Sikkim High Court
Deepak Chettri vs State Of Sikkim on 5 July, 2024
Author: Meenakshi Madan Rai
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
Dated : 5th 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.40 of 2023
Appellant : Deepak Chettri
versus
Respondent : State of Sikkim
Application under Section 374(2) of the
Code of Criminal Procedure, 1973
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Appearance
Mr. Umesh Ranpal, Advocate (Legal Aid Counsel) for the Appellant.
Mr. Yadev Sharma, Additional Public Prosecutor for the Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. This Appeal pertains to the sexual assault of a six year
old boy child, by a twenty-seven year old man, after alluring the
minor with some edibles. The Prosecution case is that the
Appellant was working in the house of PW-5, the elder paternal
uncle of the victim PW-1, as a domestic help since two months
prior to the incident. On the relevant day, the Appellant came to
the house of PW-1, with eggs and "chips" and asked him to
accompany the Appellant to the nearby jungle. There, on the
pretext of playing some game, the Appellant inserted his genital
into the mouth of PW-1. Later, he took him home and told him not
to disclose the incident to anyone. PW-1 however told PW-6, his
uncle, who paid scant attention. Later, he told PW-2, his mother
who in turn informed his father PW-8, which led to the lodging of
Ext-2, on 05-08-2020, to the effect that on 03-08-2020, PW-1
disclosed to him that the Appellant took him to a nearby jungle and
sexually assaulted him. The Police Station registered a case
against the Appellant under Section 8 of the Protection of Children
from Sexual Offences Act, 2012 (hereinafter, the "POCSO Act"), on
the same date and endorsed it to PW-10, the Investigating Officer
(IO) for investigation, on completion of which he submitted
Charge-Sheet against the Appellant under Section 8 of the POCSO
Act.
2. Charge was framed against the Appellant under Section
363 of the Indian Penal Code, 1860 (hereinafter, the "IPC") and
Section 3(a)/4 and Section 5(l)/6 of the POCSO Act. Ten
Prosecution witness came to be examined to establish its case
beyond a reasonable doubt. The Learned Trial Court on analysing
the evidence before it observed that PW-1 identified the Appellant
as the offender, deposed of the way the incident was perpetrated
on him in his statement under Section 164 of the Code of Criminal
Procedure, 1973 (hereinafter, the "Cr.P.C.") and in his deposition
before the Court. That, he could not be said to have been tutored
and his evidence inspired the confidence of the Court. That, the
Appellant for his part failed to rebut the presumption as provided
under Section 30 of the POCSO Act. That, no explanation was
forthcoming in his response under Section 313 of the Cr.P.C.
Consequently, the Court of the Learned Special Judge (POCSO Act,
2012), at Namchi, Sikkim, in Sessions Trial (POCSO) Case No.08 of
2021, (State of Sikkim vs. Deepak Chettri), vide its Judgment, dated
28-09-2023, convicted the Appellant under Section 3(a)/4 of the
POCSO Act and sentenced him to undergo simple imprisonment for
a period of ten years, the fine imposed was half the earnings that
would accrue on his working in the prison, payable to the victim. A
default stipulation followed. He was acquitted under Section 5(l) of
the POCSO Act and Section 363 of the IPC.
3. Assailing the finding of the Learned Trial Court, Learned
Counsel for the Appellant argued that there was a delay in the
lodging of the FIR, the offence was allegedly committed on 03-08-
2020 but the FIR was lodged only on 05-08-2020, sans explanation
for the delay. That, PW-1 in his evidence stated that he told "O
dada", pusai (uncle) and his father about the incident, contrarily
PW-2 his mother stated that the victim told her about the incident.
That, PW-1 deposed that he was going for his tuition when the
incident took place, while PW-2 stated that it was when PW-1
returned from the tuition as told to her by PW-1. Neither "O dada"
nor pusai were listed as Prosecution witnesses to test the veracity
of the statements of PW-1. That, the informant of the details in
the original school admission register to prove the date of birth of
the victim was not examined. In view of the foregoing anomalies,
the Prosecution case deserves a dismissal and the Appellant an
acquittal.
