Sikkim High Court
Phurba Lepcha vs State Of Sikkim on 5 June, 2024
Author: Meenakshi Madan Rai
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
Dated : 5th June, 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.24 of 2023
Appellant : Phurba Lepcha
versus
Respondent : State of Sikkim
Application under Section 374(2) of the
Code of Criminal Procedure, 1973
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Appearance
Mr. Dewen Sharma Luitel, Advocate (Legal Aid Counsel) for the
Appellant.
Mr. Yadev Sharma, Additional Public Prosecutor for the State-
Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The genesis of the Prosecution case lies in Exhibit P-
8/PW-9, the FIR, lodged before the concerned Police Station, on
17-06-2021, by PW-10 the victim's father, who informed therein
that on 16-06-2021, at around 4 p.m., PW-1 the victim, his son
(aged about 9 years) had gone to play in the house of the
Appellant/convict (aged about 27 years). He returned home crying
at around 5 p.m. On his enquiry, the victim narrated that the
Appellant lured him into his house with the promise of sweets, took
him inside the room, closed the door and inserted his genital into
his mouth as well as into his anus. After a long duration, the
Appellant opened the door, upon which the victim fled home,
rushed to the wash room and thereafter informed PW-10 that his
anus was hurting. On such complaint, the Police Station registered
the FIR against the Appellant under Section 363 of the Indian Penal
Code, 1860 (hereinafter, "IPC"), read with Sections 4/6 of the
Crl.A. No.24 of 2023 : Phurba Lepcha vs. State of Sikkim 2
Protection of Children from Sexual Offences Act, 2012 (hereinafter,
"POCSO Act") and endorsed it to PW-11 for investigation. Charge-
Sheet was filed against the Appellant under Sections 363/377 of
the IPC read with Sections 4/6 of the POCSO Act, 2012 on
completion of the investigation.
(i) The Learned Special Judge (POCSO Act, 2012), East
Sikkim, at Gangtok, framed Charges against the Appellant under
Sections 5(m) and 5(l) of the POCSO Act, both punishable under
Section 6 of the same Act and under Sections 377 and 342 of the
IPC, to which the Appellant while pleading "not guilty" sought a
trial. The Prosecution set out to examine eleven witnesses to
establish its case. Thereafter, the Learned Trial Court on
examination of the Appellant under Section 313 of the Code of
Criminal Procedure, 1973, hearing the opposing arguments of the
Learned Counsel for the parties and analysing the evidence on
record, convicted the Appellant under Sections 5(m)/6 of the
POCSO Act, but acquitted him of the offence under Section 5(l) of
the POCSO Act and Section 342 IPC. It was further observed that
as the Appellant is not required to be convicted twice for the same
offence under two different legislations, therefore, he was
acquitted of the offence under Section 377 of the IPC. The convict
was sentenced to undergo rigorous imprisonment for a term of
twenty years and to pay a fine of ₹ 5,000/- (Rupees five thousand)
only, for the offence under Section 5(m) punishable under Section
6 of the POCSO Act, with a default stipulation of imprisonment,
duly setting off the period of imprisonment undergone during
investigation and trial.
2. Learned Counsel for the Appellant before this Court
contended that the Appellant was falsely implicated in the offence
Crl.A. No.24 of 2023 : Phurba Lepcha vs. State of Sikkim 3
as he had beaten the victim for having damaged the bamboo
stakes supporting the bean stalks, in his kitchen yard. That, PW-5
the Doctor who examined the victim had opined that tenderness
over the anal orifice in children can be due to various other
reasons. The impugned Judgment reveals that apart from the
evidence of the victim, the Court relied erroneously on the hearsay
evidence of PWs 2, 3 and 4. The alleged offence is said to have
occurred on 16-06-2021 and the FIR was lodged on 17-06-2021 at
around 12.11 p.m., but the delay remained unexplained. That,
Exhibit P-10/PW-10 the sketch map of the area prepared by PW-
11, indicates that, the mud house of the Appellant is situated near
the road side, rendering it an impossibility for the Appellant to have
committed such an offence, much less during the day time. It was
urged by Learned Counsel for the Appellant that there are
variations with regard to the evidence of PW-8 and PW-10 of the
events that occurred after the incident, i.e., PW-8 stated that she
immediately went to the Pakyong Thana to report the matter,
whereas PW-10 stated that the same day they went and reported
the matter to PW-7. That, PW-2 stated that he saw the mother of
the minor victim crying and he called the local Panchayat, while
PW-3 stated that he also saw PW-8 crying and suggested that she
lodge the FIR. That, the contradictory evidence furnished fails to
establish the Prosecution case beyond a reasonable doubt. That,
the age of the victim being five years at the time of offence has
also not been established by tangible proof. Hence, the Appellant
who was convicted on tenuous grounds deserves an acquittal.
