Sikkim High Court
Lendup Lepcha vs State Of Sikkim on 17 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. 12 of 2023
Lendup Lepcha aged about 36 years,
Son of late Lhatam Lepcha,
R/o Upper Lingzay, Upper Dzongu, Sikkim.
Presently lodged at Rongyek Jail,
Gangtok, Sikkim. ..... Appellant
versus
State of Sikkim ..... Respondent
Appeal under Section 374(2) of the Code of Criminal Procedure, 1973
[Against the impugned judgment and order on sentence, both dated 19.04.2023,
passed by the Ld. Special Judge (POCSO), District Mangan, Sikkim,
in Sessions Trial (POCSO Act) Case No. 12 of 2022 in the matter of State vs. Lendup Lepcha]
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Appearance:
Mr. Jorgay Namka, Senior Advocate (Legal Aid Counsel) for the Appellant.
Mr. Thinlay Dorjee Bhutia, Additional Public Prosecutor for the Respondent.
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Date of hearing : 10th June, 2024
Date of judgment : 17th June, 2024
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JUDGMENT
Bhaskar Raj Pradhan, J.
1. The appellant has been convicted having committed the
offence of aggravated penetrative sexual assault on a child below
twelve years under section 5(m) and repeatedly under section 5(l)
Lendup Lepcha vs. State of Sikkim
under the Protection of Children from Sexual Offences Act, 2012
(POCSO Act) and sentenced to twenty years rigorous imprisonment
with fine of Rs.30,000/- (Rupees thirty thousand only) for each of
the offences. He was also convicted under sections 376AB, 375(a)
and 354B of the Indian Penal Code, 1860 (IPC). However, in view of
section 42 of the POCSO Act, the appellant was not sentenced under
sections 376AB and 375(a) IPC. The appellant was acquitted of the
offence of criminal intimidation under section 506 IPC. The period of
imprisonment was to run concurrently and the imprisonment already
undergone was to be set off. The total amount of fine recovered was
to be applied in payment of compensation to the minor survivor.
Rs.5,00,000/- (Rupees five lakhs only) was also awarded to the
minor victim out of the Victim Compensation Fund.
2. The appellant challenges the opinion of the learned Trial
Court on the ground that the prosecution had failed to establish
penetrative sexual assault. The minority of the victim successfully
established by the prosecution during the trial is not questioned.
3. Mr. Jorgay Namka, learned Senior Advocate for the
appellant, has taken this Court through the evidence led by the
prosecution and submitted that the prosecution witnesses failed to
establish that the appellant had committed aggravated sexual
assault upon the victim. He pointed out to the contradictions in the
statement of the victim recorded under section 164 of the Code of
Criminal Procedure, 1973 (Cr.P.C.) (victim‟s statement) and her
deposition in Court. He also pointed out to the variance between the
victim‟s deposition and the medical evidence. He fairly conceded
Lendup Lepcha vs. State of Sikkim
that the prosecution had been able to establish the minority of the
victim.
4. Mr. Thinlay Dorjee Bhutia, learned Additional Public
Prosecutor, submitted that the deposition of the victim is consistent
with her statements. The deposition of the victim is truthful and
cogent and the defence has not been able to demolish the same.
The victim‟s mother (PW-11) was an eye witness to the last incident
which has been proved by the prosecution. The seizure of the
victim‟s underwear (M.O.-I) nearby the house by the Investigating
Officer (PW-16) through seizure memo (exhibit-19) corroborates the
deposition of the victim‟s mother (PW-11). The victim‟s deposition is
also corroborated by the deposition of the complainant (PW-10) and
the Childline Centre Co-ordinator (PW-13).
