Sikkim High Court
Pema Tshering Lepcha @ Mikmar vs State Of Sikkim on 24 April, 2024
Author: Meenakshi Madan Rai
Bench: Meenakshi Madan Rai
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
Dated : 24th April, 2024
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SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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Crl. A. No.19 of 2022
Appellant : Pema Tshering Lepcha @ Mikmar
versus
Respondent : State of Sikkim
Appeal under Section 374(2) of the
Code of Criminal Procedure, 1973
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Appearance
Mr. Jorgay Namka, Senior, Advocate (Legal Aid Counsel) with
Ms. Rinchen Ongmu Bhutia, Advocate for the Respondent.
Mr. Yadev Sharma, Additional Public Prosecutor for the Appellant.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The facts of the Prosecution case are that, on 31-03-
2022, Exhibit P-1/PW-1, a Complaint was lodged by PW-1, the
teacher of the school, where the victim, PW-6 was a Class VIII
student. According to PW-1, she was informed by PW-6 that the
Appellant had sexually harassed her on 29-03-2022 at around
03.00 p.m. at her residence, by touching her body and breasts.
PW-1 then informed the Principal of the school, PW-2 and also
lodged Exhibit P1/PW-1. Pursuant thereto, the criminal justice
system was set into motion by registration of the case against the
Appellant under Section 8 of the Protection of Children from Sexual
Offences Act, 2012 (hereinafter, the "POCSO Act"). Investigation
by the Investigating Officer (I.O.), PW-15, found prima facie
materials against the Appellant under Section 354 of the Indian
Penal Code, 1860 (hereinafter, the "IPC"), read with Section 10 of
the POCSO Act. Charge-Sheet was submitted before the Court of
Pema Tshering Lepcha @ Mikmar vs. State of Sikkim
the Learned Special Judge (POCSO Act), North Sikkim, at Mangan.
The Learned Trial Court framed charge against the Appellant under
Section 9(l) of the POCSO Act, punishable under Section 10 of the
same Act and under Section 354 of the IPC. The Appellant sought
a trial after entering a plea of "not guilty" to the charges. Fifteen
witnesses furnished by the Prosecution, including the I.O. of the
case were examined and thereafter the Appellant was examined
under Section 313 of the Code of Criminal Procedure, 1973
(hereinafter, the "Cr.P.C."). Pertinently, after the final hearing was
concluded the Learned Trial Court added a charge against the
Appellant under Section 354B of the IPC, by invoking its powers
under Section 216 of the Cr.P.C. On being satisfied that no
prejudice was caused to either party and both parties having raised
no objection to such addition, the charge under Section 354B of the
IPC was read over to the Appellant to which he again pleaded
innocence and claimed trial. The Learned Trial Court on analyzing
the entire evidence on record concluded that the Prosecution had
proved its case beyond a reasonable doubt against the Appellant,
under Section 354 and Section 354B of the IPC and convicted him
accordingly. The Appellant was however acquitted of the offence
under Section 9(l) of the POCSO Act, punishable under Section 10
of the same Act on the age of minority of the victim not being
proved, vide its Judgment, dated 05-08-2022, in Sessions Trial
(POCSO Act) Case No.08 of 2022 (State of Sikkim vs. Pema Tshering
Lepcha @ Mikmar). By the Order on Sentence of the same date, the
Appellant was sentenced to undergo simple imprisonment for a
period of one year under Section 354 of the IPC and to pay a fine
of ₹ 500/-(Rupees five hundred) only. For the offence under
Section 354B of the IPC, he was sentenced to undergo simple
Pema Tshering Lepcha @ Mikmar vs. State of Sikkim
imprisonment for a period of three years and to pay a fine of ₹
1,000/-(Rupees five hundred) only. Both sentences of fine bore
default clauses of imprisonment and the period of incarceration
were ordered to run concurrently. The fine, if recovered, was
ordered to be paid as compensation to the minor victim.
2. Aggrieved by the Judgment and the Order on Sentence,
the Appellant is before this Court urging that, the charge under
Section 354B of the IPC was added rather belatedly when the stage
was for pronouncement of Judgment with no opportunity afforded
to the Appellant to cross-examine the Prosecution witnesses on the
added charge. The charge under Section 354B of the IPC pertains
specifically to disrobing of the victim by the Appellant. An
opportunity ought to have been extended to the Appellant to
defend himself on the fresh charge, in the absence of which, he is
prejudiced having been sentenced to suffer a longer period of
imprisonment under Section 354B of the IPC without having
defended himself for the charge added by the Learned Trial Court.
