Sikkim High Court
Tshering Thendup Bhutia vs State Of Sikkim on 3 June, 2024
Author: Bhaskar Raj Pradhan
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
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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. 13 of 2022
Tshering Thendup Bhutia,
Aged about: 24 years
Son of Shri Passang Tshering Bhutia,
Resident of Ralong, Namlung, Ravangla,
P.O. and P.S: Ravangla
Dist: Namchi, Sikkim.
Presently in Judicial Custody at
State Correction Home, Rongyek,
Gangtok, East Sikkim. ..... Appellant
versus
State of Sikkim ..... Respondent
Application under Chapter XXIX, Section 374(2) of
the Code of Criminal Procedure, 1973
[against the judgment passed by the Ld. Judge, Fast Track Court, South & West Sikkim
at Gyalshing in S.T. (Fast Track) Case No. 03 of 2021 in the matter of
State of Sikkim vs. Tshering Thendup Bhutia]
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Appearance:
Mr. Rahul Rathi and Ms Khusboo Rathi, Advocates for the Appellant.
Mr. Yadev Sharma, Additional Public Prosecutor and Mr. Sujan Sunwar,
Assistant Public Prosecutor for the Respondent.
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Date of hearing : 13th May, 2024
Date of judgment : 3rd June, 2024
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JUDGMENT
Bhaskar Raj Pradhan, J.
1. The testimony of the victim is once again sought to be
questioned on the ground that it is not reliable; there is no
corroborative evidence; the first information report (FIR) (exhibit 1)
Tshering Thendup Bhutia vs. State of Sikkim
lodged by her was after five days and there are inconsistencies in
the prosecution case and there is evidence to suggest that the
victim had lodged the false FIR to avenge the appellant not having
accepted the proposal of marrying the victim‟s sister. The learned
Judge, Fast Track Court, South and West Sikkim at Gyalshing (Ld.
Trial Judge), has examined each of these issues and found that the
sole testimony of the victim is reliable, there is corroboration from
the evidence of PW-2 (victim‟s husband), PW-3 (elder sister of the
victim), PW-4 (sister-in-law of the victim) and PW-5 (other sister of
the victim), the delay in lodging the FIR has been adequately
explained, the inconsistencies pointed out by the defence are
immaterial and the defence of false FIR an afterthought.
2. The conviction and sentence of the appellant dated
26.04.2022 under sections 341, 376(1) and 506 of the Indian Penal
Code, 1860 (IPC) is challenged in the present appeal. Charges were
framed under sections 341, 376(2)(f), 376(2)(l) and 506 IPC. Ten
witnesses including the Investigating Officer (PW-10) were
examined by the prosecution after charges were framed on
31.07.2021. The appellant‟s examination under Section 313 of the
Code of Criminal Procedure, 1973 (Cr.P.C.) was conducted on
26.03.2022, where he took a stand that the accusation was not true
and he had been implicated since he had declined to marry the
victim‟s sister.
3. The conviction of the appellant was substantially based
on the evidence of the victim which was found to be reliable and un-
impeached during cross-examination. The lack of injuries on her
Tshering Thendup Bhutia vs. State of Sikkim
body including her private part was not found fatal by the learned
Trial Judge as it was held that it was settled law that mere absence
of injuries on a victim of rape does not disprove the prosecution‟s
case, nor does it render a testimony false, if the Court is of the
opinion that her testimony inspires confidence and is found to be
reliable and trustworthy. The defence of the appellant that it was a
false case brought against him as attempt to match make the
appellant with one of the sisters was also held to be improbable.
Similarly, delay in lodging the FIR of five days was held to be
sufficiently explained by the victim who testified that she was too
ashamed and scared after the incident to tell anyone. The learned
Trial Judge was also of the opinion that the testimony of the victim
was corroborated by PW-2 (victim‟s husband), PW-3 (elder sister of
the victim), PW-4 (sister-in-law of the victim) and PW-5 (the other
sister of the victim).
