THE HIGH COURT OF SIKKIM: GANGTOK
(Criminal Appellate Jurisdiction)
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DIVISION BENCH: HON'BLE MRS JUSTICE MEENAKSHI MADAN RAI, JUDGE
HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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CRL. APPEAL No. 16 of 2021
Milan Kumar Rai,
Aged 37 years,
Son of Indra Bahadur Rai,
Resident of Sangadorjee,
West Sikkim.
At present lodged at Rongyek Jail, Gangtok.
.... Appellant
Versus
State of Sikkim .... Respondent
Appeal under section 374(4) of the Code of Criminal Procedure,
1973
[Against the impugned judgement and order on sentence dated 11.10.2021 passed by
the ld. Special Judge (POCSO) West Sikkim at Gyalshing in
S.T. (POCSO) Case No. 10 of 2020 : State of Sikkim vs. Milan Kumar Rai]
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Appearance:
Mr. Jorgay Namka, Advocate (Legal Aid Counsel) for the appellant.
Dr. Doma T. Bhutia, Public Prosecutor with Mr. S.K. Chettri,
Government Advocate and Mr Shakil Raj Karki, Assistant Government
Advocate for the Respondents.
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Date of hearing : 21.09.2022
Date of judgment : 30.09.2022
JUDGMENT
Bhaskar Raj Pradhan, J.
1. Mr. Jorgay Namka, learned counsel for the appellant,
sought to assail the impugned judgment dated 11.10.2021 passed in
S.T. (POCSO) Case No. 10 of 2020 convicting the appellant under
section 376(2)(n) and 376(3) of the Indian Penal Code, 1860 (IPC) as
well as under section 6 of the Protection of Children from Sexual
Offences Act, 2012 (POCSO) as amended by the POCSO Amendment 2 Crl. A. No.16 of 2021 Milan Kumar Rai vs. State of Sikkim
Act, 2019 on the ground that the victim's statement is not of sterling
quality and is not corroborated by other evidence. It is argued that
there is no evidence to suggest when and where the alleged offence
took place. Mr. Namka submitted that the FIR (exhibit-1) was lodged
on 02.05.2020 after recording the statement of the victim's mother
who stated that she learnt about the incident in the year 2017 which
transpired earlier. The mother of the victim, however, deposed before
the court that it was in the year 2016 that the incident took place as
informed to her. The victim, however, did not give any date or time of
the incident and barely stated that the appellant opened her clothes,
fondled her breasts and committed penetrative sexual assault on her
in the dairy. She also deposed about having being raped ten times
before without giving any further details. The learned counsel took us
through the medical records which reflect that since the victim was
unable to speak history could not be elicited. He also took us through
the depositions of PW-8 - a Social Worker of the District Children
Protection Unit (DCPU) and PW-10 - an Outreach Worker under the
DCPU. Both the witnesses deposed that the victim was
uncommunicative and did not communicate much. However, the same
victim is said to have narrated the story before the learned Magistrate
as well as in Court. It was further argued that the entire case of the
prosecution sans the cryptic deposition of the victim is based on
hearsay evidence which is not acceptable. It is argued that the FIR
(exhibit-1) is based on a statement of the mother (PW-1) of the victim,
according to which, she was informed about the incident by two ladies
PW-11 and another who was not examined by the prosecution. PW-11,
however, candidly admitted that she did not have any personal
knowledge about the incident and did not depose or corroborate the 3 Crl. A. No.16 of 2021 Milan Kumar Rai vs. State of Sikkim
statement of the mother (PW-1) of the victim about the fact that she
had informed her of what the victim had disclosed to her.