Hence, the impugned Judgment be set aside and the Appellant be
acquitted of the charges framed against him.
3. Learned Additional Public Prosecutor for the State-
Respondent, while contesting the arguments advanced by Learned
Counsel for the Appellant, contended that Section 216 of the
Cr.P.C. can be invoked any time during the trial by the Learned
Trial Court. That, so far as the allegation of prejudice caused to
the Appellant is concerned, it is evident that the charge framed for
the first time under Section 9(l) of the POCSO Act detailed the
offence committed by the Appellant, viz.; that in the guise of
teaching her how to cut flowers he had lifted her in his arms, taken
her inside the store room, where he touched her breasts, kissed
Pema Tshering Lepcha @ Mikmar vs. State of Sikkim
her on her arms and neck and then tried to pull down her trousers
as well as his own trousers. Thus, when the evidence was led by
the Prosecution the Appellant had sufficient notice of the fact that
the charge also included use of force against the victim with intent
to disrobe her and the Appellant had put up his defence accordingly
during cross-examination. That, the Judgment and Order on
Sentence being legally sound and having caused no prejudice to
the Appellant ought not to be disturbed.
4. The Prosecution case pertains to the allegation of the
Appellant, aged about thirty-five years, sexually assaulting the
victim alleged to have been twelve years at the time of the incident
and attempting to disrobe her during such assault by the use of
criminal force.
5. This Court is now to determine whether a failure of
justice has been occasioned by the Learned Trial Court framing the
additional charge under Section 354B of the IPC, after hearing the
final arguments of the parties and by the Court's failure to afford
the Appellant the opportunity of cross-examining the Prosecution
witnesses after adding the charge.
(i) If so, whether the conviction of the Appellant is
justified.
(ii) Firstly, a perusal of the day to day orders of the
Learned Trial Court reveals that on 15-07-2022 the Prosecution
closed its evidence and the Appellant was examined under Section
313 of the Cr.P.C on the same date. On the next date fixed i.e.,
21-07-2022 the final arguments of the parties was heard. The
date fixed for Judgment was 28-07-2022. However, before the
Judgment could be pronounced on 28-07-2022, the Court noted in
its order dated 27-07-2022, apparently erroneously, that the date
Pema Tshering Lepcha @ Mikmar vs. State of Sikkim
was fixed for Judgment. Be that as it may, the Learned Trial Court
went on to record on 27-07-2022 as follows;
"....................... At the outset, on perusal of the
charge sheet and the other relevant materials, it is seen
that charge ought to have been framed under Section 354B
IPC for assault or use of criminal force to women with
intent to disrobe.
My Ld. Predecessor had framed charge only under
Section 10, POCSO Act and under Section 354 IPC. This
Court taking the recourse to Section 216 which is on
alternation or addition of charge, hereby frames additional
charge against the accused under Section 354B IPC on
finding prima facie material.
Ld. Counsels for the parties concedes to the same.
................................................................................................
On perusal of the charge framed by my Ld.
Predecessor on 07.06.2022, the first charge framed is for
the offence defined under Section 9(l) and punishable
under Section 10 POCSO Act. While framing the charge,
my Ld. Predecessor has mentioned the prima facie material
of the accused allegedly trying to disrobe the victim (tried
to pull down her trouser). Therefore, it is apparent that the
accused was aware of this fact and no prejudice is thus
being caused to the accused nor the prosecution by
addition of this charge.
As per Section 216 (3) Cr.P.C. this Court is satisfied
that by framing of this additional charge, no prejudice is
caused to the accused in his defence nor to the prosecutor
conducting the case and hence, the trial shall proceed
accordingly.
Ld. Counsels for the parties also submitted the
same.
Now to come up for Judgment on 05.08.2022.
..............................................................................................."
6. Firstly, while dealing with the powers vested in the
Learned Trial Court under Section 216 of the Cr.P.C. a two judge
bench of the Supreme Court in P. Kartikalakshmi vs. Sri Ganesh and
Another considered the framing of an additional charge for an
offence under Section 417 of the IPC in addition to the earlier
charge of Section 376 of the IPC. The Court inter alia held that
Section 216 of the Cr.P.C. empowers the Court to alter or add any
charge at any time before the Judgment is pronounced. That, the
power vested in the Court is exclusive to the Court and there is no
right in any party to seek for such addition or alteration by filing
any application as a matter of right. It may be noted that if there
was an omission in the framing of the charge and if it comes to the
(2017) 3 SCC 347
Pema Tshering Lepcha @ Mikmar vs. State of Sikkim
knowledge of the Court trying the offence, the power is always
vested in the Court, as provided under Section 216 of the Cr.P.C.,
to either alter or add the charge and that such power is available
with the Court at any time before the Judgment is pronounced. It
is an enabling provision for Court to exercise its power under such
contingencies which comes to its notice or is brought to its notice.
