THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
Dated : 12th April, 2023
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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.12 of 2022
Appellant : Sak Tshering Lepcha
versus
Respondent : State of Sikkim
An Application under Section 374(2) of the
Code of Criminal Procedure, 1973.
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Appearance
Mr. Udai. P. Sharma, Advocate (Legal Aid Counsel).
Mr. Yadev Sharma, Additional Public Prosecutor with Mr. Sujan
Sunwar, Assistant Public Prosecutor for the State-Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The Appellant assails the Judgment, dated 28-02-2022,
in Sessions Trial (POCSO) Act, Case No.03 of 2021, of the Court of
Learned Special Judge (POCSO) Act, at Mangan, North Sikkim,
convicting him of the Offence under Section 375 of the Indian Penal
Code, 1860, (hereinafter, the "IPC"), punishable under Section 376
of the IPC and the consequent Order on Sentence, dated 01-03-
2022, by which he was sentenced to undergo rigorous
imprisonment for ten years and to pay a fine of ₹1,000/-(Rupees
one thousand) only, with a default clause of imprisonment. He was
acquitted of the offence under Sections 5(j)(ii), 5(n) and 7 of the
Protection of Children from Sexual Offences Act, 2012 (for short
the "POCSO Act").
2. In Appeal it was the submission of Learned Counsel for
the Appellant that, although the victim alleges and has deposed Crl.A. No.12 of 2022 2
Sak Tshering Lepcha vs. State of Sikkim
that the Appellant was molesting her sexually over a period of
time, however, she did not inform either P.W.1, her aunt or P.W.3,
her mother or for that matter her cousins, being the children of the
Appellant with whom she was living, raising doubts about the
involvement of the Appellant in the alleged offence. On walking
this Court through the evidence of P.W.10, the victim, Learned
Counsel urged that it is apparent that the victim was an intelligent
individual and could well understand the questions put to her and
gave rational answers. In such a circumstance, the delay of
seventy-three days‟ in lodging the FIR is unexplained by the
Prosecutrix and the Prosecution. That, P.W.1 has specifically
stated that P.W.10 exhibited no behavioural changes during the
time when she was allegedly being sexually assaulted, hence there
were no signs of trauma to indicate sexual assault. P.W.3, the
mother of the Prosecutrix who was separated from her husband,
revealed that her child used to visit her occasionally at her house
but she did not complain to P.W.3 of any sexual assault. P.W.4,
the teacher in her school has also deposed that the victim did not
inform her of her condition.
(i) That, the cross-examination of P.W.1 reveals that the
victim in fact had a boyfriend, therefore his role in her alleged
sexual assault cannot be ruled out. That, it is only in her evidence
before the Court that she stated that she screamed when the
incident occurred but she made no such revelation in her
statements under Sections 161 and 164 of the Code of Criminal
Procedure, 1973, (hereinafter, the "Cr.P.C."). That, P.W.2, who
resides on the floor below, on rent, in the same house, never heard
any screams from the residence of the Appellant. That, the victim‟s Crl.A. No.12 of 2022 3
Sak Tshering Lepcha vs. State of Sikkim
evidence being embellished has to be approached with
circumspection as she is apparently unreliable. That, although the
DNA tests carried out by P.W.15 were inconclusive with regard to
the paternity of the fetus, the Prosecution failed to establish even
the pregnancy of the Prosecutrix in the absence of evidence of the
Doctor, who allegedly conducted the abortion on the victim.
Hence, the guilt of the Appellant not having been proved beyond
reasonable doubt, the Appeal be allowed.
3. Learned Additional Public Prosecutor per contra,
contended that the Prosecution has proved its case beyond all
reasonable doubt. Refuting the argument pertaining to the alleged
boyfriend of P.W.10, it was contended that this is a false narrative
of the Appellant who was afforded an opportunity to explain such a
circumstance in his examination under Section 313 Cr.P.C. but he
failed to reveal the identity or the alleged involvement of the
alleged boyfriend, who is a figment of his imagination. P.W.1 was
told of the incident by P.W.10 and she has corroborated the
victim‟s statement with regard to the incident. That, although
there is no DNA report confirming the involvement of the Appellant
or the paternity of the fetus, however, it is clear that the Appellant
committed the offence based on the cogent evidence of the victim.