3. Per contra, Learned Additional Public Prosecutor urged
that PW-10 had lodged the FIR on the basis of the narration of the
incident by PW-1, which bear no anomalies. PWs 2, 3 and 4 have
Crl.A. No.24 of 2023 : Phurba Lepcha vs. State of Sikkim 4
advised the victim's mother PW-8 to lodge the FIR which has been
proved. That above all, PW-5 has on her medical examination of
the victim found that there was tenderness in the area where the
Appellant is said to have inserted his genital. That, the impugned
Judgment and Order on Sentence passed by the Learned Trial
Court thereby ought to be upheld.
4. We have given due consideration to the submissions
put forth by Learned Counsel for the parties. The evidence on
record has been carefully examined by us.
5. Whether the Appellant committed the offence is the
question that calls for determination in the instant matter.
6. As per the victim, he often used to visit the house of
the Appellant and on the relevant day the Appellant had committed
the act of sexual assault on him as already described. The victim
went on to depose that he had witnessed the Appellant inserting
his fingers in the anus of his younger sister in their toilet a few
days before the sexual assault on him. He denied being tutored by
his mother to depose against the Appellant. PW-2 was the villager,
that PW-8 the victim's mother, ran into, after the incident occurred
who advised her to call the local Panchayat. According to PW-2,
PW-8 was crying at the relevant time. PW-3 a co-villager of PW-8
was in his shop that relevant afternoon when PW-8 narrated to him
the incident of sexual assault, upon which he suggested that she
lodge a complaint before the Police. According to PW-4, the
Panchayat of the area, PW-2 called her on her cell phone, informing
her that a baby of their village had been raped. She thereafter
spoke to PW-8 and told her to report the matter to the Police. Dr.
Roshni Tamang, PW-5 examined the Appellant on 17-06-2021 at
around 1230 hours and found that he had no injuries on his person
Crl.A. No.24 of 2023 : Phurba Lepcha vs. State of Sikkim 5
including his private parts, smegma was however absent. She also
examined PW-1 and stated as follows;
"........................ In connection with this case
I had also examined the minor victim on the same
afternoon at around 1300 hours. He disclosed before
me that the concerned accused had inserted his penis
into his(child's) mouth and anus. On his genital
examination I found tenderness around his genital
orifice. It allowed tip of the little finger. There was
however no other injury. Anal penetration as such
could not be ruled out. Exhibit 2 is the medical report
of the minor victim prepared by me. .............."
Although she admitted under cross-examination that tenderness
around the anal orifice could be due to various results, that,
however the minor had revealed to her that the Appellant had
inserted his penis into his anus and mouth. PW-8 had herself
heard her child, the victim, returning home and screaming that he
was raped, after which he rushed into the toilet saying he was
nauseous and his anus was burning. On her enquiry as to what
had happened, the victim told her that the Appellant had raped
him. That, he had inserted his penis into the victim's anus.
Shortly thereafter, the Appellant also arrived at their home and
when they confronted him, he apologised and asked to be forgiven.
Her husband PW-10 declined to exonerate him and reported the
matter at the Police Station. PW-10 supported the evidence of PW-
8 and deposed that, he reported the matter to PW-7, the husband
of PW-4 (Panchyat Member) who advised him to lodge the FIR.
PW-7 thus corroborated the evidence of PW-10. The evidence of
the Prosecution witnesses were not decimated during cross-
examination.
(i) PW-9, the Consultant Radiologist at the Government
Hospital in Gangtok conducted the Bone Age Estimation Test in
respect of the minor victim as PW-6, the Additional Medical
Superintendent-cum-Registrar, Births and Death, STNM Hospital,
Crl.A. No.24 of 2023 : Phurba Lepcha vs. State of Sikkim 6
Gangtok, had deposed that on checking their Live Birth Register
the date of birth of the victim could not be found for the year 2011.
According to PW-9, he conducted the necessary X-rays on the
minor victim and stated inter alia as follows;
".............. In connection with this case I had
conducted the bone-age estimation test in respect of
the minor victim who had been produced before me
on 28.07.2021, referred By Emergency medical
Officer on duty. This is the requisition form marked
Exhibit P-5/PW8.
