Sikkim High Court
Ramesh Rai vs State Of Sikkim on 14 August, 2024
Author: Meenakshi Madan Rai
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
Dated : 14th August, 2024
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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.18 of 2023
Appellant : Ramesh Rai
versus
Respondent : State of Sikkim
An application under Section 374(2) of the
Code of Criminal Procedure, 1973
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Appearance
Mr. D. K. Siwakoti, Advocate (Legal Aid Counsel) for the Appellant.
Mr. S. K. Chettri, Additional Public Prosecutor for the Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. Once again the prospect of determining an Appeal
where the allegation is of an adult having sexually assaulted a
minor girl child, aged about twelve years, stares us in the face,
leading us to mull over moral turpitude and moral decadence in our
society.
2. On 22-04-2020, the concerned Childline, through a
source, received information that a child (PW-1) had been sexually
assaulted by her stepfather. The team member of the Childline
(PW-9) went to the area for verification and found that the minor
child had been sexually assaulted by the Appellant. During
counselling, the victim PW-1, revealed that the Appellant had been
sexually assaulting her since a year ago but the incidents remained
undisclosed by her, to her family members, due to fear of dire
reprisal held out by the Appellant to the victim, should she reveal
the acts perpetrated on her by him. On the night of 21-04-2020,
when the child complained of sudden pain and began to cry, her
mother PW-3, enquired of her as to the reason for her crying,
whereby she narrated the ordeal of her being subjected to sexual
assault by the Appellant, her stepfather since a year back.
Consequently, Exbt P-4/PW-9 the FIR, came to be lodged by PW-9
at the concerned Police Station. Investigation was endorsed to
PW-13 the Investigating Officer (IO), after the registration of the
FIR on the same day, under Section 376 of the Indian Penal Code,
1860 (hereinafter, the "IPC"), read with Section 6 of the Protection
of Children from Sexual Offences Act, 2012 (hereinafter, the
"POCSO Act"), against the Appellant. On completion of the
investigation, Charge-Sheet was submitted against the Appellant
under Section 376 of the IPC read with Section 6 of the POCSO Act
by the IO, who on his investigation found that the Appellant had
been sexually assaulting the minor as alleged. The facts as stated
in Exbt P-4/PW-9 is the crux of the Prosecution case. The
Appellant at the time of the incident was around 45 years of age.
(i) The Court of the Learned Special Judge, POCSO Act,
Gangtok, Sikkim, on finding a prima facie case against the
Appellant, framed Charge against him under Section 5(m) and
Section 5(n), both Sections punishable under Section 6 of the
POCSO Act and under Section 376(2)(n), Section 376(2)(f) and
Section 376(3) of the IPC. The Appellant having understood the
Charges framed against him entered a plea of "not guilty".
Accordingly, trial commenced. The Prosecution examined thirteen
witnesses to establish its case. On closure of the Prosecution
evidence, the incriminating evidence appearing against the
Appellant was put to him under Section 313 of the Code of Criminal
Procedure, 1973 (hereinafter, the "Cr.P.C."). He claimed innocence
and asserted that the evidence against him was untrue.
Thereafter, the final arguments of the parties were heard and vide
Judgment dated 05-07-2023, in Sessions Trial (POCSO) Case No.21
of 2020 (State of Sikkim vs. Ramesh Rai), the Learned Trial Court
convicted the Appellant of the offences under Section 5(m) and
Section 5(n) punishable under Section 6 of the POCSO Act and
under Section 376(2)(n), Section 376(2)(f) and Section 376(3) of
the IPC. The sentences meted to the Appellant on 10-07-2023
were;
(a) Rigorous imprisonment for a period of twenty years and fine of ₹
5,000/- (Rupees five thousand) only, for each of the offences
under Section 5(m) and Section 5(n), both punishable under
Section 6 of the POCSO Act. Both the sentences of fine bore
default stipulations.
(b) The sentences of imprisonment imposed were ordered to run
concurrently setting off the period already undergone by the
Appellant during the investigation and trial.
(c) The Learned Trial Court further observed that as the punishment
prescribed under Sections 376(2)(n), 376(2)(f) and 376(3) of the
IPC are covered by the aforementioned provisions of the POCSO
Act, the Appellant was not to be penalised twice for the same
offences, under two different legislations.