2. The learned Public Prosecutor on the other hand
supported the impugned judgment and submitted that in cases like
this where the victim suffers from certain disabilities it is incumbent
upon the court to examine the evidence considering the social
circumstances of the victim and of the area in which the crime has
been committed. The stand of the father (PW-7) of the victim that
since they had already settled the matter involving the victim and the
appellant many years ago, he did not have anything to say about the
incident reflects his indifferent attitude towards the victim who is
voiceless in such circumstances. It is submitted that the victim's
deposition has not been demolished by the defence and as such the
presumptions under the POCSO would be available in favour of the
victim. While replying to the argument of Mr. Namka, the learned
Additional Advocate General took us once again to the deposition of
the mother of the victim and pointed out that her deposition was
based on the direct evidence of the victim and not hearsay as
suggested. Since, the victim had deposed about the incident clearly,
the statement of the mother of the victim to that extent cannot be
termed hearsay. She also drew attention to the deposition of PW-15
who deposed about the meeting in the victim's house which was
attended by a number of people from the village as well as the accused
and the victim with their family members and relatives. PW-15
deposed that he heard the appellant deny the allegation but stated
that in case the victim got pregnant, he would take the responsibility.
It is argued that there was no reason for the appellant to take
responsibility in case the victim got pregnant had he not committed 4 Crl. A. No.16 of 2021 Milan Kumar Rai vs. State of Sikkim
the offence. The learned Additional Advocate General relied upon the
judgment of the Supreme Court in Phool Singh vs. State of Madhya
Pradesh1 and drew the attention of this court to paragraph 5.3 thereof
which is the submission of the learned counsel for the state based on
what was held by the Supreme Court in State (NCT of Delhi) vs. Pankaj
Chaudhary2. It was held that conviction can be sustained on the sole
testimony of the prosecutrix if it inspires confidence and that there is
no rule or practice that the evidence of the prosecutrix cannot be
relied upon without corroboration.
3. 17 witnesses were examined by the prosecution. The
defence did not lead any evidence after the examination of the
appellant under section 313 of the Code of Criminal Procedure, 1973
(Cr.P.C.). The impugned judgment was delivered on 11.10.2021. It was
held that the statement of the victim that whenever she used to be
alone at home the appellant used to have forcible penetrative sex with
her and that he did it several times, as well as the allegation, that he
raped her in the dairy and at home was sufficient to prove that he had
committed the offence on more than one occasion. Although, the
learned Special Judge noticed the apparent lapse on the part of the
investigating agency of not producing an important witness, it did not
deter her in holding the appellant guilty as bad investigation was no
ground for acquittal. The argument of the defence that the allegation of
rape was cast upon the appellant due to the relationship he had with
the victim's mother was dispelled by the learned Special Judge as in
her opinion the argument was farfetched. She opined that even if they
1 (2022) 2 SCC 74 2 (2019) 11 SCC 575 5 Crl. A. No.16 of 2021 Milan Kumar Rai vs. State of Sikkim
had a love affair no mother would stake the reputation of a family at
the cost of her minor girl child and that too as one such as the present
victim, with her unfortunate ailments/condition merely on account of
a soured relationship or to get even with the accused. The learned
Special Judge noticed that the mother of the victim had failed to report
the matter at the appropriate time and in fact settled it. She held that
it would have remained unknown to the police had it not been the
prompt action of the DCPU. The learned Special Judge held that once
it is established that the victim is a child as defined under section
2(1)(d) of the POCSO then sections 29 and 30 come into play and as
nothing contrary has been put up by the defence, presumption can be
drawn against the appellant. Thus, the learned Special Judge found
the appellant guilty of the offences as charged.
