concomitant factors which we have indicated
hereinabove and also have been stated in a number of pronouncements
of the Supreme Court. It is on such touchstone that the sentences are
to be imposed. The discretion should not be in the realm of fancy. It
should be embedded in the conceptual essence of just punishment.
15. In Yakub Abdul Razak Memon vs. State of Maharashtra11 it
was observed by the Hon‟ble Supreme Court that the Prosecution
as well as the convict have a right to adduce evidence to show
aggravating grounds to impose severe punishment or mitigating
circumstances to impose a lesser sentence.
16. In light of the penalty imposed under the various
provisions of law in the instant matter as reflected in the impugned
Order on Sentence and considering the proportionality of the
sentence to the offence, we are of the considered opinion that the
parties should be afforded an opportunity to be heard on sentence.
17. List the matter accordingly.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
15-06-2022 15-06-2022
ds Approved for reporting : Yes
11
(2013) 13 SCC 1