(d) A sum of ₹ 4,00,000/- (Rupees four lakhs) only, was
recommended to be awarded to the victim as compensation.
3. Learned Counsel for the Appellant advanced the
contention that in the first instance the Charge under Section 5(m)
of the POCSO Act would not sustain against the Appellant as the
Prosecution evidence itself had established that she was aged
about 14 to 15.5 years at the time of the alleged incident. That,
PW-6 Consultant Radiologist-cum-Head of Department, Radiology
Department, vouched for the same, which was duly considered by
the Trial Court. Hence, the Charge and conviction handed out by
the Trial Court under Section 5(m) of the POCSO Act is erroneous.
That, as far as the offence under Section 5(n) of the POCSO Act is
concerned, it was conceded that the Appellant is the stepfather of
the child, having been married to her mother, however it was
asserted that there was no Prosecution evidence to prove that
"penetrative" sexual assault had been perpetrated, by the
Appellant, on the victim. Such allegation was not made in Exbt P-
4/PW-9 nor did the medical examination of the victim Exbt P-3/PW-
8 allude to such a circumstance. Besides, admittedly the parents
and the victim shared a single bedroom where such acts would
have been an impossibility. Hence, the offence of penetrative
sexual assault not having been proved, the Trial Court was in error
in having convicted the Appellant under Section 5(n) of the POCSO
Act. Learned Counsel for the Appellant however fairly conceded
that sexual assault perpetrated on PW-1 by the Appellant could not
be ruled out.
4. Learned Additional Public Prosecutor, while relying on
the evidence of PWs 1, 3, 9 and 10 contended that penetrative
sexual assault had been established by the evidence of these
witnesses, more especially PW-10, who was an eye-witness to one
such incident. That, the Learned Trial Court having correctly
concluded that the Appellant had committed the offences under
Sections 5(m) and 5(n) of the POCSO Act, the Judgment and Order
on Sentence of the Learned Trial Court be upheld.
5. After carefully considering the submissions advanced, it
is apparent that the FIR Exbt P-4/PW-9, dated 22-04-2020, the
contents of which have already been set forth hereinabove, was
lodged by PW-9 at the concerned Police Station, making allegations
against the Appellant.
6. It would be essential to consider whether the Learned
Trial Court had correctly framed Charge against the Appellant
under Section 5(m) of the POCSO Act which reads as follows;
"5. Aggravated penetrative sexual assault.─
.......................................................................
(m) whoever commits penetrative sexual
assault on a child below twelve years; or"
[emphasis supplied]
(i) In this context, at Paragraphs 21 and 22 of the
impugned Judgment it was observed that;
"21. According to the victim's mother, the victim
was born on 01.02.2007 which means that she was
13 years old at the time of the incident. However,
there is no documentary proof and the victim's
mother does not have her birth certificate. Therefore,
to determine her age, the prosecution has relied on
the victim's ossification test report (Exhibit-1) which
was prepared by PW-6. According to the Radiologist
(PW-6), the bone-age of the victim was between 14
to 15.5 years as on 24.04.2020."
22. Applying the margin of error principle of two
years on either side (see Jaya Mala v. Home
Secretary, Government of J&K and Others, (1982) 2
SCC 538), the victim's age as on 24.04.2020 could be
held to be 17.5 years. Since the incidents were
continuing ones, her age during the said period could
be safely considered to be between 16.5 to 17.5
years. Therefore, the question whether the victim is
a child within the meaning of Section 2(d) of the
POCSO Act, 2012 is answered in affirmative."
[emphasis supplied]
(ii) The Learned Trial Court therefore was of the view that
the age of the victim at the time of the commission of the offences
which it opined were continuing offences, was between 16.5 to
17.5 years and therefore she was a child below the age of eighteen
years. However, the Trial Court lost sight of the fact that the
requisite ingredient for an offence under Section 5(m) of the
POCSO Act is that the victim child is to be below twelve years of
age. Consideration of the observations (supra) made by the Trial
Court thus reveals that it failed to determine as to whether the
victim was below twelve years at the time of the incident. Section
5(m) of the POCSO Act specifically deals with "aggravated
penetrative sexual assault on a child below twelve years". In this
context, the evidence establishes that the last offence took place
sometime around 22-04-2020. The bone age of the victim was
assessed on 24-04-2020, to be 14 to 15.5 years by PW-6, the
Consultant Radiologist-cum-Head of Department of Radiology at
the concerned Government hospital. This Court while applying the
"margin of error" principle as also employed by the Trial Court and
while extending the benefit of two years to the victim on the lower
side, it falls to reason that the victim would have been aged
anywhere between 12 to 13.5 in 2018, when the offences allegedly
commenced, as established by her undecimated testimony. What
emerges with clarity, based on the ossification test is that she "was
not below twelve years of age" at the time of the offence.
