Ash Bahadur Subba vs State Of Sikkim
2022 Latest Caselaw 33 Sikkim

           THE HIGH COURT OF SIKKIM : GANGTOK
                               (Criminal Appeal Jurisdiction)
                                 DATED :           5th MAY, 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.02 of 2021
              Appellant                :       Ash Bahadur Subba

                                                     versus

              Respondent               :       State of Sikkim

                        Appeal under Section 374(2) of the
                        Code of Criminal Procedure, 1973
      --------------------------------------------------------------------------------------
       Appearance
            Mr. Jorgay Namka, Advocate (Legal Aid Counsel) 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.
      --------------------------------------------------------------------------------------
                                  JUDGMENT

Meenakshi Madan Rai, J.

1(i). The Appellant, aged about 40 years, was accused of

having committed the offence of aggravated penetrative sexual

assault, as defined under Section 5(m) of the Protection of Children

from Sexual Offences Act, 2012 (for short "POCSO Act"), on the

victim, aged about 10 years. Exhibit 2, the FIR, came to be lodged

on 12-10-2019 by P.W.2, the victim‟s mother, alleging therein that

on 05-10-2019, at around 3 p.m., she had gone to wash utensils,

at a nearby water source, close to the house of the Appellant,

having left her daughter the victim (P.W.1) alone at home. When

she returned home after her chore and entered the house,

suddenly she heard her child scream. Hurriedly she entered the

room where she saw the Appellant committing penetrative sexual

assault on the victim, mortified, she reprimanded the Appellant.

Ash Bahadur Subba vs. State of Sikkim

(ii) The concerned Police Station registered the FIR on the

same day against the Appellant under Section 376 of the Indian

Penal Code, 1860 (for short "IPC") read with Sections 6/10 of the

POCSO Act. During investigation, the victim‟s statement under

Sections 161 and 164 of the Code of Criminal Procedure, 1973 (for

short, "Cr.P.C.") were recorded and she was medically examined by

the Doctor, P.W.13. On completion of investigation, Charge-Sheet

was submitted against the Appellant under Sections 6 and 10 of

the POCSO Act. The Learned Special Judge (POCSO Act) framed

Charge against the Appellant under Section 5(m) punishable under

Section 6 of the POCSO Act. The Appellant pleaded "not guilty" to

the Charge. Trial accordingly commenced wherein fifteen

Prosecution witnesses were examined to establish its case. On

closure of Prosecution evidence, the accused was examined under

Section 313 Cr.P.C. to enable him to explain the evidence

incriminating him. The Learned Trial Court on consideration of the

evidence on record convicted the Appellant of the offence under

Section 5(m) punishable under Section 6 of the POCSO Act, 2012

by the impugned Judgment and Order on Sentence, both dated 11-

11-2020, and sentenced him to undergo rigorous imprisonment for

a term of 40 years and to pay fine of Rs.30,000/- (Rupees thirty

thousand) only, with a default clause of imprisonment of 5 years.

2. Aggrieved thereof this Appeal has been filed assailing

both the conviction and the sentence supra. In Appeal, it is

contended by Learned Counsel for the Appellant that Exhibit 2, FIR

was lodged belatedly on 12-10-2019, the incident allegedly having

taken place on 05-10-2019, but the delay is unexplained. That, in

Exhibit 1, the Section 164 Cr.P.C. statement of the victim, she has

Ash Bahadur Subba vs. State of Sikkim

enumerated the persons who are her family members leading to an

assumption that her younger sister was also present in the house

when the incident occurred hence she was not left alone as alleged

by P.W.2. That, the Investigating Officer (I.O.), P.W.15 in his

evidence has admitted that the vaginal swab of the victim and the

penile swab of the Appellant were sent for chemical analysis to

RFSL Saramsa, however neither the document nor the examiner

were before the Court. The I.O. admitted that no bodily fluids,

blood or semen could be detected on the items forwarded to the

FSL, which thereby negatives the Prosecution case. The evidence

of P.W.2 the victim‟s mother does not corroborate that of P.W.3

who followed her into the room where the alleged incident took

place nor does the evidence of P.W.4 the victim‟s wife, who also

reached the spot, support the Prosecution case. More importantly,

the evidence of P.W.13 the Doctor who examined the victim found

no traces of penetrative sexual assault. That, the Learned Trial

Court, despite this Court having cautioned in the ratio of State of

Sikkim vs. Sashidhar Sharma1 that the use of the word „chara' in the

Nepali vernacular may be used variously to describe different

sexual acts and may not necessarily be an expression of

penetrative sexual assault, has proceeded to foist the Appellant

with the commission of penetrative sexual assault only on the basis

of the Appellant having used the word „chara', without making an

effort to understand the correct context of the word used by the

victim. In the light of the above arguments and evidence, the

impugned Judgment and Order on Sentence be set aside and the

Appellant be acquitted of the offence.