The victim being a child and living in the house of her uncle, the
perpetrator, fearing adverse penal consequences was unable to
narrate the incident to anyone including her parents. For the same
reason she was unable to approach the concerned authorities.
That, in fact the age of the victim being fourteen years has been
unequivocally proved by the evidence of P.W.1, P.W.4, P.W.12 and
P.W.13 although the Learned Trial Court was not convinced of it Crl.A. No.12 of 2022 4
Sak Tshering Lepcha vs. State of Sikkim
and thereby opted to ignore it and acquit the Appellant of the
charges framed under POCSO Act. It was however conceded by
Learned Additional Public Prosecutor that the State-Respondent has
opted not to assail the finding of the Learned Trial Court pertaining
to the age of the victim. That, in light of the grounds advanced the
Appeal be disallowed.
4. We have given due consideration to the submissions
put forth by Learned Counsel for the parties and perused all
documents and evidence on record. This Court has to determine
whether the conviction of the Appellant was correct or whether it
warrants interference.
5. On 08-03-2021, at around 1900 hours, the victim,
P.W.10, allegedly aged about fourteen years, lodged Exhibit 7 the
First Information Report (for short, the "FIR"), before the
concerned Police Station, accusing her paternal uncle, aged about
thirty-six years, of sexually assaulting her for the past two years.
That, on 26-12-2020, at around 1300-1400 hours, when she went
to the room of her uncle to fetch a mirror, he raped her and there
was no one at home to hear her screams. He also threatened her
and told her not to narrate the incident to anyone. On 05-03-2021,
while at school she fell ill with giddiness and vomiting. P.W.1, her
aunt, the wife of the Appellant, conducted a pregnancy test on the
victim, the result of which was positive. Following the
circumstance on 08-03-2021, she was taken to Gangtok, for
further medical tests. The same evening, she verbally lodged
Exhibit 7, duly reduced to writing by P.W.8, the Woman Constable
at the Police Station and also entered by the Police Station into the
format of FIR, being Exhibit 23. On receipt of Exhibit 7, Crl.A. No.12 of 2022 5
Sak Tshering Lepcha vs. State of Sikkim
investigation was conducted by P.W.17, the Investigating Officer
(for short, the "I.O."). His investigation confirmed the facts alleged
in Exhibit 7, accordingly Charge-Sheet was submitted against the
Appellant under Sections 376/506 of the IPC read with Sections 6
and 10 of the POCSO Act. The Learned Trial Court framed Charges
against the Appellant under Section 7 punishable under Section 8
of the POCSO Act, Sections 5(j)(ii) and 5(n) punishable under
Section 6 of the POCSO Act and Section 375 punishable under
Section 376 of the IPC. The Charges were read over to the
Appellant who pleaded "not guilty", upon which the Prosecution
chose to examine seventeen witnesses. Following the closure of
Prosecution evidence, the Appellant was examined under Section
313 of the Cr.P.C. He claimed to have been falsely implicated in
the matter. He had no witness to examine, hence the final
arguments of the parties were heard. The Learned Trial Court on
considering the evidence and documents on record convicted and
sentenced the Appellant as reflected supra.