Nevertheless the Charge framed under Section 5(m) surely cannot
be said to be erroneous, as at the stage of framing of Charge the
Court would consider the prima facie materials placed before it and
would not be seised of the entire evidence. It is only subsequently
that the Court would have to reach a finding about the age of the
victim, based on the Prosecution evidence or otherwise furnished
before it. In these circumstances, we are of the considered view
that on conclusion of trial the conviction under Section 5(m) of the
POCSO Act was indeed erroneous in light of the foregoing
discussions.
(iii) Now, with regard to Section 5(n) of the POCSO Act,
admittedly the Appellant is the stepfather of PW-1. The question
whether he had committed penetrative sexual assault on the victim
is the moot question which the Prosecution was to establish by
evidence. The Learned Trial Court based on the evidence of PW-1
and PW-10, concluded that the Appellant had committed
penetrative sexual assault on the victim. PW-1 in her deposition
has stated that the Appellant used to put his penis in her vagina
from the year 2018 and that he did so on several occasions and
mostly during the night when her mother would be asleep. Under
cross-examination, it was her admission that the FIR nowhere
states that she was subjected to "penetrative sexual assault" by
the Appellant. The evidence of PW-3 (the victim's mother) relied
on by the Prosecution, lends no succour to the case of penetrative
sexual assault. PW-3 was categorical in her statement that one
night while they were asleep she heard PW-1 screaming and woke
up. She saw that the Appellant was already awake. When she
asked the Appellant what had happened, he told her that he had
woken up to attend nature's call. As per PW-3, the next morning
PW-1 told her elder sister PW-4, that during the night the Appellant
used to come to her bed that she shared with PW-4. Pertinently it
may be clarified here that, it is in the evidence of PW-1 that PW-4
her sister, lived elsewhere, and visited home occasionally, during
which time she shared the bed of PW-1. It is the further statement
of PW-3 that though she enquired from PW-1 she did not tell her
about any untoward acts having been perpetrated on her by the
Appellant. In fact, the cross-examination of PW-3 reveals that she
did not see the Appellant sexually assaulting the minor victim nor
did the victim tell her about the alleged incidents of sexual assault
committed on her by the Appellant. Concededly, PW-3 came to
learn of it from their house owner, hence the evidence of PW-3
lends no strength whatsoever to the Prosecution case. According
to PW-4 (the victim's elder sister) she witnessed the Appellant and
her mother involved in an altercation the night after the incident
and her mother enquiring from PW-1 as to what had transpired the
previous night. PW-4 heard PW-1 tell PW-3 that the Appellant had
"put his hand on her body during the previous night". No light was
shed by this witness (PW-4) on the aspect of penetrative sexual
assault. PW-9 in her evidence stated that during the time when
she counselled PW-1, she was told that the Appellant had subjected
her to penetrative sexual assault several times. PW-10 said to be
the eye-witness stated that when she was residing at the house of
the victim and cleaning the windows of her house, she saw PW-1
and the Appellant in the other room from the ventilator. The said
room being adjacent to her house. She saw the Appellant holding
PW-1 by her waist. He had locked her legs by his own legs and
they were lying in on a bed. She saw the Appellant touching the
breasts of PW-1. On seeing PW-10 the Appellant let go of PW-1,
from his clutches where upon PW-1 went running to PW-10 and
cried. Later, she met PW-4 and told her about the incident. PW-4
then enquired from the victim as to what had transpired. PW-1
disclosed to them that the Appellant was "trying" to have sexual
intercourse with her and that he had raped her and had sexual
intercourse with her in the past at the house where they had
earlier resided and that she could do nothing about it.