4. Mr. Rahul Rathi, learned counsel for the appellant,
submitted that there was unexplained delay in lodging the FIR. He
also pointed out that although the victim has given vivid description
of how she was raped by the appellant in the cowshed on
13.04.2021, PW-9 (the Medical Officer) deposed that no struggle
marks were seen on genital examination of the victim and no
injuries were noticed on her body when she was examined on
18.04.2021. It was also submitted that this was a clear case of false
accusation as the appellant had refused to marry the victim‟s sister
which was brought out from the evidence of PW-6 (appellant‟s
sister) and PW-7 (appellant‟s mother). Some of the material
Tshering Thendup Bhutia vs. State of Sikkim
witnesses were not examined by PW-10 (the Investigating Officer).
Mr. Rathi relied upon the judgment of the Supreme Court in Santosh
Prasad @ Santosh Kumar vs. State of Bihar .
5. Mr. Yadev Sharma, learned Additional Public Prosecutor,
submitted that the victim has deposed exactly what she had stated
before the Magistrate in her statement under Section 164 Cr.P.C.;
her evidence is cogent, consistent, without any embellishment and
therefore, it is reliable. He submits that the evidence of the victim is
trustworthy and reliable and therefore can form the sole basis of
conviction. He submitted that the story of match-making was clearly
an afterthought as neither PW-6 (appellant‟s sister) nor PW-7
(appellant‟s mother) stated about it in their statement recorded
under Section 161 Cr.P.C. According to the learned Additional Public
Prosecutor, the victim has sufficiently explained the delay in lodging
the FIR.
6. We shall first deal with the grounds re-agitated by Mr.
Rahul Rathi on behalf of the appellant.
Delay in lodging the FIR
6 (i). The incident is of 13.04.2021. The FIR was lodged on
18.04.2021, after five days of the incident. The allegation was of
rape by the appellant who was not only her neighbour but also a
friend of PW-2 (victim‟s husband). The victim in her deposition has
given a detailed narration of what transpired after she was raped on
the night of 13.04.2021. According to her, she first informed PW-6
(2020) 2 SCC (Cri) 77
Tshering Thendup Bhutia vs. State of Sikkim
(appellant‟s sister) on 14.04.2021 and thereafter to PW-7
(appellant‟s mother). On 16.04.2021, the victim went to her
maternal home but could not disclose anything, however, on
17.04.2021, she informed her two sisters-in-law about it, who
advised her to inform PW-2 (victim‟s husband). On 17.04.2021, the
victim did call PW-2 (victim‟s husband) but when she learnt that the
appellant was also with him at Lingding, she did not do so as she
thought that they would get into a fight. However, on 18.04.2021,
the victim called PW-2 (victim‟s husband) early in the morning and
asked him to come to Ravangla Thana. Thereafter, the victim lodged
the FIR. The victim deposed that after raping her, the appellant
threatened her. She also deposed about the emotional trauma she
underwent after being raped by the appellant.
6 (ii). The delay in lodging the FIR by five days has been
adequately and reasonably explained by the victim in her deposition
which has been accepted by the learned Trial Judge. We have no
hesitation in upholding the view in the impugned judgment as it
stands to reason that victim of such a heinous crime may suffer
from emotional upheavals as narrated by her. The victim has also
given a detailed sequence of events of what transpired after the
rape which has been adequately corroborated by the deposition of
PW-2 (victim‟s husband), PW-4 (sister-in-law of the victim), PW-5
(other sister of the victim) and PW-6 (appellant‟s sister). We are of
the opinion that the delay of five days has been sufficiently
explained by the victim and the facts have been corroborated by the
evidence of the prosecution witnesses.
Tshering Thendup Bhutia vs. State of Sikkim
No struggle marks and injury on the victim
6 (iii). The medical evidence of PW-9 (the Medical Officer) and
the medical reports of the appellant (exhibit-6) and that of the
victim (exhibit-7) do not corroborate the prosecution allegation as
the medical examination was conducted on them only on
18.04.2021, after five days of the alleged incident.