2019 SCC OnLine Sikk 154

Ash Bahadur Subba vs. State of Sikkim

3. While conceding to the arguments of Learned Counsel

for the Appellant that the medical evidence does not support the

Prosecution case and that the FSL report failed to find its way to

the Learned Trial Court it was contended that the age of the victim

is not disputed by the Appellant. That, mere non-existence of

injuries on the genital of the victim does not necessarily rule out

the commission of the offence under which he was convicted.

That, the finding of the Learned Trial Court is based on the

unwavering evidence of the Prosecutrix P.W.1 who asserted that

the Appellant had committed penetrative sexual assault on her

fortified by the evidence of P.W.2, who witnessed the Appellant

committing the said act. Hence, the impugned Judgment of the

Learned Trial Court requires no interference.

4. We have given due consideration to the rival

submissions of Learned Counsel, closely examined the records

including the evidence and perused the impugned Judgment and

Order on Sentence.

5(i). The Learned Trial Court while giving its reasons in

arriving at its conclusion has, Paragraphs 50 to 60 of the impugned

Judgment discussed the evidence of the victim P.W.1, her mother

P.W.2, Section 164 Cr.P.C. statement of the victim, the evidence of

P.W.7, the Learned Judicial Magistrate and P.W.8, the Counsellor.

In Paragraph 52 of the impugned Judgment extracted hereinbelow

it is observed as follows;

"52. The victim chose the use of the word "chara" to describe the act committed on her by the accused at the time of testifying before this Court and despite efforts of the Court to gently coax the child to further describe the term "chara" and /or try to explain to the court exactly what the accused had done to her at the time, the

Ash Bahadur Subba vs. State of Sikkim

victim remained silent and uncommunicative on the subject, which is but understandable given the nature of the case."

In Paragraph 54 :

"54. Often times it is found that in victims of rape and sexual abuse (especially child victims) and even witnesses other than a victim in Sikkim use the term "chara", a term in Nepali vernacular to refer to any act of sexual intercourse or even to refer to anything dirty or obscene. While in some cases the victim/witness is able to elucidate the term "chara" at other times such as in present case, the victim fails to give any further clarification..............."

Paragraph 56 is also reproduced hereinbelow;

"56. No doubt a statement recorded under Section 164, Cr.P.C cannot be considered substantive evidence. However it can be considered by a Court to either corroborate or contradict the statement of a witness. Therefore, on considering the testimony of the victim made before this Court, alongside her statement recorded under Section 164, Cr.PC (Exhibit-1) by the Ld. Judicial Magistrate, Soreng (PW7 who proved the contents of Exhibit-1), I find no hesitation whatsoever, in holding that the term "chara" used by the victim in her statement before this Court to describe the act, has been used by her to mean a sexual penetrative act and nothing else."

(ii) At Paragraph 59, it is inter alia observed that it was

found that in the FIR (Exhibit 2) P.W.2 has specifically reported

that when she returned home, on entering the room she found the

Appellant naked as also her daughter and he was having sexual

intercourse with the victim. It is also reasoned by the Learned Trial

Court that although P.W.3 in his cross-examination stated that he

did not know why P.W.2 had yelled at his father, he nevertheless

found the Appellant sitting on the bed at the place of occurrence.

Consequently, the Court concluded that this circumstance

Ash Bahadur Subba vs. State of Sikkim

adequately proved the offence of penetrative sexual assault

garnered in its opinion by the corroborative statement of P.W.8.

The Learned Trial Court relied on the ratio of B. C. Deva lias Dyava

vs. State of Karnataka2 and Ranjit Hazarika vs. State of Assam3,

wherein it was inter alia held that the absence of injury on the

victim‟s private part would not belie her testimony if it was cogent

and trustworthy evidence. She would also observe that it would be

an impossibility for a child so young to conjure up such a horrific

situation.

6. The question for consideration is whether the Learned

Trial Court was correct in its reasonings leading to the conviction of

the Appellant?

7(i). The Prosecution allegation against the Appellant is of

penetrative sexual assault. The evidence of P.W.1 as recorded in

the Learned Trial Court inter alia is that "Mama (accused) took me

inside the house and put me on Dada's bed. He then removed my

clothes as well as his own clothes and thereafter he did "Chara" to

me (committed penetrative sexual assault). When I screamed my

mother arrived and caught him in the act. On seeing us she

shouted at Mama (accused). He then fled away from our house.