4. The mother of the victim deposed that she knew the
appellant as her co-villager and the victim as her eldest daughter. She
confirmed that the victim was 17 years old and was born on
30.10.2003. According to her, sometime in the year 2016 when she
had taken her younger daughter to Gangtok hospital, her husband
sent the victim to the dairy/milk collection centre situated above her
house. When she returned after 10-12 days, she was informed by her
relative - PW-11, that the victim told her that when the victim had
gone to the milk collection centre the appellant had sexually assaulted
her by removing her clothes and committing penetrative sexual
assault. As she was not at home, the victim could not tell her father so
she informed PW-11 who in turn informed the victim's mother's sister-
in-law (not examined). According to the victim's mother, when she
returned home, they informed her about the incident. She also
deposed that since the victim was mentally slow, she wanted to 6 Crl. A. No.16 of 2021 Milan Kumar Rai vs. State of Sikkim
confirm the allegation before taking action. She therefore called the
appellant to her house the next day and asked him, in the presence of
the victim and her uncle-in-law (not examined). The appellant denied
the allegation but the victim insisted that he had committed the
offence. Her uncle-in-law decided and informed her brother-in-law who
then brought some other members from the village, i.e., PW-13, PW-14
and PW-15, to her house along with the appellant. Although, she
wanted to report the matter and informed them so, those present
convinced her not to go to the police station as the appellant stated he
would take responsibility if the victim became pregnant. As there were
no eye witnesses to the incident, those present thought it fit to advise
her to settle the matter amicably and a compromise document was
prepared. Thereafter, in May 2020 some people from an NGO came to
her house when the victim was not keeping well and mentally
disturbed. They questioned the victim's mother and asked what
happened. She told them about the compromise. They took the victim
with them to a home. The victim's mother told them that after the
compromise in 2016 as the victim seemed alright she did not report
the matter. Moreover, since the incident had occurred a long time ago,
she did not feel the necessity to report the matter after so many years.
However, they returned after two days and inquired as to why she did
not report the matter and warned her that if she did not do so they
would do it themselves. She then went to the police station and lodged
the FIR. She identified the birth certificate of the victim (exhibit-3) as
the one handed over by her to the police.
5. During cross-examination, the mother of the victim
admitted that the victim suffered from mental illness since childhood; 7
Crl. A. No.16 of 2021 Milan Kumar Rai vs. State of Sikkim
during her recent bout of illness in May 2020, she used to mutter to
herself and roam around the village; that the appellant had married
twice and in the year 2014 he was in his second marriage. She denied
having a relationship with the appellant.
6. The learned Special Judge recorded that as the victim was
a minor and had a history of mental illness, she in order to satisfy
herself that she is capable of understanding questions put to her, put
various questions and on being satisfied that although the victim was
slow in speech was nevertheless able to fully understand all questions
put to her and was also capable of giving rational answers. When the
victim was asked to tell what happened to her earlier, she replied that
the appellant opened her clothes at home as well as the dairy. When
asked what happened after he opened her clothes, she answered that
he did 'chara' to her. She further clarified that the appellant had
fondled her breasts and committed penetrative sexual assault on her.
She deposed that after that the appellant sometimes used to keep her
locked up at the dairy, go to the shop and on his return do 'chara' to
her. She further deposed that the appellant raped her at the dairy
about 10 times. When the learned Special Judge asked if she had
anything else to say, the victim deposed that he raped her when she
was alone at home and he did this to her 10 times and when she used
to shout, no one used to hear as her relatives would be away collecting
fodder. When the victim was asked if she told anyone about it, she
answered that she had informed Rxxx Chema as there was no one at
home.
7. During cross-examination, the victim admitted that Rxxx
Chema lived nearby; that she had three brothers and one younger
sister; that she had not stated that the appellant had committed 8 Crl. A. No.16 of 2021 Milan Kumar Rai vs. State of Sikkim
penetrative sexual assault on her 10 times at home when her
statement under section 164 Cr.P.C. was recorded; that in that
statement she had stated that the appellant had caught her and had
sex with her one day at the dairy; that she had not stated the number
of times the appellant had sexually assaulted her in her statement
recorded under section 161 Cr.P.C.
8. Dr. Pravitri Rai (PW-3) who examined the victim on
02.05.2020 was the Medical Officer. On her examination, she found no
injuries on her body or in her private parts, breasts, mouth, throat
and wrists. She also did not find any fresh injuries on her hymen or
any bruising. She noticed that the margins were smooth and there was
no bleeding. As the alleged sexual assault occurred in 2017, she was
unable to detect any injuries. She also examined the appellant and did
not notice any scratch marks, abrasions, bruises, cut injuries,
secretions, smegma or foreign objects. She also did not find fresh or
old injuries in his body.