6. P.W.10 as the victim obviously is the only witness to
the incident of sexual assault. She has deposed unwaveringly that
she was living in the house of the Appellant, her paternal uncle and
aunt P.W.1, since the time she was in Class VI (six). When she
was in Class VII (seven), the Appellant started kissing her and
fondling her private parts. On 26-12-2020, at around 01.00-02.00
p.m. when she went to the room of the accused to fetch a mirror,
he forcibly committed penetrative sexual assault on her. At that
time, his wife and daughter were not in the house. She screamed
for help but he threatened to beat her. It was the specific
contention of Learned Counsel for the Appellant that the evidence Crl.A. No.12 of 2022 6
Sak Tshering Lepcha vs. State of Sikkim
of the victim pertaining to her screams is vacillating and
consequently unreliable, however, on perusal of Exhibit 7, the oral
information given by her, reduced to writing by P.W.8, it is
revealed that she has categorically stated that she screamed
resoundingly but as there was no one at home at the relevant time,
it went in vain. In Exhibit 11, her Section 164 Cr.P.C. statement
before the Learned Judicial Magistrate, she has again reiterated
that when the Appellant forced himself on her, she screamed but
he threatened her and told her not to scream. Therefore, the
question of there being any contradiction or embellishment in her
evidence before the Court, on this aspect, is nullified.
(i) Learned Counsel for the Appellant has also relied on
the evidence of P.W.1 to indicate that perhaps a third person i.e.,
the victim‟s boyfriend was involved. We find that it is clearly the
introduction of a "Red Herring" by P.W.1, in light of the fact that
the Appellant is her husband. Investigation reveals no such
boyfriend nor it is writ in the evidence of any other witness of the
Prosecution, including P.W.10. In the impugned Judgment, it is
seen that the Learned Defense Counsel had submitted before the
Learned Trial Court that the Prosecutrix has a „Facebook' boyfriend.
Both these allegations are unsubstantiated lacking ocular or
circumstantial evidence. P.W.1 has subsequently admitted that she
was unaware who such boyfriend was and that the victim
"referred" to the name of her husband as the perpetrator of the
offence. These statements establish the complicity of the
Appellant. P.W.10 stated that on 05-03-2021 she had a bout of
dizziness in the school assembly and was sent home by her class
teacher. Although she shared the problem with P.W.1, she did not Crl.A. No.12 of 2022 7
Sak Tshering Lepcha vs. State of Sikkim
pay any heed but proceeded to Gangtok, while at the same time
handing over a pregnancy kit to one lady who conducted the
pregnancy test on her, which came positive. This lady is P.W.2, a
teacher at the Integrated Child Development Services (for short,
the "ICDS"), Centre. According to P.W.2 after taking the test, she
forwarded it by "Whatsapp", to the phone of P.W.3, who confirmed
that the result was positive for pregnancy. Learned Counsel for the
Appellant sought to convince this Court that P.W.2 did not hear any
scream or cries from anyone inside the house of the accused,
rendering the allegation by the victim against the Appellant as
false. We deem it necessary to observe that P.W.2 would obviously
not be in the house 24 x 7, waiting for screams to emanate from
the house of the Appellant, such a situation cannot be envisioned.
The evidence of P.W.12 reveals that on 08-03-2021, Prosecutrix
was taken to the concerned Government Hospital at around 1930
hours. She did not find any abnormality in her medical
examination of the victim. The last menstrual period of the
Prosecutrix was recorded as 03-01-2021 and her urine test for
pregnancy was found positive. Exhibit 17 is the Medical Report of
the Prosecutrix prepared by P.W.12. The evidence of the doctor is
conclusive of the fact that the victim was pregnant at the time of
her examination at the Hospital. P.W.8, the Police Constable would
buttress the Prosecution case with regard to the pregnancy of the
victim as according to her, during investigation, the I.O. of the case
seized the Sonology Report of the Prosecutrix done at Ruchi
Diagnostic Clinic on 08-03-2021 and identified it as such.
(ii) In light of the foregoing discussions we conclude that
the Appellant was the perpetrator of the offence which has been Crl.A. No.12 of 2022 8
Sak Tshering Lepcha vs. State of Sikkim
established by unimpeachable evidence. Consequently, we uphold
the impugned Judgment of the Trial Court convicting the Appellant
under Section 375 punishable under Section 376 of the IPC.
7. Appeal dismissed and disposed of accordingly.
8. No order as to costs.
9. Copy of this Judgment be forwarded to the Learned
Trial Court along with its records.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
12-04-2023 12-04-2023
Approved for reporting : Yes
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