My mother then took me to the Thana. I later had a stomach ache

so I was also taken to the hospital." The Learned Trial Court

questioned the Prosecutrix as follows;

"Q. No.4. Had you given your statement earlier?

Ans. Yes, I also gave a statement in the Soreng Court. (Statement of the victim recorded under Section 164, Cr.PC shown to the victim). This is the same statement (marked Exhibit 1) and these are my

(2007) 12 SCC 122

(1998) 8 SCC 635

Ash Bahadur Subba vs. State of Sikkim

thumb impressions (RTIs) which I affixed on the statement (collectively marked Exhibit 1(a) in two pages). I also gave my statement to the police."

(ii) In the first instance, it is evident that in the Court room

the victim was only „shown' her Section 164 Cr.P.C. statement. It

is not recorded that the contents of the statement were read over

to her to enable her to either refresh her memory as per the

provision of Section 159 of the Indian Evidence Act, 1872 or to

confirm the contents. It is an impossibility to assume that a child

of 9 years (as recorded by the Learned Trial Court), studying in

Class III, as deposed by the victim, would be in a position to verify

the contents of Exhibit 1 on being "shown" the document. The

Learned Trial Court while examining a witness under the provision

of the POCSO Act is required to be more careful and circumspect.

In this context, the observations in Nipun Saxena vs. Union of India4

holds relevance and are extracted hereinabove;

"47. Any litigant who enters the court feels intimidated by the atmosphere of the court. Children and women, especially those who have been subjected to sexual assault are virtually overwhelmed by the atmosphere in the courts. They are scared. They are so nervous that they, sometimes, are not even able to describe the nature of the crime accurately. When they are cross-examined in a hostile and intimidatory manner then the nervousness increases and the truth does not come out."

(iii) In the light of this pronouncement, in the case at hand,

it is unlikely that the child was aware of what she had stated to the

Magistrate earlier or how "showing" her the Section 164 Cr.P.C.

statement would enable her to understand or verify the contents.

The evidence of P.W.7 has been relied on by the Learned Trial

Court for proof of the contents of Exhibit 1 which itself is

(2019) 2 SCC 703

Ash Bahadur Subba vs. State of Sikkim

erroneous. Beneficial reference can be made in this context to the

observations in Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and

Others wherein it was inter alia held that;

"37. It is true that ordinarily if a party to an action does not object to a document being taken on record and the same is marked as an exhibit, he is estopped and precluded from questioning the admissibility thereof at a later stage. It is, however, trite that a document becomes inadmissible in evidence unless the author thereof is examined; the contents thereof cannot be held to have been proved unless he is examined and subjected to cross-examination in a court of law. The document which is otherwise inadmissible cannot be taken in evidence only because no objection to the admissibility thereof was taken."

(iv) Hence, the contents of Section 164 Cr.P.C. ought to

have been identified by the victim and not P.W.7 who obviously

cannot vouch for the truth of the contents. Further, it is now no

more res integra that a statement under Section 164 Cr.P.C. is not

substantive evidence. In R. Shaji vs. State of Kerala6 it was held as

follows;

"26. Evidence given in a court under oath has great sanctity, which is why the same is called substantive evidence. Statements under Section 161 CrPC can be used only for the purpose of contradiction and statements under Section 164 CrPC can be used for both corroboration and contradiction. In a case where the Magistrate has to perform the duty of recording a statement under Section 164 CrPC, he is under an obligation to elicit all information which the witness wishes to disclose, as a witness who may be an illiterate, rustic villager may not be aware of the purpose for which he has been brought, and what he must disclose in his statements under Section 164 CrPC. Hence, the Magistrate should ask the witness explanatory questions and obtain all possible information in relation to the said case.

27. So far as the statement of witnesses recorded under Section 164 is concerned, the object is twofold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement; and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a

(2009) 9 SCC 221

(2013) 14 SCC 266

Ash Bahadur Subba vs. State of Sikkim

statement of a witness is recorded under Section 164, his evidence in court should be discarded, is not at all warranted. .......

28. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 CrPC can be relied upon for the purpose of corroborating statements made by witnesses in the committal court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 CrPC, such statements cannot be treated as substantive evidence.

29. During the investigation, the police officer may sometimes feel that it is expedient to record the statement of a witness under Section 164 CrPC. This usually happens when the witnesses to a crime are clearly connected to the accused, or where the accused is very influential, owing to which the witnesses may be influenced. .........."