9. Dr. Tukki Doma Bhutia (PW-4), the Gynaecologist
examined the victim on 04.05.2020. She also recorded that there were
no fresh injuries but noticed old hymenal tear at 5 O'clock position.
During cross-examination, she admitted that she could not say
whether the old hymenal tear was due to sexual assault.
10. Ms Jamyang Choden Bhutia (PW-5), the Judicial
Magistrate recorded the victim's statement under 164 Cr.P.C.
According to her, she examined the victim, conducted the preliminary
examination and on being satisfied that she was competent to testify,
recorded her statement.
9
Crl. A. No.16 of 2021 Milan Kumar Rai vs. State of Sikkim
11. N.L. Sharma (PW-6), the Registrar, Births and Deaths,
proved the birth certificate of the victim and identified the signature of
the doctor who issued it. According to him, he checked the records of
the PHC and found that the date of birth of the victim was recorded as
30.10.2003 in the live birth register.
12. The victim's father (PW-7) had nothing to say regarding
the incident as according to him they had already settled the matter
involving the victim and the appellant many years ago. He also
confirmed that the victim was 17 years old, born on 30.10.2003 and
identified her birth certificate. During cross-examination, he admitted
that the victim was mentally slow since she was a child. He also
admitted that few years ago the victim used to live in Gangtok with her
aunt and could not say when she returned from there. He also
admitted that he did not believe the victim at the time when the matter
was settled between her and the appellant. He admitted that he did
not know the date of birth of the victim.
13. According to PW-8, on 30.04.2020 a complaint was
received on the childline regarding a child's sexual abuse and that she
was traumatised for about last two months. On 01.05.2020, she along
with PW-10 was directed by the DCPO to accompany a childline
member (not examined). They visited the house of the victim and met
the parents, the victim and her siblings. The victim was
uncommunicative, appeared pale and unhealthy with body odour and
looked uncared for. When inquired, the mother informed her that
when she had gone to Gangtok, the father had sent the victim to the
milk collection centre where she was sexually abused by the appellant.
When the victim informed the family and villagers, no one believed her 10 Crl. A. No.16 of 2021 Milan Kumar Rai vs. State of Sikkim
on account of her mental condition. The villagers advised the family to
settle the matter which was accordingly compromised. Since, PW-8
found that the condition of the victim's home was not good, she
telephoned the Chairperson, CWC, and on her advice and the consent
of her parents, took the victim to a home. On the next day she was
produced before the CWC and thereafter taken for medical
examination after which she was given counselling. PW-8 thereafter
submitted her intervention report (exhibit-15).
14. PW-10 also deposed about the complaint registered on
10.04.2020 on the childline. She deposed about how she along with
DCPO and two police personnel had gone on 01.05.2020 to intervene
in the case. She deposed about their interaction with the victim, her
parents and other children. According to her as well, the victim being
differently abled did not communicate much and so they counselled
the mother and spoke to her privately who told them about the
incident in the same manner as deposed by PW-8. During cross-
examination, PW-10 admitted that the mother of the victim had
informed them that the incident had occurred in the year 2017; that
when they met the victim they found her mentally disturbed. She also
admitted that her statement about the victim withdrawing after the
incident and becoming uncommunicative was based on what was
informed to them by the victim's mother.
15. Dr. Upashna Gurung (PW-9), the Senior Psychiatrist
deposed that on 05.05.2020, the victim was admitted in the
Psychiatric Ward for about a month during which period she had
examined her. It was found that the victim was suffering from
catatonic schizophrenia with mild mental retardation after conducting 11 Crl. A. No.16 of 2021 Milan Kumar Rai vs. State of Sikkim
an IQ test. During cross-examination, Dr. Upashna Gurung admitted
that catatonia is a sub-type of schizophrenia where a patient is
uncommunicative, unresponsive to mental commands, pain stimuli
and maintains certain postures for long periods of time. She also
admitted that when one suffers from schizophrenia the patient has
hallucinations, delusions with poor self care with disrupted biological
functions such as sleep, appetite, bowel and bladder functions. She
admitted that catatonic schizophrenia is a mental illness and mental
disorder and that the victim was also suffering from mild mental
retardation.
