THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
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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. 01 of 2022
Subash Chandra Chettri,
aged about 48 years,
S/o late Dilli Ram Chettri,
R/o II- Thingling, Khecheopalri,
West Sikkim.
At present: Central Prison, Rongyek ..... Appellant
Versus
State of Sikkim ..... Respondent
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Appearance:
Mr. B.K. Gupta, Advocate (Legal Aid Counsel) for the appellant.
Mr. S.K. Chettri, Additional Public Prosecutor for the respondent.
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Appeal under Section 374(2) of the Code of Criminal Procedure, 1973
[from the judgment and order on sentence both dated 19.10.2021 passed by the
learned Special Judge (POCSO), West Sikkim at Gyalshing in
S.T. (P.O.C.S.O) Case No. 14 of 2020 (State of Sikkim vs. Subash Chandra Chettri)]
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Date of hearing : 29.08.2022
Date of judgment : 07.09.2022
JUDGMENT
Bhaskar Raj Pradhan, J.
1. The prosecution examined 18 witnesses to establish
two charges framed by the learned Special Judge, Protection of
Children from Sexual Offences Act, 2012 (POCSO Act), 2 Crl. A. No. 01 of 2022 Subash Chandra Chettri & State of Sikkim
Gyalshing, under section 376 AB of the Indian Penal Code, 1860
(IPC) and section 5(m) of the POCSO Act on 23.10.2020. The
prosecution was successful during trial and by the judgment and
order on sentence, both dated 19.10.2021, the learned Special
Judge (POCSO Act), West Sikkim at Gyalshing, convicted and
sentenced the appellant under section 376 AB of the IPC and
section 5(m) of the POCSO Act. The appeal is directed against the
impugned judgment and order on sentence passed by the learned
Special Judge.
2. Mr. B.K. Gupta, learned counsel for the appellant,
drew the attention of this court to the medical report (exhibit-21)
of the victim (PW-1) prepared by Dr. Tukki Dolma Bhutia (PW-
15), which recorded that there were no visible external injuries
and local examination revealed only redness over the labia
minora, although the charge was of penetrative sexual assault. It
was submitted that PW-4 was a vital prosecution witnesses who
turned hostile and did not support the prosecution case. The
learned counsel also drew the attention of the court to the
deposition of PW-5 in which she deposed that the victim had told
her mother in her presence in Nepali - "malai Subash Uncle le
paisa dera jabarjasti naramro kaam garyo". He also drew the
attention of this court to the deposition of PW-9 in which she
deposed that when she asked the victim as to what happened,
she told her that the appellant had given her Rs.15/- and done
„naramro kaam‟. It was submitted that in the matter of Ash 3 Crl. A. No. 01 of 2022 Subash Chandra Chettri & State of Sikkim
Bahadur Subba vs. State of Sikkim : Crl. A. No. 02 of 2021, a similar
situation had been considered where the victim had stated that
the accused had committed „chara‟ on her and the Division
Bench of this Court had held that the victim‟s understanding of
the word „chara‟ without further explanation cannot be assumed
as the word may be used variously to describe sexual acts and
may not necessarily be an expression of penetrative sexual
assault.
3. Mr. S.K. Chettri, learned Additional Public
Prosecutor, submitted that the impugned judgment and order on
sentence are sound and need no interference. He took us to the
charge framed and the deposition of the victim, the victim‟s
mother (PW-3), victim‟s father (PW-2), PW-4, PW-5, PW-6, PW-9
and PW-12, and submitted that the prosecution had been able to
establish the charges beyond reasonable doubt. He relied upon
the judgment of the Supreme Court in Swaroop Singh vs. State of
Madhya Pradesh1, in which it was held that:-
"15. In this context it will be worthwhile to refer to the principles laid down by this Court as to the manner in which the evidence of a rape victim should be evaluated to ascertain the truth. The said decision is reported in State of Punjab v. Gurmit Singh [(1996) 2 SCC 384 : 1996 SCC (Cri) 316] . Paras 8 and 21 are relevant which read as under: (SCC pp. 395-96 & 403) "8. ... The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved
1 (2013) 14 SCC 565 4 Crl. A. No. 01 of 2022 Subash Chandra Chettri & State of Sikkim
in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case 5 Crl. A. No. 01 of 2022 Subash Chandra Chettri & State of Sikkim
spoken of by the victim of sex crime strikes the judicial mind as probable. ...
***
21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault--it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
4. Besides the victim, the prosecution also examined her
mother and her father. All of them identified the appellant. The
First Information Report (FIR) (exhibit-1) lodged by the victim on
09.07.2020 alleged that when he was committing rape on her,
his wife came suddenly and saw them, compelling him to leave
her.