On the anvil of the above mentioned principles, the

Section 164 Cr.P.C. statement of the victim is thus disregarded by

this Court as being an unproven document.

(v) Secondly, as pointed out by Learned Counsel for the

Appellant what the act of „chara‟ entailed has not been explained

by the victim. The Learned Trial Court has rushed to assume sans

reasoning that it was an act of penetrative sexual assault and

recorded so, despite the fact that the witness refused to explain

the act and what exactly the accused had done to her. This has

been observed by the Court in the impugned Judgment at

paragraph 52 extracted supra. It is relevant at this juncture to

refer to the decision of this Court in Sashidhar Sharma (supra)

wherein it has been explicitly elucidated that during evidence, the

Learned Trial Courts have to make an effort by invoking the

provision of Section 165 of the Indian Evidence Act, 1872, to elicit

the correct context of the word used by the victim. That, the

victim‟s understanding of the word „chara‟ cannot be assumed by

the Court as the word may be used variously to describe different

Ash Bahadur Subba vs. State of Sikkim

sexual acts and may not necessarily be an expression of

penetrative sexual assault. It was also observed that the

understanding of an act of penetrative sexual assault by a child of

approximately 10 years is also a question that baffles and remains

unanswered. Despite such precautionary words and red flagging

by this Court on interpreting the word „Chara', the Learned Trial

Court in its alacrity to come to the rescue of the child has decided

on its own, without specific description of the act by the victim, to

interpret the word as an act of penetrative sexual assault. This

Court is all for the Trial Courts exhibiting sensitivity to the plight of

a child victim but they cannot go overboard and stonewall the steps

that are mandatorily to be complied with when analysing and

interpreting the evidence given by the witnesses. If the victim was

competent to testify she was also competent to explain the act and

what it involved. If the act is not described, the Court cannot

arrive at a conclusion based on its own assumptions.

(vi) P.W.2 in her evidence in Court inter alia stated that

when she returned home, on entering the house, she saw both the

victim and the accused naked on her son‟s bed. When both, she

and her daughter screamed at the Appellant he ran away.

Relevantly it may be noticed that, in Exhibit 2, the FIR, she had

stated that on hearing her child shouting she went into the inner

room and saw both the child and the Appellant naked and the

Appellant was sexually assaulting the child. The fact that Exhibit 2

was the same FIR lodged by her with her signature Exhibit 2(a) on

it could not be decimated in her cross-examination. She

volunteered to state that it was scribed at her behest by one "Binod

Police" at the Police Station. P.W.6, the said "Binod Police"

Ash Bahadur Subba vs. State of Sikkim

identified the contents of Exhibit 2 as the same contents drafted by

him on the instructions of P.W.2 and later faired by P.W.10,

although, the Prosecution chose not to examine P.W.10 on this

aspect, there is no reason to doubt the filing of Exhibit 2 or its

contents. Suffice it to clarify at this juncture that an FIR is not

substantive evidence. In Krishna Mochi and Others vs. State of Bihar7

the Supreme Court enunciated that even if the first information

report is not proved, it would not be a ground for acquittal, but the

case would depend upon the evidence led by the Prosecution.

(vii) P.W.3 the son of the Appellant did not see the

Appellant naked, he merely saw him sitting on the bed in a room in

the house of P.W.2 and heard P.W.2 yelling at him. P.W.4 the wife

of the Appellant who also reached the place did not support the

Prosecution case with regard to the act of sexual assault.

(viii) P.W.13 examined the genital of the victim and

prepared Exhibit 16 which reads as follows;

"On examination : The patient was conscious, co-operative, well-oriented to time, place and person. Her vitals were table.

On local examination : no fresh injuries seen on labia majora and minora. Pubic hair was absent. There was no tear. She had not worn undergarments at the time. There was no external injuries. After examination, her vaginal swab - two dry and two wet were taken and handed over to the Police for forensic analysis.

................................................. That on 07.01.2020 after receiving the RFSL report bearing Memo No.RFSL/2014/2019/ 1979 dated 29.11.2019 and going through the RFSL report, my final opinion was that there was nothing to suggest of forceful/recent sexual intercourse, however, sexual violence cannot be ruled out."

(ix) Even if the evidence of P.W.1 and P.W.2 are to be

taken into consideration this Court can only conclude that the

AIR 2002 SC 1965

Ash Bahadur Subba vs. State of Sikkim

Appellant was naked and had undressed the child as well, limiting

the offence to one under Section 18 of the POCSO Act for an

attempt to commit an offence under Section 7.