(iv) Despite the claims of penetrative sexual assault made
by PW-1 and of PW-9 the team member of the Childline stating
that PW-1 had told her of the penetrative assault perpetrated on
her by the Appellant, the evidence of PW-8 the doctor, does not
indicate the commission of penetrative sexual assault on PW-1 at
any point of time. The Prosecution has failed to extract any
evidence of penetrative sexual assault from this witness. Exbt P-
3/PW-8 is the report prepared by PW-8 which inter alia reads as
follows;
".......................................................................
Forwarded by Sadar P.S. Escorted by Devi
Maya Darnal.
Identification mark - Seen on ® hand - dorsal aspect
- bare of thumb.
History as per victim ─ She states that she has
been sexually assaulted by her step father since one
year over different occasions.
The last sexual assault happened on 21/4/2020
at 3 am at their current resident.
As per the victim there was no penetration
intercourse during the last encounter. (21/4/2020)
O/E ─ Pt was oriented to TPP
BP ─ 120/80 mmtly L/E ─ Pubic hair ⨁, non matted
PR ─ 96/min ─ Secondary sexual
character well developed.
S/E ─ Rs
Cw NAD ─ Vagina has no signs of
PA inflammation no cut/
CNS laceration seen.
─ Pt is clinically fit and of
sound mind.
.............................................." [emphasis supplied]
(v) PW-10 witnessed the incident from afar, in view of
which we are not inclined to rely on her evidence so far as
penetrative sexual assault is considered. The improbability of the
offence of penetrative sexual assault having occurred is augmented
by the evidence of PW-1 who deposed that such incidents took
place during the night when her mother would be asleep and that
they all resided in one rented room. It is also imperative to notice
that she has not given details of the number of incidents and
places where it was perpetrated.
7. Consequently, considering the entire evidence on
record holistically, we have reached a finding that the Prosecution
has failed to establish the offence of aggravated penetrative sexual
assault, on the child, PW-1 by the Appellant, her stepfather as
required under Section 5(n) of the POCSO Act.
8. That having been said, it is essential to emphasise that
the fact of "sexual assault" per se by the Appellant, on the victim,
has been established. The evidence as discussed above, especially
of PW-1 and PW-10 on this aspect is clinching, thus we find that
the Appellant committed the offence under Section 9(n) of the
POCSO Act which reads as follows;
"9. Aggravated sexual assault.─ ....................
.......................................................................
(n) whoever, being a relative of the child
through blood or adoption or marriage or
guardianship or in foster care, or having domestic
relationship with a parent of the child, or who is living
in the same or shared household with the child,
commits sexual assault on such child; or"
9. Invoking the provisions of Section 222(2) of the Cr.P.C.,
the Appellant is accordingly;
(a) convicted of the offence under Section 9(n) punishable
under Section 10 of the POCSO Act.
(b) He is acquitted of the offence under Section 5(m) and
Section 5(n) punishable under Section 6 of the POCSO
Act and, Section 376(2)(n), Section 376(2)(f) and
Section 376(3) of the IPC.
10. The Judgment of the Learned Trial Court is modified to
the above extent.
11. Appeal is partly allowed.
12. As the Appellant vide the impugned Judgment and
Order on Sentence was convicted and sentenced for a higher
offence and considering that the proviso to Section 386(e) of the
Cr.P.C. requires that the Appellant be put to notice only when the
sentence is to be enhanced, the sentence for an offence under
Section 9(n) punishable under Section 10 of the POCSO Act being
lesser than that meted out under Section 5(m) and Section 5(n) of
the POCSO Act, we impose the following sentence on the
Appellant;
(i) The Appellant is sentenced to undergo simple imprisonment
for five years and to pay a fine of ₹ 2,000/- (Rupees two
thousand) only, under Section 9(n) punishable under Section
10 of the POCSO Act. In default of payment of fine, to
undergo simple imprisonment of one month. The period of
imprisonment imposed on him today is set off against the
period of imprisonment already undergone by him during
investigation, as under-trial prisoner and on his conviction by
the impugned Judgment and Order on Sentence.
13. Appeal disposed of accordingly.
14. Copy of this Order be forwarded to the Learned Trial
Court for information along with its records.
15. A copy of this Order also be made over to the
Appellant/Convict through the Jail Superintendent, Central Prison,
Rongyek and to the Jail Authority at the Central Prison, Rongyek,
for information and appropriate steps.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
14-08-2024 14-08-2024
Approved for reporting : Yes
ds/sdl