7. In Central Bureau of Investigation vs. Karimullah Osan
Khan , the Supreme Court held that Section 216 of the Cr.P.C.
gives considerable power to the trial Court, that even after the
completion of evidence, arguments being heard and Judgment
being reserved it can alter and add to any charge subject to the
conditions mentioned therein. The expressions "at any time" and
before the "Judgment is pronounced" would indicate that the power
is very wide and can be exercised, in appropriate cases, in the
interest of justice, but at the same time the Courts should also see
that its orders would not prejudice the accused.
8. The above decisions have illustrated the powers of the
Court under Section 216 of the Cr.P.C. and hence it can be
exercised by the Court as and when the Court deems it necessary.
9. Section 464 of the Cr.P.C. deals with effect of omission
to frame, or absence, or error in, charge. The said section is
extracted hereinbelow for convenient reference as follows;
"464. Effect of omission to frame, or absence
of, or error in, charge.--(1) No finding, sentence or order
by a Court of competent jurisdiction shall be deemed
invalid merely on the ground that no charge was framed or
on the ground of any error, omission or irregularity in the
charge including any misjoinder of charges, unless, in the
opinion of the Court of appeal, confirmation or revision, a
failure of justice has in fact been occasioned thereby.
(2) If the Court of appeal, confirmation or revision is
of opinion that a failure of justice has in fact been
occasioned, it may--
(a) In the case of an omission to frame a charge,
order that a charge be framed and that the
(2014) 11 SCC 538
Pema Tshering Lepcha @ Mikmar vs. State of Sikkim
trial be recommenced from the point
immediately after the framing of the charge;
(b) in the case of an error, omission or irregularity
in the charge, direct a new trial to be had
upon a charge framed in whatever manner it
thinks fit :
Provided that if the Court is of opinion that the facts
of the case are such that no valid charge could be preferred
against the accused in respect of the facts proved, it shall
quash the conviction."
(i) Section 465 of the Cr.P.C. provides for finding or
sentence when reversible by reason of error or omission or
irregularity.
"465. Finding or sentence when reversible by
reason of error, omission or irregularity.--(1) Subject
to the provisions hereinbefore contained, on finding,
sentence or order passed by a Court of competent
jurisdiction shall be reversed or altered by a Court of
appeal, confirmation or revision on account of any error,
omission or irregularity in the complaint, summons,
warrant, proclamation, order, judgment or other
proceedings before or during trial or in any inquiry or other
proceedings under this Code, or any error, or irregularity in
any sanction for the prosecution, unless in the opinion of
that Court, a failure of justice has in fact been occasioned
thereby.
(2) In determining whether any error, omission or
irregularity in any proceeding under this Code, or any error,
or irregularity in any sanction for the prosecution has
occasioned a failure of justice, the Court shall have regard
to the fact whether the objection could and should have
been raised at an earlier stage in the proceedings."
(ii) It follows that Section 464 of the Cr.P.C. covers every
case in which there is a departure from the rules set out in chapter
17. These departures range from errors, omissions and
irregularities in charges that are framed, to charges that might
have been framed and were not and include a total omission to
frame a charge at all at any stage of the trial.
10. In Willie (William) Slaney vs. State of Madhya Pradesh3, the
Court ruled that a mere defect in charge is no ground for setting
aside conviction. Procedural laws are designed to subserve the
ends of justice and not to frustrate them by mere technicalities.
The object of the charge is to give an accused notice of the matter
1956 AIR SC 116
Pema Tshering Lepcha @ Mikmar vs. State of Sikkim
he is charged with. If the necessary information is conveyed to
him and no prejudice is caused to him because of the charges, the
accused cannot succeed by merely showing that the charges
framed were defective. In judging a question of prejudice, as of
guilt, the Court must act with a broad vision and look to the
substance and not to technicalities and their main concern should
be to see whether the accused had a fair trial, whether he knew
what he was being tried for, whether the main facts sought to be
established against him were explained to him fairly and clearly.