8. The explanation given for the delay in lodging of the

FIR by the I.O. is that P.W.2 did not report the matter earlier, for

fear of being shouted at her by her son. It need requires no

reiteration that the Hon‟ble Supreme Court in State of Punjab vs.

Gurmit Singh and Ors.

has held that delay in lodging of the FIR in

such cases does not vitiate the Prosecution case as follows;

"8.................................................................................

The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged.

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

9. Further, another error that is apparent in the impugned

Judgment of the Learned Trial Court is its observation in Paragraph

63 that in the "Charge-Sheet" the I.O. has sought to give the

reasons for delay. That, he stated that the Complainant did not

report the matter to the Police Station on the same day due to fear

of getting scolded by her son. That this was reiterated by him

before the Court. It is relevant to mention that a Charge-Sheet

cannot be termed as a substantive piece of evidence as it is

nothing but a collective opinion of the investigating officer. It

forms a mere opinion of the investigating officer on the materials

collected by him, as held by the Hon‟ble Supreme Court in Rajesh

(1996) 2 SCC

Ash Bahadur Subba vs. State of Sikkim

Yadav and Another vs. State of U.P.9. The Learned Trial Court

therefore is to gauge the truth of the Prosecution case from the

evidence of the I.O. and not by reference to the Charge-sheet.

10. In light of the above evidence and discussions, it

transpires that the Prosecution has failed to prove its case under

Section 5(m) of the POCSO Act. Indeed the victim was found

naked on the bed as also the Appellant but while looking for

corroboration in the evidence of the Doctor P.W.13 with regard to

sexual assault no such corroboration is given added to which the

Prosecution has failed to give reasons for not furnishing the FSL

report before the Court. We are alive to the fact that it is now

settled law that there does not necessarily have to be physical

indications of the offence of penetrative sexual assault but at the

same time it is to be borne in mind that the victim is aged about 9

years while the Appellant is a grown man of 40 years. In such a

situation, the act of penetrative sexual assault on a child will have

physical repercussions and the indications of such an assault would

be apparent on the genital/private parts of the victim. Relevant

reference in this context can be made to Modi's Medical

Jurisprudence and Toxicology, 24th Edition, in Chapter 31 - Sexual

Offences, at Page 668, whereof a grown man commits offence of

sexual assault on a victim, the following is likely to be detected;

"(4) ............................................................... In girls under 14 years of age, the vaginal orifice is usually so small that it will hardly allow the passage of the little finger through the hymen. It is often difficult to distinguish between an indentation in a fimbriated hymen and a tear, unless the hymen is stretched by a finger tip, glass rod.

The fourchette and posterior commissure are not usually injured in cases of rape, but they may be torn if the violence used is very great. The extent of injury

2022 SCC OnLine SC 150

Ash Bahadur Subba vs. State of Sikkim

to the hymen and the genital canal depends upon the degree of disproportion between the genital organs of both the parties and the violence used on the female. In small children, the hymen is not usually ruptured, but may become red and congested along with the inflammation and bruising of the labia. If considerable violence is used, there is often laceration of the fourchette and the perineum.

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

11. This Court, therefore, is of the considered opinion that

there was no penetrative sexual assault committed by the

Appellant on the victim. The Prosecution case on this aspect has

remained unproved. However, the offence of an attempt to

commit "sexual assault" as defined under Section 18 of the POCSO

Act cannot be ruled out and in light of the evidence on record has

been proved by the Prosecution beyond a reasonable doubt.

12. At this juncture, it is essential to reproduce Section

222(2) of the Cr.P.C. which reads as follows;

"222. When offence proved included in offence charge.─................................................

(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.

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

13. In view of the provisions of Section 222(2) of the

Cr.P.C., the Appellant is convicted under Section 18 of the POCSO

Act read with Section 7 of the same Act. He is sentenced to

undergo rigorous imprisonment for one year six months and to pay

a fine Rs.10,000/- (Rupees ten thousand) only, in default thereof,

to undergo simple imprisonment for a further period of six months,

duly setting of the period of imprisonment already undergone by

him.

14. Appeal allowed to the above stated extent and disposed

of.

Ash Bahadur Subba vs. State of Sikkim

15. No order as to costs.

16. Copy of this Judgment be transmitted to the Learned

Trial Court, for information, along with its records and a copy be

sent forthwith to the Jail Authorities as also e-mailed.

         ( Bhaskar Raj Pradhan )                     ( Meenakshi Madan Rai )
                Judge                                       Judge
                   05-05-2022                                    05-05-2022




           Approved for reporting : Yes




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