16. PW-11 deposed that she had no personal knowledge about
the incident. She admitted in cross-examination that the victim had
not told her anything about the incident.
17. PW-12, the ASHA Worker, also identified the appellant.
According to her, on the request of the victim's mother she conducted
a pregnancy test on the victim which was negative. She could not
however recall exactly when she had conducted the test.
18. PW-13, the Ex-Panchayat of the area, deposed that
sometime in 2015, he was called by the victim's uncle to the victim's
mother's house. When he reached the victim's house other villagers
were also present. He learnt that the meeting had been called
regarding the incident involving the victim and the appellant. As he
reached a little late the matter had already been settled and he had no
idea about the terms of settlement. During cross-examination, he
admitted that the victim's mother's brother-in-law had once told him
that he suspected that the victim's mother had an affair with the
appellant and that he would often visit her house. 12
Crl. A. No.16 of 2021 Milan Kumar Rai vs. State of Sikkim
19. PW-14 identified the appellant as his relative. He also
deposed about the year 2015 when the victim's uncle called him to the
house of the victim. He reached there at around 6:30 p.m. where he
found the victim, her parents, the appellant and others who had
already settled the matter when he had reached. During cross-
examination, PW-14 stated that the victim often used to tell him and
his wife that her brother and parents used to beat and ill treat her and
further that she used to come to the church and cry.
20. PW-15 also spoke about the year 2015 when the victim's
uncle had called him to the victim's house. When he reached there
after dark he found the room full of people from the village, the
accused with his relatives and the victim with her relatives. However,
when he reached the matter had already been settled. He heard the
appellant deny the allegation but stating that in case the victim got
pregnant he would take the responsibility. During cross-examination,
PW-15 also admitted that there used to be rumour in village about the
appellant being involved in a relationship with the mother of the
victim.
21. The Principal of the school (PW-16) in which the victim
had studied deposed that she was asked to verify the date of birth of
the victim and on checking the school records found that her date of
birth was recorded as 30.10.2003.
22. The Investigating Officer (PW-17) deposed about the
investigation of the case by him and the submission of the charge-
sheet. During cross-examination, he admitted that he learnt during 13 Crl. A. No.16 of 2021 Milan Kumar Rai vs. State of Sikkim
investigation that the victim had been kept in a pathetic condition at
home; that no specific dates or months of the alleged offences had
been given in the case; that during the investigation the victim was
uncommunicative; that he did not find any witness to state that the
victim used to go to the milk collection centre or had seen her there;
that he had not been able to procure the compromise deed; that there
was nothing to show that the appellant was working at the milk
collection centre in the year 2016-17.
23. The appellant during his examination under section 313
Cr.P.C. denied the allegation against him. He also stated that the
allegation of sexual abuse by him was false and that the victim had
made similar accusation earlier while studying in school against
another boy.
24. On examination of the various judgments of the Supreme
Court referred to in Phool Singh supra, it is clear that conviction on the
sole testimony of the victim when her deposition is found to be
trustworthy, unblemished, credible and of sterling quality is
permissible. A prosecutrix of a sex offence cannot be put on par with
an accomplice as she is a victim of crime. She is undoubtedly a
competent witness and her evidence must receive the same weight as
is attached to an injured in cases of physical violence. The same
degree of care and caution must be attached in the evaluation of her
evidence. The court must be alive and conscious that it is dealing with
the evidence of a person who is interested in the outcome of the charge
levelled by her. Keeping this in mind, if the court feels satisfied that it
can act on the evidence of the prosecutrix alone, there is no rule of law
or practice which required it to look for corroboration. In Phool Singh 14 Crl. A. No.16 of 2021 Milan Kumar Rai vs. State of Sikkim
supra, relied upon by the Public Prosecutor, the Supreme Court
noticed that the prosecutrix had fully supported the case of the
prosecution; that she had been consistent right from the beginning;
that nothing had been specifically pointed out why the sole testimony
of the prosecutrix should not be believed; even after thorough cross-
examination, she has stood by what she had stated and had fully
supported the case of the prosecution. In such circumstances, the
Supreme Court held that they see no reason to doubt the credibility
and/or trustworthiness of the prosecutrix. It was also held that the
submission of the defence that no other independent witnesses have
been examined and/or supported the case of the prosecution and the
conviction on the basis of the sole testimony of the prosecutrix cannot
be sustained is concerned, had no substance.