4. Per contra, supporting the finding of the Learned Trial
Court, Learned Additional Public Prosecutor contended that the
evidence of PW-1 has been consistent regarding the incident. PW-
2 and PW-4 have vouched for the veracity of the crime, having
been told of it by PW-1. The evidence of these witnesses are
supported by the evidence of PW-5 another uncle of the victim and
PW-6 the third uncle of the victim who was told by PW-1 that the
Appellant had inserted his penis inside his mouth. That, the date
of birth of the victim has been duly established by furnishing the
original school admission register as also the birth certificate of the
victim. PW-9 the doctor, who examined the victim was given a
history of the offence by the victim himself. Hence, in light of the
cogent and consistent evidence, the impugned Judgment and Order
on Sentence of the Learned Trial Court brooks no interference.
5. The evidence on record has been carefully perused and
considered by us and the submissions advanced by Learned
Counsel for the parties also afforded careful consideration. The
only question that falls for consideration is whether the Learned
Trial Court was correct in arriving at its finding of conviction and
handing out the consequent sentence.
6. While considering the question of the age of the victim,
Ext-7 the birth certificate of the victim was handed over by his
father PW-8, to the Police. PW-8 did not disclose the contents of
Ext-7 but stated that his son was aged about seven years when the
incident occurred. No cross-examination was conducted to test the
veracity of the contents of Ext-7 or the evidence regarding the
victim's age, consequently the contents of the document is
accepted in its entirety and his date of birth accepted as 28-02-
2014.
7. The Learned Trial Court has correctly noted in
Paragraph 14(c) of the impugned Judgment that;
"14(c). ..............The defence could not demolish
PW 8's evidence with regard to the handing over of
the original birth certificate of PW 1 to the police,
during PW 8's cross-examination the defence also
could not disprove Exhibit 7 and Exhibit 8, and no
cross-examination on Exhibit 7 and Exhibit 8 was
conducted. As reiterated above, the defence has not
disputed the age of the victim....................."
8. The Learned Trial Court also relied on the evidence of
PW-7, who proved Exbt-3, the requisition for entries in the school
admission register for age of proof of the victim, received by him
from PW-10. PW-7 furnished Ext-5, the entry details of the date of
birth of PW-1. The Learned Trial Court in Paragraph 14(c) of its
Judgment was satisfied that the date of birth of PW-1 was 28-02-
2014. Useful reference on this aspect is made to the observation
of this Court in Sancha Hang Limboo vs. State of Sikkim1, where it was
held that a document having remained unchallenged in cross-
examination in the Trial Court cannot be challenged at the stage of
Appeal. It was elucidated as follows;
"15. Therefore, can the authenticity of the contents
of Exhibit 2 be raised now? The answer would have to
be in the negative. In this context, we may
beneficially turn to the ratio in Sham Lal alias Kuldip
vs. Sanjeev Kumar and Others [(2009) 12 SCC 454] where
the Hon'ble Supreme Court while considering whether
there was a validly executed Will in favour of the
Defendants No.1 and 2, discussed as follows;
"21. One of the documents relied upon by
the learned District Judge in coming to the
conclusion that the plaintiff is the son of the
deceased Balak Ram is Ext. P-2, the school leaving
certificate. The learned District Judge, while dealing
with this document has observed:
"On the other hand, there is a public
document in the shape of school leaving
certificate, Ext. P-2 issued by Head Master,
Government Primary School, Jabal Jamrot
recording Kuldip Chand alias Sham Lal to be
the son of Shri Balak Ram. In the said public
document as such Kuldip Chand alias Sham
Lal was recorded as son of Shri Balak Ram."
The findings of the learned District Judge holding
Ext. P-2 to be a public document and admitting the
same without formal proof cannot be questioned by
the defendants in the present appeal since no
objection was raised by them when such document
was tendered and received in evidence.
22. It has been held in Dasondha Singh v.
Zalam Singh [(1997) 1 PLR 735 (P&H)] that an objection as
to the admissibility and mode of proof of a
document must be taken at the trial before it is
received in evidence and marked as an exhibit."