6 (iv). The delay in the victim‟s medical examination was due
to the fact that the FIR was lodged after five days which delay has
been explained. The learned Trial Judge was of the opinion that
absence of injuries on a victim of rape does not disprove the
prosecution‟s case, nor does it render the testimony of the victim
false, if Court is of the opinion that her testimony inspires
confidence and is found reliable and trustworthy. It is, therefore,
important for us to examine the testimony of the victim. If the
victim‟s testimony is found creditworthy lack of injury on her body
when she was medically examined only after five days would not
materially affect the prosecution case.
False accusation by the victim
6 (v). The appellant in his statement under section 313 Cr.P.C,
PW-6 (appellant‟s sister), PW-7 (appellant‟s mother) and PW-8
(appellant‟s aunt), during their cross-examination, introduced the
story of the appellant rejecting the proposal to marry the victim‟s
sister. On the basis of these statements, the defence raises a plea of
false accusation by the victim to avenge the rejection.
6 (vi). The above suggestion was made to various prosecution
witnesses by the defence. While the witnesses who were related to
Tshering Thendup Bhutia vs. State of Sikkim
the victim denied the suggestion, the appellant‟s family members
and relative supported the suggestion. Both PW-6 (appellant‟s
sister) and PW-7 (appellant‟s mother) were declared hostile and
cross-examined. Their evidence is to be approached with caution.
Both PW-6 (appellant‟s sister) and PW-7 (appellant‟s mother) were
confronted with their statements recorded under section 161 Cr.P.C.
in which they had supported the prosecution case as narrated by the
victim. However, both of them denied having made such statements
to the police. It is apparent that PW-6 (appellant‟s sister) and PW-7
(appellant‟s mother) introduced the allegation that the appellant had
rejected the proposal of marrying the victim‟s sister for the first time
in Court. Although, both of them being natural witnesses were put
up by the prosecution as their witnesses, they turned hostile and did
not support their statement recorded under section 161 Cr.P.C. This
was quite apparent as both of them were closely related to the
appellant who was accused of a heinous crime. The evidence of PW-
8 (appellant‟s aunt) on this aspect is in the nature of hearsay
evidence. We are, therefore, of the view that the learned Trial Judge
has correctly appreciated their evidence and rejected the theory
sought to be propounded in defence of the appellant.
Consensual sexual intercourse
6 (vii). There is no direct suggestion made by the defence of
consensual sexual intercourse. However, some questions asked may
indicate that they had attempted to suggest so. We, therefore,
propose to deal with it. This we gather from the questions asked in
cross-examination of the victim suggesting that the appellant would
Tshering Thendup Bhutia vs. State of Sikkim
visit her when PW-2 (victim‟s husband) was away at work and that
she would not have filed the FIR if her husband had not come to
Ravangla Police Station. Firstly, we notice that the defence has not
asked any question directly about the consent. The above
suggestion made to the victim by the defence has been emphatically
denied by her. In any case, even if one was to consider the
suggestion it beats any logical reasoning as to why the victim in
such a situation would go around telling everybody about the act
when there was no eye witness to it.
Material witnesses not examined
6 (viii). The failure of the prosecution to examine the minor
children of the victim and the two ladies the victim interacted with
but to whom she did not disclose about the incident, would not in
our opinion, fatally affect the prosecution case.
Contradictions in the prosecution case
6 (ix). The learned counsel for the appellant submits that
although the victim deposed that her younger brother had prepared
the FIR which was signed by her at the Police Station, PW-3 (elder
sister of the victim) did not depose that the scribe of the FIR was
there when the FIR was lodged. We notice that the victim had
deposed that her younger brother had prepared the FIR, she signed
it and lodged the FIR. PW-2 (victim‟s husband) also corroborated
this fact. Merely because PW-3 (elder sister of the victim) did not
mention about the presence of the younger brother of the victim
does not materially affect the prosecution case, more so when the
victim when confronted about the absence of the younger brother at
Tshering Thendup Bhutia vs. State of Sikkim
the Ravangla Police Station emphatically denied the suggestion.