I caused the necessary x-rays to be done. As
per his x-rays I noticed the following:-
(1) three carpal bones are clearly seen and two
other carpal bones are poorly seen;
(2) epiphysis around wrist, knee and elbow are not
fused;
Based on the above findings I have given my
report as the bone age of the minor is between 6 to 8
years. I accordingly prepared the report. .........."
Hence, it was established that the victim was aged about 6 to
8 years old.
7. The Learned Trial Court in the impugned Judgment was
discussed the evidence of witnesses furnished by the Prosecution
and concluded that from the discussions he had found the
Appellant had inserted his penis into the victim's mouth and anus
on 16-06-2021. Learned Trial Court also found that the victim's
age was established by the ossification test.
8. Although minor contradictions with regard to the
evidence of PW-8 and PW-10 as to which person PW-8 spoke to
and the date of lodging of FIR were sought to be highlighted by
Learned Counsel for the Appellant, in our considered view, these
inconsequential discrepancies do not dispel the credibility of the
Prosecution case and deserve to be ignored. On this facet, the
Supreme Court in Kuriya and Another vs. State of Rajasthan1 held as
follows;
(2012) 10 SCC 433
Crl.A. No.24 of 2023 : Phurba Lepcha vs. State of Sikkim 7
"30. This Court has repeatedly taken the view
that the discrepancies or improvements which do not
materially affect the case of the prosecution and are
insignificant cannot be made the basis for doubting
the case of the prosecution. The courts may not
concentrate too much on such discrepancies or
improvements. The purpose is to primarily and clearly
sift the chaff from the grain and find out the truth
from the testimony of the witnesses. Where it does
not affect the core of the prosecution case, such
discrepancy should not be attached undue
significance. The normal course of human conduct
would be that while narrating a particular incident,
there may occur minor discrepancies. Such
discrepancies may even in law render credential to
the depositions. The improvements or variations must
essentially relate to the material particulars of the
prosecution case. The alleged improvements and
variations must be shown with respect to material
particulars of the case and the occurrence. Every such
improvement, not directly related to the occurrence,
is not a ground to doubt the testimony of a witness.
The credibility of a definite circumstance of the
prosecution case cannot be weakened with reference
to such minor or insignificant improvements.
Reference in this regard can be made to the
judgments of this Court in Kathi Bharat Vajsur v.
State of Gujarat [(2012) 5 SCC 724], Narayan Chetanram
Chaudhary v. State of Maharashtra [(2000) 8 SCC 457],
Gura Singh v. State of Rajasthan [(2001) 2 SCC 205] and
Sukhchain Singh v. State of Haryana [(2002) 5 SCC 100]."
9. The argument of Learned Counsel for the Appellant
pertaining to delay in the lodging of the FIR holds no water for the
reason that the offence took place on the evening of 16-06-2021
and was reported on 17-06-2021 at around 12.11 p.m. Relevantly,
it may be stated that delay in lodging an FIR in such cases does
not vitiate the Prosecution case. The Supreme Court in State of
Himachal Pradesh vs. Prem Singh held as follows;
"6. So far as the delay in lodging the FIR is
concerned, the delay in a case of sexual assault,
cannot be equated with the case involving other
offences. There are several factors which weigh in the
mind of the prosecutrix and her family members
before coming to the police station to lodge a
complaint. In a tradition-bound society prevalent in
India, more particularly rural areas, it would be quite
unsafe to throw out the prosecution case merely on
the ground that there is some delay in lodging the
FIR. ........................"
(2009) 1 SCC 420
Crl.A. No.24 of 2023 : Phurba Lepcha vs. State of Sikkim 8
10. The argument that the incident could not have occurred
on account of the proximity of the road to the house of the
Appellant is an obnoxious argument. There is no evidence
furnished to establish that there were pedestrians on the foot path,
besides the offence took place inside a room. No investigation was
conducted to consider whether sounds or screaming from inside
the house were audible outside. The argument is therefore of no
assistance to the Appellant's case.
11. Having meticulously examined and considered the
evidence on record, we are of the considered opinion that the
Prosecution has established its case beyond all reasonable doubt
and there is no reason for us to differ from the findings of the
Learned Trial Court.
12. Consequently, the impugned Judgment is upheld as
also the Order on Sentence.
13. Appeal dismissed and disposed of accordingly.
14. No order as to costs.
15. Copy of this Judgment be forwarded to the Learned Trial
Court for information along with its records.
16. Copy of this Judgment also be forwarded to the Jail
Authority at the Central Prison, Rongyek, by e-mail for information
and necessary steps along with a soft copy to the Jail
Superintendent for making it over to the Appellant /Convict.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
05-06-2024 05-06-2024
Approved for reporting : Yes
ds