25. It is certain that the victim was a child. The learned
counsel for the appellant did not contest this fact. The prosecution has
proved it with satisfactory evidence. The facts of the present case
however, is a confusion of assertions some direct and some hearsay
made by the prosecution witnesses. The victim's statement is cryptic
as rightfully pointed out by Mr. Namka and does not have any details
as to time and place to verify the truthfulness of the statement. A
victim's statement can be the basis of a conviction if it inspires
confidence. The Supreme Court opines that the victim's statement
must be that of a sterling witness and such a statement should be of a
very high quality and calibre, whose version should therefore be
unassailable. Although, we are in agreement with the submission of
the learned Public Prosecutor that the victim's deposition and the
surrounding circumstances including the social conditioning must be
kept in mind while appreciating the evidence in the case of this nature 15 Crl. A. No.16 of 2021 Milan Kumar Rai vs. State of Sikkim
we cannot be unmindful of the fact that this is a criminal case and
therefore it is incumbent upon the prosecution to prove its case
beyond reasonable doubt. However, the prosecution evidence itself
establishes that the victim suffered catatonic schizophrenia and thus
prone to hallucinations and delusions. On a reading of the 164 Cr.P.C.
statement recorded of the victim (exhibit-4) as well as the deposition it
is noticed that both are extremely cryptic giving no scope to us to
weigh the truthfulness of the statements. The statement and the
deposition although both cryptic vary in its details. It would be difficult
to conclude with absolute certainty that what the victim states in her
deposition is not coloured by hallucination as she was certainly
suffering from catatonic schizophrenia. There are other evidences
which suggest that there could be other reasons which could have led
to the present prosecution. Although, these evidences does not inspire
us to believe them with absolute certainty nevertheless it is evidence
led by the prosecution and they are bound by it. The other evidence
led by the prosecution does not take the case further and it is unclear
even in the end of the trial as to when, exactly where and how the
incident/incidents occurred. According to the mother of the victim
herself the incident occurred several years ago. There are varying
references of the time line when the incident/incidents are said to
have occurred. Even that information is hearsay. Quite clearly, the
medical evidence could not enlighten the case further. It is one thing
to sympathise with the condition of the victim and yet another to hold
an accused person guilty of an alleged crime without absolute
certainty. Most of the other depositions are based on what they heard
from the mother of the victim as the victim was uncommunicative.
Admittedly, the mother was not present when the victim is said to 16 Crl. A. No.16 of 2021 Milan Kumar Rai vs. State of Sikkim
have disclosed to two ladies about the incident. The prosecution could
not bring one of the ladies before the court. The other lady PW-11 had
nothing to depose as according to her she had no personal knowledge.
In fact, she went to the extent of admitting during cross-examination
that the victim had not told her anything about the incident. Even if
we consider that the victim had disclosed the fact to her mother it
would not take the case further due to the compelling evidence led by
the prosecution regarding her mental status which was also deposed
to be true by the parents of the victim. What the victim deposed before
the court may be true. However, 'may be' cannot be the bench mark in
a criminal prosecution. We are required to hold a person guilty only
after the prosecution convincingly lays before the court clear evidence
to establish the guilt of the accused beyond reasonable doubt. The
prosecution has failed to do so. This may have been because of the
delay in lodging the FIR. We cannot base our judgment on surmises
and conjectures.
26. In the circumstances, we are unhesitant to hold that the
prosecution has failed to establish the case beyond reasonable doubt
as required. The appeal is allowed. The impugned judgment and order
on sentence are set aside. The appellant is set free if he is not required
in any other case.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
Approved for reporting : Yes
Internet : Yes
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