Further, the defence also failed to suggest to PW-3 (elder sister of
the victim) about the absence of the younger brother of the victim
at the Ravangla Police Station. In any case, we are of the opinion
that this is not a material contradiction which fatally affects the
prosecution case.
6 (x). It was also pointed out that although the victim had
stated about her disability in her deposition there was no evidence
to support it. The victim‟s disability was not an issue in the criminal
prosecution. The prosecution‟s failure to supplement the victim‟s
statement regarding her disability by other evidence does not fatally
affect the prosecution case.
Prosecution evidence
7. At this juncture, we seek to examine the prosecution
case and the evidence produced. The prosecution has sought to
establish their case through the testimonies of the victim, PW-2
(victim‟s husband), PW-3 (elder sister of the victim), PW-4 (sister-
in-law of the victim), PW-5 (the other sister of the victim), PW-6
(appellant‟s sister), PW-7 (appellant‟s mother), PW-8 (appellant‟s
aunt), PW-9 (the Medical Officer) and PW-10 (the Investigating
Officer). It is noticed that PW-2, PW-3, PW-4 and PW-5 are related
to the victim while PW-6, PW-7 and PW-8 are related to the
appellant. Considering the case of the prosecution they are all
natural witnesses who the victim had interacted with after the
incident. As they are related witnesses, either to the victim or to the
appellant, their evidence must, therefore, be viewed with caution.
Tshering Thendup Bhutia vs. State of Sikkim
Victim's deposition
8. As seen, the victim‟s evidence had played a crucial role
in the conviction of the appellant. The victim described the incident
in good detail. According to the victim, the incident happened on
13.04.2021, when she was home with her minor sons only. The
victim deposed that PW-2 (victim‟s husband) was away at work at
Lingding. The victim identified the appellant as her neighbour. The
victim deposed that at around 9:30 p.m., while she was in the
courtyard of her house filling water in the drum, someone suddenly
caught her from behind, locked her hands in the front and lifted her.
Thereafter, the appellant took the victim to the area below their
house where they stacked firewood, pushed her against the wall,
disrobed her, pulled down his pants and raped her. The victim has
described the incident vividly giving the defence a fair chance to
gauge its truthfulness and demolish it if it was untrue. The victim
deposed that she tried to resist and struggled to free herself but was
unable to do so. She also screamed but no one heard her. The
victim stated that she had told the appellant that she was on her
period but he did not care. This fact has been corroborated by PW-9
(the Medical Officer) who examined her on 18.04.2021 and recorded
in her report (Exhibit-7) that the victim at the time was
menstruating. The victim also deposed that after raping her, the
appellant pushed her and threatened her that if she told anyone
about the incident, he would not leave her alone and ran away.
9. The victim further deposed that on the next day she
called PW-6 (appellant‟s sister) and asked her to come to her house
Tshering Thendup Bhutia vs. State of Sikkim
and when she did, the victim told her about the incident. PW-6
(appellant‟s sister) refused to believe her but suggested that she tell
PW-7 (appellant‟s mother) about it. Thereafter, the victim also
informed PW-7 (appellant‟s mother) about what the appellant had
done to her. On hearing this, PW-7 (appellant‟s mother) pleaded not
to tell anyone because she believed there would be bloodshed. She
pleaded to the victim to forgive her son and forget about the
incident. As per the version of the victim, thereafter, on her return
she met two ladies but she did not disclose about the incident to any
of them. It was only on 17.04.2021, after reaching her parent‟s
house, she telephoned her two sisters-in-law and told them about it,
who advised that she should inform her husband. Thereafter, the
victim called up her husband but when she realised that the
appellant was also working at the same site where her husband was
working, compelled her not to disclose anything to her husband on
17.04.2021, as she feared they would get into a fight. Later she
learnt that her husband‟s elder sister had already informed him and
therefore, on 18.04.2021 she called her husband to come to
Ravangla Thana where she lodged the FIR.