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Crl. A. No. 01 of 2022 Subash Chandra Chettri & State of Sikkim
5. The appellant‟s wife was also examined as PW-4.
However, she was declared hostile and cross-examined by the
prosecution.
6. PW-5, who also identified the appellant as her
neighbour, was the witness who met the victim immediately after
the incident and found her wailing and agitated. Although,
initially the victim continued to cry and refused to divulge
anything, when her niece (PW-9) asked the victim what happened
she informed her that the appellant had given her money, opened
her clothes and sexually assaulted her. Thereafter, PW-5
informed the victim‟s mother about it and in her presence told
her that the appellant had given her money and sexually
assaulted her. PW-5 also noticed some currency notes in her
hand.
7. PW-8 visited the house of PW-5 who called out for
him on the relevant day. He found her lying down on the bed and
crying. On the request of the victim‟s mother, he carried the
victim to her house. He along with PW-7 were seizure witnesses
to certain seizures made by the Investigating Officer.
8. PW-9 was a child witness who deposed that the victim
had told her that the appellant had done "naramro kaam" after
giving her 15 rupees.
9. PW-11 was another minor who also testified against
the appellant. She identified the appellant as the person who 7 Crl. A. No. 01 of 2022 Subash Chandra Chettri & State of Sikkim
lives above her house and the victim as her cousin. According to
her, on the request of victim‟s mother, she accompanied her to
PW-9‟s house on the relevant day where she found the victim
crying and when she was asked she informed her that the
appellant had done "naramro kaam" to her.
10. The victim‟s mother deposed that the victim was 12
years old and born on 21.07.2008. She identified the victim‟s
birth certificate (exhibit-5). The victim‟s father also deposed that
the victim was 12 years old born in the year 2008 in Yuksom
Hospital from where her birth certificate (exhibit-5) had been
issued. The age of the victim has been adequately proved. The
Principal (PW-10) of the school that the victim attended, a nurse
(PW-12) working in the Public Health Centre at Yuksom and a
Lower Division Clerk (PW-16) working at Yuksom Public Health
Centre as the In-charge Dealing Assistant for Births and Deaths
Section, proved the birth certificate (exhibit-5) and the age of the
victim as a minor below 12 years of age. The then Panchayat
President (PW-17) was witness to the seizure of the birth
certificate (exhibit-5) of the victim vide seizure memo (exhibit-6)
from the father of the victim. The appellant does not contest the
victim‟s age.
11. Dr. Jigmee W. Bhutia (PW-13) - Medical Officer,
posted at the District Hospital Gyalshing, examined the appellant
on 09.07.2020, itself. He recorded that the appellant‟s breath 8 Crl. A. No. 01 of 2022 Subash Chandra Chettri & State of Sikkim
smelt of alcohol and opined that he was capable of sexual
activity.
12. Ms Jamyang Choden Bhutia (PW-14), the learned
Judicial Magistrate on being satisfied that the victim desired to
give her statement voluntarily recorded it under section 164 of
the Code of Criminal Procedure, 1973 (Cr.P.C.). She proved the
questionnaire prepared by her (exhibit-3) as well as the victim‟s
statement recorded under section 164 Cr.P.C. (exhibit-4).
13. Dr. Tukki Dolma Bhutia was the Gynaecologist who
on 09.07.2020 examined the victim. The victim (PW-1) had given
history of being sexually assaulted by the appellant at his
residence and pain over her private parts followed by
unconsciousness. On examination, she did not see any visible
external injuries on the body but did find redness present over
the labia minora. According to Dr. Tukki Dolma Bhutia, the
victim‟s hymen was intact, fourchette and posterior commissure
normal. During cross-examination by the defence, she stated
that redness found on labia minora could have been caused as a
result of sexual assault. She admitted that she had not given her
final opinion in her medical report of the victim (exhibit-21).
14. Deputy Superintendent of Police C.P. Silal (PW-18)
was the Investigating Officer who investigated the case and filed
the charge-sheet.
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Crl. A. No. 01 of 2022 Subash Chandra Chettri & State of Sikkim
15. Save minor discrepancies pointed out by the learned
counsel for the appellant, the prosecution witnesses except the
appellant‟s wife (PW-4), stood their ground and withstood the
cross-examination by the defence. During cross-examination by
the prosecution, the appellant‟s wife also admitted that the police
had recorded her statement during investigation. She admitted
that she had stated to the police that on the day of the incident
she had returned from the field and heard the cries of a child
upstairs; that when she heard a child crying she had rushed
upstairs and through a crack in the „ekra‟ plaster she saw the
victim crying in their room and trip over a blanket; she had seen
her husband pulling up his trousers; that she made the
statement after seeing all these herself; that on seeing that, she
asked them what was the „tamasha‟ (show) and thereafter went
to the victim‟s house to call her father; that she had found the
father alone and found it awkward to tell her father; and that
when she reached home after that she found the appellant lying
on the bed and when she asked him about the victim, he told her
that she had been taken to the house nearby.