11. In State of Sikkim vs. Kul Chandra Baral4, this High Court
observed that;
"6. .................The object of a charge is to warn the
accused of the case he is to answer. In other words, charge
is an accusation made against a person in respect of an
offence alleged to have been committed by him. In order to
hold that error, omission or irregularity in the charge is not
curable, the accused has to show that by such error,
omission or irregularity a failure of justice has in fact been
occasioned. Whether there is a failure of justice or not is a
question of fact. In the case at hand the respondent had
opportunity to cross-examine the witnesses and in fact he
cross-examined the PWs. ................."
12. Thus, it is evident that in order to judge whether a
failure of justice has been occasioned it will be relevant to examine
whether the accused was aware of the basic ingredients of the
offence for which he was charged and convicted and whether the
main facts sought to be established against him were explained to
him clearly and whether he got a fair chance to defend himself
[See Dalbir Singh vs. State of U.P (AIR 2004 SC 1990)].
13. Now, it would be imperative to examine the charge
framed against the Appellant and the evidence, to consider all of
the above.
(i) On 07-06-2022, the Learned Trial Court framed the
following charge;
2005 CRI. L. J. 1027
Pema Tshering Lepcha @ Mikmar vs. State of Sikkim
"CHARGES WITH TWO HEADS
I, N.G. Sherpa, Special Judge, POCSO Act, North Sikkim at
Mangan do hereby charge you Pema Tshering Lepcha @
Mikmar as follows:
1 (a) Firstly:- That you on 29.03.2022 at around 2 p.m. at
open field below the house of the Aunt of prosecutrix Ms
Pxxxxx Lxxxxx, Bxxxxxxxx, North Sikkim called her and
told that you had already shifted her cow for grazing on a
pasture and she needn't look after it. The prosecutrix then
asked you to break sugarcane for her. Accordingly, you
gave two sugarcane to her, she then took it and going back
to home, in the meantime, you caught hold up of her from
back and fondled her breast then she shouted in her
defence, as a result of which you let her free then she
came running to home.
You again came to the residence of prosecutrix where she
was alone and pouring water on to plants and flowers. You
then in the guise of teaching her how to cut flowers, lifter
her in your arms and took inside store room where you
touched her breast, kissed on her arms and neck and even
tried to pull down her trouser/pant and yourself.
Fortunately, she hit with sickle on your arms and managed
to escape from you clutches thereby committed an offence
falls under Section 9 (l) of Protection of Children from
Sexual Offences Act, 2012, punishable under Section 10 of
the said act and within the cognizance of this Court.
(b) Secondly:- That you, in the same date, month, year,
time and place for the purpose mentioned used criminal
force twice to the prosecutrix with the intent to outrage her
modesty thereby committed an offence falls under 354 of
the Indian Penal Code, 1860.
(c) And I hereby direct you to be tried by this Court on the
said charges.
Q 1. Have you understood the above charges?
Ans : Yes
Q 2. Do you plead guilty or claim trial?
Ans : No, I do not plead guilty and claimed to be tried (sic.).
Dated this the 07th day of June, 2022. ..........."
From a bare reading of the questions put to the Appellant
after the charges were explained to him reveal that he understood
the charges framed against him and the import thereof.
(ii) On 27-07-2022, an additional charge was framed by
the Learned Trial Court against the Appellant, viz.;
"ADDITIONAL CHARGE
I, Sonam Denka Wangdi, Special Judge, POCSO Act, North
Sikkim at Mangan do hereby charge you, Pema Tshering
Lepcha, s/o Dawa Chhyopen Lepcha, r/o Kalaw, Upper
Ringhim, North Sikkim as follows:
That you again on 29.03.2022 showed up at the
prosecutrix's house and started teaching her how to cut the
flowers. Thereafter, taking advantage of the victim being
alone in the house, you lifted her in your arms and took her
inside the store room and started touching her breast,
kissing her on her arms and neck and tried to pull down her
trousers as well as yours and thereby committed an offence
Pema Tshering Lepcha @ Mikmar vs. State of Sikkim
falls under Section 354B of Indian Penal Code, 1860 and
within the cognizance of this Court.
And I hereby direct you to be tried by this Court on the said
charge.
Q.No. 1. Have you understood the above charge?
Ans : Yes, I have understood the charge.
Q.No. 2. Do you plead guilty or claim trial?