Identification of the appellant
10. According to PW-2 (victim‟s husband), the appellant was
his co-villager with whom he had cordial relationship. In fact, PW-2
(victim‟s husband) admitted in cross-examination that he and the
appellant were friends and the appellant used to visit his house and
they would often eat and drink together. PW-4 (sister-in-law of the
victim) also identified the appellant as he was from the same village.
Tshering Thendup Bhutia vs. State of Sikkim
According to PW-6 (appellant‟s sister), the house of the victim and
their house were close to each other. PW-7 (appellant‟s mother)
stated that the victim is her neighbour. PW-8 (appellant‟s aunt)
stated that he and the victim were neighbours. The evidence led by
the prosecution does establish that the appellant and the victim
were neighbours, known to each other and shared close friendship
often visiting each other. Victim‟s identification of the appellant as
the perpetrator of the crime cannot be doubted.
Victim's deposition corroborated
11. As per the deposition of the victim, the first person she
interacted with after the incident was her elder son. However, he
was not examined. Thereafter, according to the victim, the next
morning, i.e., 14.04.2021, she contacted PW-6 (appellant‟s sister)
and narrated her story to her and then to PW-7 (appellant‟s
mother). Although, the appellant‟s sister is referred to by another
name in the victim‟s deposition, PW-6 (appellant‟s sister) admitted
to have received a call from the victim on 14.04.2021. She also
deposed that the next day, on 15.04.2021, the victim called her
again and asked her to come to her house.
12. P.W-6 (appellant‟s sister) was, however, declared
hostile. Testimony of hostile witness can be considered if
corroborated by other evidence. It is settled law that even if a
witness is treated as hostile and cross-examined, his/her statement
cannot be written off altogether but must be considered with due
care and circumspection and that part of the testimony which is
creditworthy must be considered and acted upon. PW-6 (appellant‟s
Tshering Thendup Bhutia vs. State of Sikkim
sister) admitted, when confronted with her statement recorded
under section 161 Cr.P.C., that on 14.04.2021 at around 8:30 a.m.,
the victim had telephonically called her to her house. This part of
the testimony which corroborates the statement of the victim that
she had contacted PW-6 (appellant‟s sister) on 14.04.2021 must be
considered and acted upon. It isn‟t strange that PW-6 (appellant‟s
sister) did not support the prosecution case fully as she was in fact
the appellant‟s sister who had been accused of rape.
13. PW-7 (appellant‟s mother) was also declared hostile and
did not support the prosecution case as recorded in her statement
under Section 161 Cr.P.C. Inspite of the hostility, during her cross-
examination, PW-7 (the appellant‟s mother) admitted that the victim
is an honest woman and did not lie. She also admitted that the
appellant did not tell her that the victim was match making him with
one of her elder sisters. These admission does support the
prosecution version.
14. The victim deposed about going to her maternal home
on 16.04.2021 and confiding to her two sisters-in-law telephonically
on 17.04.2021 from her parent‟s house. PW-4 was the only sister-
in-law examined by the prosecution. She corroborated the victim‟s
statement that the victim had telephonically informed about the
incident on 17.04.2021. According to PW-4 (sister-in-law of the
victim), she advised the victim to inform her husband. This fact has
been corroborated by PW-2 (victim‟s husband) who deposed that he
had received a call on 18.04.2021 asking him to come to Ravangla
Thana as she had been raped by the appellant on 13.04.2021.