16. The learned special Judge has examined the evidence
in detail. She opined that the victim was a child below the age of
12 years. The learned Special Judge also considered the
testimony of the victim firm and clear. That she had consistently
deposed about the incident and as to how the appellant had
inserted his penis to her vagina. The learned Special Judge 10 Crl. A. No. 01 of 2022 Subash Chandra Chettri & State of Sikkim
opined that this deposition was consistent to her statement
recorded under section 164 Cr.P.C. which also alleged that the
appellant had grabbed her, undressed her and thereafter
inserted his penis to her vagina. She was of the opinion that the
victim‟s deposition was corroborated by PW-5, PW-9 and PW-11.
The learned Special Judge found that the prosecution witnesses
corroborated each other in various circumstances proved by
them. She relied upon the evidence of the appellant‟s wife and
found her deposition, inspite of turning hostile, to be relevant in
corroborating the version of the victim. The learned Special
Judge opined that Dr. Tukki Doma Bhutia had noticed that there
was redness over the labia minora of the victim and although
mere redness could not per se be considered sufficient to prove
rape it is not necessary that in order to prove rape the hymen
must be ruptured and there must be visible injuries. She further
opined that the redness noticed in the labia minora of the victim
the same morning, soon after the incident, reinforces the case of
the prosecution. The learned Special Judge held that inspite of
the presumptions of sections 29 and 30 of the POCSO Act, the
defence has not brought out any evidence to the contrary. It was
held that the prosecution has proved by way of cogent and
reliable evidence beyond reasonable doubt that the appellant had
committed rape and aggravated penetrative sexual assault on the
victim, a child who was below 12 years of age, and found him 11 Crl. A. No. 01 of 2022 Subash Chandra Chettri & State of Sikkim
guilty as charged under section 376 AB of the IPC and section 6
of the POCSO Act.
17. We find that the learned Special Judge has correctly
appreciated the evidence and the law, and found the appellant
guilty of the offences charged. The prosecution has been able to
establish the case beyond reasonable doubt. The circumstances
under which the incident occurred, the time, place and the
manner are proved by prosecution witnesses who were present
during the relevant time. The victim was certainly a child under
the age of 12 years. This fact stands proved by the prosecution
and not contested. The victim has withstood the cross-
examination of the defence and there is no reason for us to doubt
her version. The victim‟s testimony is not only consistent but
fairly detailed, describing the ordeal she went through. There is
sufficient corroboration to the victim‟s testimony by the other
prosecution witnesses as correctly appreciated by the learned
Special Judge. Both under sections 376 AB of the IPC as well as
section 5 of the POCSO Act, a slight penetration without any
visible injury is enough to constitute rape and aggravated
penetrative sexual assault. Penetration to any extent is sufficient
to constitute rape under IPC and penetrative sexual assault
under the POCSO Act. The victim‟s deposition is specific,
consistent and clear that the appellant had inserted his penis
into her vagina. The redness on her labia minora noticed by Dr.
Tukki Dolma Bhutia on 09.07.2020, the same day of the assault, 12 Crl. A. No. 01 of 2022 Subash Chandra Chettri & State of Sikkim
sufficiently corroborates the victim‟s version. There is no reason
for us to doubt it. In the circumstances, we uphold the conviction
of the appellant under section 376 AB of the IPC and section 6 of
the POCSO Act.
18. The offence under section 376 AB of the IPC is
punishable with rigorous imprisonment for a term which shall
not be less than twenty years, but which may extend to
imprisonment for life which shall mean imprisonment for the
remainder of that person‟s natural life, and with fine or with
death. It also requires that the fine imposed shall be just and
reasonable to meet the medical expenses and rehabilitation of
the victim. Section 6 of the POCSO Act also provides identical
punishment.
19. The learned Special Judge has sentenced the
appellant for a minimum period of 20 years and fine of Rs.5000/-
for each of the offences. We are of the view that the sentences
imposed keeping in mind the facts of the case is adequate and
the order on sentence needs no interference. We also uphold the
quantum of compensation directed to be paid to the victim as
well as the direction that the sentences shall run concurrently
and that the period of sentence already undergone during
investigation and trial be set off against the sentences imposed.
20. The appeal fails and is thus, rejected.
21. Crl. A. No. 01 of 2022 stands disposed of accordingly. 13
Crl. A. No. 01 of 2022 Subash Chandra Chettri & State of Sikkim
22. A copy of this judgment shall be forwarded to the
learned Trial Court along with the original case records.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
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