Ans : I do not plead guilty and claim trial.
Dated this the 27th day of July, 2022. ..........."
Similarly, after the added charge (supra) was read over to
him, he claimed to have understood the charge. As per the order
of the Learned Trial Court, dated 27-07-2022 extracted earlier, no
prejudice was caused to the Appellant by such additional charge,
Learned Counsel for the parties were in agreement with the Court
and no objection was raised by Learned Counsel for the Appellant
nor claim made for re-cross-examination of the Prosecution
witnesses.
(iii) Reverting now to the evidence recorded by the Learned
Trial Court prior to the additional charge, it is apparent that the
Appellant had sufficient opportunity of cross-examination even on
the question of attempting to disrobe the victim as appears
hereinbelow.
(iv) PW-4 gave evidence regarding the fact of the
Prosecutrix informing her of being disrobed. Her evidence inter alia
is as follows;
"1. ................... It was on 29.03.2022, prosecutrix
informed me over phone through mobile of Pxxxxxx
Lxxxxx stating that accused molested her by
pressing breast and also tried to pull down her
trouser by pressing body. ............"
Under cross-examination the witness stated inter alia as
hereinunder;
"1. ................... It is true that I was not physically
present at home at the time of alleged incident, as
such, I cannot say whether accused actually
committed the said offence as alleged by the
prosecutrix by him or not (sic.). ............"
Pema Tshering Lepcha @ Mikmar vs. State of Sikkim
(v) The Prosecutrix was examined as PW-6 and her
statement with regard to the disrobing was as extracted
hereinbelow;
"3. ................... In the store room, Aku Mikmar tried to
remove my trouser as well as his. He kissed me all
over my body as well as my breast area. I had a
sickle in my hand and with that I hit him on the
back and ran away from there. ............"
Her cross-examination in this context was that;
"4. It is not a fact that the accused did not grope me
from the back and fondle my breast near the
sugarcane filed. It is not a fact that I did not
scream when the accused did that to me.
5. It is not a fact that there are other people also
residing near my Aunt's house apart from the house
of Aku Mikmar's grandfather.
6. It is true that I was holding the sickle (MO-I) when
Aku Mikmar lifted me and carried me to the store
room. It is not a fact that whatever I have narrated
in my examination-in-chief against the accused is
false. It is not a fact that I have made the statement
against the accused for personal monetary gain
from the accused."
14. Ordinarily when an additional charge is framed against
the accused, an opportunity of further cross-examination of
witnesses would be extended to him, provided the additional
charge introduces offences that were not included in the earlier
charge. It emanates in no uncertain terms that the Appellant was
put to notice about the charges which he was to face in the charge
framed on 07-06-2022 itself as the facts of his attempt at disrobing
the victim by use of criminal force was inserted in the charge. The
examination-in-chief of the two witnesses (supra) reveal that the
Prosecution brought out the fact of the attempt to disrobe the
Prosecutrix by the Appellant. The Appellant had sufficient
opportunity to cross-examine the witnesses on that aspect as is
seen from the evidence of the witnesses and cross-examination
thereof. No question of disrobing were put to the other Prosecution
witnesses, in such circumstances the question of cross-examination
Pema Tshering Lepcha @ Mikmar vs. State of Sikkim
would find no place. In light of the above position, it does not
behove the Appellant to claim that any prejudice was caused to
him or that any error, omission or irregularity had arisen in the
charges framed against him. It cannot be denied that the
Appellant was well aware of the charges framed against him and
the offences he was being tried for and that a fair trial was afforded
to him. The charges contained no ambiguity and were explained
to him fairly and clearly. Procedural laws are for the purpose of
subserving the ends of justice and technicalities ought not to be
obstacles to hinder the path of justice being meted out. I am
inclined to hold that the substance of the matter ought to be given
precedence. Having examined all the relevant documents, I am of
the considered opinion that no prejudice on any count was caused
to the Appellant. The conviction thereby of the Appellant cannot be
said to be unjustified. The two questions formulated by this Court
are determined accordingly.
15. In light of the above facts and circumstances, I see no
reason to interfere with the findings of the Learned Trial Court.
Consequently, the Judgment and Order on Sentence are upheld.
16. Appeal dismissed and disposed of accordingly.
17. No order as to costs.
18. Copy of this Judgment be transmitted forthwith to the
Learned Trial Court for information along with its records.
( Meenakshi Madan Rai )
Judge
24-04-2024
Approved for reporting : Yes
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