Tshering Thendup Bhutia vs. State of Sikkim
15. PW-2 (victim‟s husband) deposed that in the morning of
18.04.2021, he received a call from the victim asking him to come
to Ravangla Thana and when he asked her why, she informed him
that she had been raped by the appellant on 13.04.2021. He also
deposed that at the Police Station he met the victim, her two elder
sisters and younger brother, after which she lodged the FIR. At the
Police Station, he also asked the victim why she did not report the
matter sooner and the victim told him that she had been threatened
by the appellant and was scared. The deposition of PW-2 (victim‟s
husband) corroborates the deposition of the victim that she had
called him on 18.04.2021 and asked him to come to Ravangla
Thana. The victim‟s testimony, that on 17.04.2021 she had called
her husband but when she learnt that the appellant was also with
him at Lingding she decided not to inform him that day as she
feared that PW-2 (victim‟s husband) would get into a fight with the
appellant, is also corroborated by the admission of PW-2 (victim‟s
husband) that on 16.04.2021, the appellant had gone with him to
work at the site at Lingding in the evening and returned on the
evening of 17.04.2021. He admitted that while at the site the
appellant and he worked together.
16. The victim was subjected to an extensive cross-
examination by the defence. What is apparent in the answer to the
cross-examination is her honesty. She admitted that the appellant
was her neighbour and they often used to visit each other‟s houses.
She also admitted, without any hesitation, that the appellant used to
call her „Maachi‟ (sister-in-law) and they used to sometimes tease
Tshering Thendup Bhutia vs. State of Sikkim
each other. She admitted that the appellant and PW-2 (victim‟s
husband) were good friends and the appellant used to visit her
house often and eat and drink with him. She honestly admittedly
that they had neighbours on both sides of her house and the house
of P.B. (name withheld) was near the spot where she collected
water in the drum and if one screamed, it could be heard by her
neighbours. She denied the suggestion that she had lodged the FIR
out of fear of her husband and on the insistence of her siblings and
relatives. The defence did not cross-examine the victim on the
detailed testimony of how the appellant had raped her on
13.04.2021 but simply alleged that she had lodged a false case out
of personal grudges against the appellant which the victim denied.
The victim has withstood the cross-examination by the defence and
her testimony stood the test of truthfulness.
17. The victim proved the FIR and also identified her
statement to the Magistrate under section 164 Cr.P.C. as her
statement (Exhibit-3). The defence made no attempt to deny the
contents of the statement under section 164 Cr.P.C. The learned
Trial Judge has found that the deposition of the victim is also
corroborated by her statement under section 164 Cr.P.C. We notice
that the victim has been consistent about the details of the act of
rape by the appellant from the lodging of the FIR to the recording of
her statement under section 164 Cr.P.C. by the learned Magistrate
and also in her deposition in Court. We also find that there are no
material contradiction in the victim‟s deposition which would render
it untruthful.
Tshering Thendup Bhutia vs. State of Sikkim
18. In Santosh Prasad (supra), the appellant was accused of
rape by the victim in the preceding night. The victim alleged that
after raping her he had run away, after which she had raised an
alarm and the neighbours had come including her relatives to whom
she had disclosed about the incident. After their arrival, she had
lodged the first information report at the police station. The wearing
apparels of the victim was seized and sent to FSL. Medical report of
the victim was also collected and thereafter, charge-sheet was filed.
Eight witnesses including the victim were examined. Three of them
did not support the case of the prosecution. The accused was
thereafter tried and found guilty of the offences of sections 376(1)
and 450 of the IPC. The Supreme Court found that the accused was
convicted solely upon the deposition of the victim and neither any
independent witness nor the medical evidence supported the
prosecution case. Evidence of a land dispute between the parties
had been brought on record which was admitted even by the victim
that there was enmity with the accused. The medical evidence did
not suggest any evidence which would reflect any physical or
pathological evidence of rape although it was opined that possibility
of rape could not be ruled out. The FSL report was inconclusive
leaving the sole testimony of the prosecutrix as the only evidence.
