Sikkim High Court
Mahesh Chettri vs State Of Sikkim on 3 July, 2024
Author: Meenakshi Madan Rai
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
Dated : 3rd July, 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.07 of 2023
Appellant : Mahesh Chettri
versus
Respondent : State of Sikkim
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. Shakil Raj Karki, Additional Public Prosecutor for the
Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The Appellant herein, aged about twenty-four years,
was convicted for having raped his maternal grandmother, aged
about eighty years. The Learned Judge, Fast Track (S/W), West
Sikkim, at Gyalshing, on appreciation of the evidence of seven
witnesses furnished by the Prosecution, convicted the Appellant
under Section 376(2)(f), Section 376(2)(n) and Section 506 of the
Indian Penal Code, 1860 (hereinafter, the "IPC"), vide the
impugned Judgment, dated 28-02-2023, in Sessions Trial (Fast
Track) Case No.03 of 2022, (State of Sikkim vs. Mahesh Chettri).
For each of the offences of rape that he was convicted under, the
Appellant was sentenced to undergo rigorous imprisonment for life
and to pay a fine of ₹ 10,000/-(Rupees ten thousand) only. Under
Section 506 of the IPC he was sentenced to rigorous imprisonment
for two years and to pay a fine of ₹ 1,000/-(Rupees one thousand)
only. The sentences of imprisonment were ordered to run
concurrently and the sentences of fine bore default stipulations.
(i) The facts as they unravel are that the victim PW-2 was
living with her daughter PW-3, son-in-law PW-4 and their son the
Appellant, her grandson. On 22-04-2022, PW-3 went to visit a
relative in West Bengal leaving the victim PW-2 with the Appellant.
PW-4 being a mason worked outside his home and returned
occasionally. PW-3 returned home on 06-05-2022 after her visit
and did not find PW-2 at home. On enquiry she learned that PW-2
was living in the house of one Kamal Rai, their neighbour, she
accordingly went to fetch PW-2, who refused to return home and
revealed to PW-3 the acts of rape perpetrated on her repeatedly by
the Appellant. On 08-05-2022 PW-3, accompanied by PW-2, went
to the Police Station, where PW-2 lodged the FIR, Exbt P3. She
stated therein inter alia that the Appellant consumes substances
had previously been incarcerated and while in an inebriated
condition would chase and touch her inappropriately. When she
used to be alone, he would disrobe her, take her to his bed and
sexually assault her. He also threatened to kill her if she disclosed
such facts to anyone including her daughter (PW-3). The same
year the Appellant had already sexually assaulted her three times.
About fifteen days prior to the lodging of Exbt P3, when she was
again raped by the Appellant she left the house and stayed in the
house of Kamal Rai, hence her refusal to return home with PW-3.
The case was registered against the Appellant under Sections
376/506 of the IPC and endorsed to PW-7, the Investigating Officer
(IO), who investigated the matter and submitted Charge-Sheet
before the Court against the Appellant under Sections 376/506 of
the IPC.
(ii) Charge was framed against the Appellant under Section
376(2)(f), Section 376(2)(n) and Section 506 of the IPC. Trial
commenced after the Appellant pleaded "not guilty" to the offences
charged with. The Prosecution furnished seven witnesses to
establish its case and an opportunity was extended to the Appellant
to explain the incriminating evidence against him, under Section
313 of the Code of Criminal Procedure, 1973 (hereinafter, the
"Cr.P.C."). His response inter alia was that he was innocent. On
analysing the evidence on record the Learned Trial Court convicted
and sentenced the Appellant as already seen supra. Aggrieved,
thereof the Appellant is before this Court.
2. Learned Counsel for the Appellant while assailing the
impugned Judgment and Order on Sentence, contended that, the
victim was not eighty years old and hence the finding of the
Learned Trial Court on this aspect was perverse. That, the delay in
the lodging of Exbt P3 has not been explained by the Prosecution.
That, the evidence of the victim's daughter is not trustworthy.
That, after the alleged incident occurred at night, the victim took
shelter in the house of her immediate neighbour, who however was
not arrayed as a Prosecution witness, raising doubts about the
veracity of the allegations of PW-2, added to which her wearing
apparels were not seized, while the medical evidence indicated no
injury on her person. Besides, the Learned Trial Court failed to
obtain a psychiatric evaluation of the Appellant, considering that
the Prosecution allegation is that the Appellant is a habitual drinker
who had assaulted his father in the past and committed sexual
assault on the victim. That, the Appellant for the afore cited
reasons deserves an acquittal.
3. Resisting the arguments (supra) Learned Additional
Public Prosecutor submitted that there is no reason to disbelieve
the Prosecution case in light of the consistency in the statements of
PW-2 in Exbt P3, her Section 164 Cr.P.C. statement and the facts
duly corroborated by her daughter PW-3 and by PW-5 the person in
whose house she had stayed till PW-3 returned home.
Consequently, the impugned Judgment and Order on Sentence of
the Learned Trial Court brooks no interference.