[emphasis supplied]
This ratiocination would aptly apply to
the present circumstances and hence the
Appellant cannot now bring to question the
contents of Exhibit 2 before this Court, the
issue having not been raised before the
Learned Trial Court."
9. Having examined the evidence on record with regard to
the victim's age, we find no reason to differ from the Learned Trial
Court on this facet.
SLR (2018) SIKKIM 1
10. So far as the occurrence of the incident is concerned,
the minor discrepancies which do not affect the crux of the
Prosecution case are to be disregarded. This observation has been
made by the Supreme Court in Kalabhai Hamirbhai Kachhot vs. State
of Gujarat as follows;
"24. Further, in Narayan Chetanram
Chaudhary v. State of Maharashtra [(2000) 8 SCC 457 : 2000
SCC (Cri) 1546], this Court has considered the effect of the
minor contradictions in the depositions of witnesses
while appreciating the evidence in criminal trial. In
the aforesaid judgment it is held that only
contradictions in material particulars and not minor
contradictions can be a ground to discredit the
testimony of the witnesses. Relevant portion of para
42 of the judgment reads as under: (SCC p. 483)
"42. Only such omissions which
amount to contradiction in material
particulars can be used to discredit the
testimony of the witness. The omission in the
police statement by itself would not
necessarily render the testimony of witness
unreliable. When the version given by the
witness in the court is different in material
particulars from that disclosed in his earlier
statements, the case of the prosecution
becomes doubtful and not otherwise. Minor
contradictions are bound to appear in the
statements of truthful witnesses as memory
sometimes plays false and the sense of
observation differ from person to person. The
omissions in the earlier statement if found to
be of trivial details, as in the present case,
the same would not cause any dent in the
testimony of PW 2. Even if there is
contradiction of statement of a witness on
any material point, that is no ground to
reject the whole of the testimony of such
witness."."
11. The evidence of PW-1 was recorded on 07-07-2021 the
incident having occurred on 03-08-2020, which means after a
lapse of around one year. Indeed, this Court is aware that at the
relevant time the COVID-19 pandemic was surging and social
distancing was the essential norm. This appears to be the reason
for the delay in recording of the evidence of the victim. This aspect
is being highlighted for the reason that the POCSO Act provides at
Section 35 as follows;
(2021) 19 SCC 555
"35. Period for recording of evidence of
child and disposal of case.--(1) The evidence of
the child shall be recorded within a period of thirty
days of the Special Court taking cognizance of the
offence and reasons for delay, if any, shall be
recorded by the Special Court.
(2) The Special Court shall complete the trial,
as far as possible, within a period of one year from
the date of taking cognizance of the offence."
Consequently, the Learned Trial Court in its Order dated 10-
05-2021 has delineated the reasons for not having recorded the
evidence of the victim within a period of thirty days. We cannot
fault this observation.
12. Now, while addressing the question of commission of
the offence, there can be no scintilla of doubt regarding the
evidence of the victim PW-1, which has been cogent and consistent
pertaining to the incident. According to him when he was going for
tuition, en route he met the Appellant who told him that he would
buy him some sweets. He accompanied him to the shop where the
Appellant bought one egg for himself and one "kurkure" for the
victim. After walking a little above the shop, the Appellant told him
that they would play a game of sucking and thereafter he inserted
his penis into the child's mouth. He repeated the act and then
carried the child back home. PW-1 narrated the incident to his "O
dada", his uncle and his father about the incident. His evidence
has been duly corroborated by PW-4 his uncle, who vouched for
the fact that the victim had told him about the incident, PW-6
another uncle was also told of the incident by the victim and PW-8
his father. Their evidence withstood the cross-examination.
13. In such circumstances, we find that there is no reason
to doubt the veracity of the Prosecution case. The impugned
Judgment and the Order on Sentence, both are accordingly upheld.
14. Appeal dismissed and disposed of accordingly.
15. Copy of this Judgment be forwarded to the Learned
Trial Court for information along with its records.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
05-07-2024 05-07-2024
Approved for reporting : Yes
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