The Supreme Court examined the evidence of the victim and noted
that there were material contradictions in her deposition and the
version of the alleged incident given by her was not believable. The
Supreme Court held that the evidence of the victim in such cases
should be reliable and trustworthy. The Supreme Court examined its
previous judgment which had opined that it cannot be lost sight of
Tshering Thendup Bhutia vs. State of Sikkim
that rape causes the greatest distress and humiliation to the victim
but at the same time false allegation of rape can cause equal
distress, humiliation and damage to the accused as well and
therefore the accused must also be protected against possibility of
false implication. It opined that it must be borne in mind that the
broad principal is that an injured witness who was present at that
time when the incident happened and that ordinarily such a witness
would not lie as to the actual assailants, but there is no presumption
or any basis for assuming that the statement of such a witness is
always correct or without any embellishment or exaggeration.
19. In Phool Singh vs. State of M.P.2, which was relied upon
and referred to in the impugned judgment, the Supreme Court had
occasion to examine the law regarding conviction of accused on the
sole testimony of the prosecutrix. It was argued by the accused
therein that medical evidence did not support the case of the
prosecutrix and there were no other independent witnesses to
support the case of the prosecutrix. It was also argued that there
was delay in lodging the FIR which was lodged after three days. The
Supreme Court did not agree with his submissions made on behalf
of the accused and held that the victim had fully supported the case
of the prosecution; she had been consistent right from the very
beginning; nothing has been specifically pointed out why the sole
testimony of the prosecutrix could not be believed; even after
thorough cross-examination, she had stood by what she had stated
and therefore, there was no reason to doubt the credibility and
(2022) 2 SCC 74
Tshering Thendup Bhutia vs. State of Sikkim
trustworthiness of the prosecutrix. The Supreme Court also held
that the submission on behalf of the accused as there were no
independent witnesses, conviction based on sole testimony of the
prosecutrix cannot be sustained, had no substance. While doing so
the Supreme Court examined its previous judgments rendered in
Ganesan vs. State3; Vijay vs. State of M.P.4; State of Maharashtra
vs. Chandraprakash Kewalchand Jain5; State of U.P. vs. Pappu6;
State of Punjab vs. Gurmit Singh7; State of Orissa vs. Thakara
Besra ; State of H.P. vs. Raghubir Singh ; Krishna Kumar Malik vs.
State of Haryana10; Rai Sandeep vs. State (NCT of Delhi)11, State
(NCT of Delhi) vs. Pankaj Chaudhary12 and Sham Singh vs. State of
Haryana13. The Supreme Court, thereafter, concluded:
"11. Applying the law laid down by this Court in the
aforesaid decisions to the facts of the case on hand and as
observed hereinabove, we see no reason to doubt the
credibility and/or trustworthiness of the prosecutrix. She is
found to be reliable and trustworthy. Therefore, without any
further corroboration, the conviction of the accused relying
upon the sole testimony of the prosecutrix can be
sustained."
[Emphasis supplied]
20. While rejecting the submissions on behalf of the accused
that there was no external or internal injuries found on the body of
the prosecutrix and therefore it may be a case of consent, the
Supreme Court in Phool Singh (supra) opined that no such question
was asked, even remotely to the prosecutrix in her cross-
(2020) 10 SCC 573
(2010) 8 SCC 191
(1990) 1 SCC 550
(2005) 3 SCC 594
(1996) 2 SCC 384
(2002) 9 SCC 86
(1993) 2 SCC 622
(2011) 7 SCC 130
(2012) 8 SCC 21
(2019) 11 SCC 575
(2018) 18 SCC 34
Tshering Thendup Bhutia vs. State of Sikkim
examination. We find that in the present case the victim was not
even suggested that the act was a consensual one.
21. It may be relevant to extract the opinion of the Supreme
Court rendered in Chandraprakash Kewalchand Jain (supra) for
better clarity of how a solitary statement of a victim is to be
considered as we notice that the question frequently falls for
consideration before our courts.