4. To examine whether the Judgment of conviction and
Order on Sentence were correctly handed out by the Learned Trial
Court, it is essential to walk through the evidence of the
Prosecution witnesses. PW-2 before the Court unequivocally
reiterated the facts stated by her in Exbt P3. She elucidated in her
deposition that the first incident of rape occurred in the Nepali
month of Magh (January-February) of that year (2022), when she
was alone in the house. The Appellant taking advantage of the
situation, during the night forcibly removed her clothes and
committed penetrative sexual assault on her. She tried to resist
him but she being physically weak, he overpowered her. Being
ashamed of the act committed on her by her own grandson she did
not disclose the incident to anyone, apart from the threats of dire
consequences held out by him. That, the next incident took place
in the Nepali month of Chaith (March-April) of the same year, when
her daughter and son-in-law were away from home. The Appellant
again dragged her to his room, forcefully removed her clothes and
committed penetrative sexual assault on her despite her protests.
Once again she did not disclose the incident to any person being
concerned about the reputation of her family and also having been
threatened with dire consequences by the Appellant on such
disclosure. That, the third incident was in the Nepali month of
Baisakh (April-May), when her daughter and son-in-law went to
West Bengal and she was left alone with the Appellant. She
escaped on the pretext of attending nature's call after the incident
and took shelter in her neighbour's house located above her house,
where an old lady Devi was found residing. That, the next morning
she went to the house of Kamal Rai and stayed there for 16-17
days, but refused to return with her daughter who came to fetch
her and told her that the Appellant had been repeatedly
committing penetrative sexual assault on her. That, she wanted to
report the matter to the Police. Her daughter on hearing her
accompanied her to the Police Station where she lodged her
Complaint verbally. She identified Exbt P2 as her statement,
recorded by the Police as narrated by her. She was taken to the
hospital for medical examination where she informed the doctor
that she had already taken a bath after the incident. She deposed
that her statement was recorded by a male Judge during
investigation. Her cross-examination did not decimate her entire
evidence in chief. PW-3 corroborated the evidence of PW-2. PW-5
corroborated the evidence of PW-2 with regard to her having
stayed in her house for about sixteen days in the Nepali month of
Chait-Baishak that year. The Doctor, PW-6 who examined the
victim on 08-05-2022, around 05.00 p.m., testified that she had
been brought with an alleged history of sexual assault by her
eldest grandson, breast groping and vaginal penetration multiple
times by the Appellant. Exbt P1 the medical examination report of
the victim reveals inter alia that sexual assault could not be ruled
out.
5. After meticulously examining the evidence on record as
well as the impugned Judgment and Order on Sentence, we find
that the Learned Trial Court in the impugned Judgment has
carefully analysed and appreciated the evidence on record. It has
also been noted by the Learned Trial Court in Paragraph 34 as
follows;
"34. Needless to say the law is well laid down today
that if a Court finds that the testimony of a
prosecutrix inspires the confidence of the Court and is
found reliable and trustworthy, the Court can rely on
her sole testimony for convicting the accused and
need not look for corroboration of her testimony
elsewhere. In this case, apart from the victim who is
the grandmother of the accused, even the mother of
the accused herself, has come forward to report the
matter against her own son. It is thus evident that it
is under sheer compulsion being subjected to rape
repeatedly by her accused grandson that PW-2 has
mustered the courage to finally approach the police.
This is evidently due to the support of her daughter
(PW-3). Thus, both PW-2 and PW-3 have lodged the
report against their own grandson/son, which unless
it was for genuine reasons, no grandparent or mother
would have done otherwise. Thus, I am inclined to
find the testimony of PW-2 reliable."
6. The Learned Trial Court has also discussed the delay in
lodging of the FIR and observed that it has been stressed in a
plethora of cases by the Supreme Court that delay in reporting of
cases of rape and sexual assault need not necessarily be fatal to
the Prosecution case established in a case such as this, where the
Appellant is the victim's own grandson. That, it would naturally
explain the victim's reluctance to talk about the incident, leave
alone the daunting task of reporting the matter to the Police. That,
PW-2 has stated that she was too ashamed and did not tell anyone
about the incident which is absolutely understandable under the
said circumstances. The Learned Trial Court therefore found no
reason to disbelieve the victim a senior citizen, who at her age was
unlikely to make such allegation against her own grandchild unless
she was left with no option.
7. This Court having carefully perused the evidence on
record, the facts and circumstances of the case and arguments
advanced, we are of the considered opinion that the Learned Trial
Court has examined the matter meticulously and we do not see
any reason to differ from the findings of the Learned Trial Court.
8. Both the impugned Judgment and the Order on
Sentence, are accordingly upheld.
9. Appeal dismissed and disposed of accordingly.
10. Copy of this Judgment be forwarded forthwith to the
Learned Trial Court for information along with its records.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
03-07-2024 03-07-2024
Approved for reporting : Yes
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