"16. A prosecutrix of a sex offence cannot be put on a par with
an accomplice. She is in fact a victim of the crime. The Evidence Act
nowhere says that her evidence cannot be accepted unless it is
corroborated in material particulars. She is undoubtedly a
competent witness under Section 118 and her evidence must
receive the same weight as is attached to an injured in cases of
physical violence. The same degree of care and caution must attach
in the evaluation of her evidence as in the case of an injured
complainant or witness and no more. What is necessary is that the
court must be alive to and conscious of the fact that it is dealing
with the evidence of a person who is interested in the outcome of
the charge levelled by her. If the court keeps this in mind and feels
satisfied that it can act on the evidence of the prosecutrix, there is
no rule of law or practice incorporated in the Evidence Act similar to
Illustration (b) to Section 114 which requires it to look for
corroboration. If for some reason the court is hesitant to place
implicit reliance on the testimony of the prosecutrix it may look for
evidence which may lend assurance to her testimony short of
corroboration required in the case of an accomplice. The nature of
evidence required to lend assurance to the testimony of the
prosecutrix must necessarily depend on the facts and circumstances
of each case. But if a prosecutrix is an adult and of full
understanding the court is entitled to base a conviction on her
evidence unless the same is shown to be infirm and not trustworthy.
If the totality of the circumstances appearing on the record of the
case disclose that the prosecutrix does not have a strong motive to
falsely involve the person charged, the court should ordinarily have
no hesitation in accepting her evidence."
22. We are, therefore, of the opinion that the sole testimony
of the victim inspires confidence and does not suffer from any basic
infirmity. The probability factor also does not render it unworthy of
credence. We are alive to the fact that in a case of rape, no self
respecting woman would come forward in a Court just to make a
humiliating statement against her honour to avenge, as was alleged
by the defence, the rejection of the match of one of her sisters with
Tshering Thendup Bhutia vs. State of Sikkim
the appellant. We are equally aware of the great responsibility cast
upon us in examining the evidence relating to the offence of rape
charged upon the appellant. We have examined the broader
probabilities of the case and not got swayed by minor contradictions
which are not of a fatal nature. Although, the testimony of the
victim in the facts of the case is reliable and trustworthy requiring
no further corroboration, we find that the victim had in fact, on the
next day of the incident, approached PW-6 (appellant‟s sister) and
thereafter PW-2 (victim‟s husband), PW-3 (elder sister of the
victim), PW-4 (sister-in-law of the victim) and PW-5 (the other
sister of the victim) who were natural witnesses, who the victim
would have approached in the situation that she was in. The
testimonies of PW-2 (victim‟s husband), PW-3 (elder sister of the
victim), PW-4 (sister-in-law of the victim) and PW-5 (the other
sister of the victim), are found reliable and trustworthy. Mere lack of
injuries on the victim‟s body who was examined after five days of
the incident, would not be fatal to the prosecution case when the
victim‟s testimony is found reliable.
23. The ingredients of rape as defined in section 375 and
made punishable under section 376(1) IPC have been satisfied. The
ingredients of criminal intimidation under section 506 IPC have also
been sufficiently made out. However, in view of section 220(5)
Cr.P.C., section 71 of the IPC, it is clear that the act of criminal
intimidation was committed in the course of the same transaction as
the act of rape and therefore, the appellant cannot be punished
under section 506 IPC.
Tshering Thendup Bhutia vs. State of Sikkim
24. We find that the learned Trial Judge has sentenced the
appellant to the minimum sentence prescribed under section 376(1)
IPC for commission of rape. We, therefore, uphold the impugned
judgment and sentence rendered by the learned Trial Judge under
section 376(1). We, however, set aside the sentence under section
506 IPC. Compensation as awarded is also upheld.
25. The impugned sentence is modified to the above extent.
Appeal stands disposed of accordingly. Lower Court records be
transmitted forthwith.
(Bhaskar Raj Pradhan) (Meenakshi Madan Rai)
Judge Judge
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