5. The first information report (FIR) (exhibit-13) was
lodged by the Counsellor at the Childline of the district (PW-10) on
12.06.2022, stating that the victim had been sexually assaulted
seven times by the appellant at different places, i.e, paternal aunt‟s
house, paternal uncle‟s house, in a village (name redacted), their
newly constructed building and their own residence. It was also
stated that on 04.06.2022 at around 7:00 - 7:30 a.m. when the
victim was being sexually assaulted at her residence, the victim‟s
mother (PW-11) witnessed it and the appellant left home after a
couple of days. After the case was registered, charge-sheet dated
29.08.2022 was filed. The learned Special Judge framed six charges
against the appellant under section 5(l) and 5(m) of the POCSO Act,
376AB, 376(2)(n), 354B and 503 of the IPC on 24.11.2022. During
Lendup Lepcha vs. State of Sikkim
the trial, sixteen witnesses were examined by the prosecution
including the Investigating Officer (PW-16). Dr. Archana Chettri,
Clinical Psychologist (CW-1), was examined as a Court witness who
examined the appellant and gave her opinion that he was found to
have average normal intelligence. During the appellant‟s
examination under section 313 Cr.P.C., he took a stand that he did
not know anything. To a specific question regarding the incident of
04.06.2022 when the victim‟s mother (PW-11) had witnessed the
sexual assault upon the victim, he took a stand that it was not true
and that he had only pulled up his vest since it was hot. He also
denied having committed similar acts earlier.
6. The victim‟s mother (PW-11) deposed that the victim
was six years old and reading in Class I. She also identified her birth
certificate (exhibit P-6) in which her date of birth is recorded as
28.10.2022. The victim‟s father (PW-12) deposed that at the time of
the incident the victim was five years old. Additional Medical
Superintendent-II-cum-Registrar of STNM Hospital (PW-2) proved
the Live Birth Register (exhibit P-4) where her date of birth was
recorded as 28.10.2016. The then Additional Medical
Superintendent-II-cum-Registrar of STNM Hospital (PW-3) had
issued the birth certificate of the victim (exhibit-6) after verifying it
from the Live Birth Register of the year 2016. The ASHA Worker
(PW-6) who assisted the victim‟s mother at the time of the delivery
of the victim also deposed that the date of birth of the victim was
28.10.2016. The Technical Officer-cum-Medical Record Officer of
STNM Hospital (PW-7) who gave information to the Registrar, Births
Lendup Lepcha vs. State of Sikkim
and Deaths, STNM Hospital regarding the birth of the victim and was
also the informant in the Live Birth Register (exhibit P-5), collected
the birth certificate of the victim and gave it to her parents. The
teacher of the School where the victim was studying (PW-8)
deposed that the victim was studying in Class I. The Counsellor at
the Childline of the district (PW-10) witnessed the seizure of the
birth certificate of the victim (exhibit P-6) from the victim‟s mother
(PW-11). The Headmaster In-Charge of the School the victim was
studying in (PW-14), proved the Admission Register (exhibit P-21)
showing the birth date of the victim as 28.10.2016. The Co-villager
(PW-15) who helped secure the first admission of the victim in her
school and had signed in the Admission Register (exhibit P-22) as
the guardian of the victim, identified his signature on it. These
evidences clearly prove that at the time of commission of the
alleged offences the victim was a minor of barely six years age.
7. The FIR was lodged on 12.06.2022 when the
complainant (PW-10) who was a Counsellor at Child Line, received
information regarding the incident. After receipt of the information,
the complainant (PW-10), Child Line Centre Co-ordinator (PW-13)
and others went to rescue the child. On confirming that the victim
had been subjected to penetrative sexual assault from the parents,
they brought the victim and her mother and kept them at the One
Stop Centre. The next morning, the complainant (PW-10) had a
counselling session with the victim where she revealed about the
commission of the crime. This fact, as deposed by the complainant
Lendup Lepcha vs. State of Sikkim
(PW-10), has been adequately corroborated by the Child Line Centre
Co-ordinator (PW-13) and the victim‟s mother (PW-11).
8. The victim‟s mother (PW-11) was an eye witness to the
last incident. On 04.06.2022, she had sent the victim to the other
room of their house to get her shirt but when she took a long time
to return she went to check on the victim when she saw the
appellant with his pants down and his penis out. The appellant left
the house on seeing her. The victim was in the same room and was
quiet. When asked, the victim did not say anything. The victim‟s
mother (PW-11) checked the victim‟s panty and saw white
discharge/semen on the panty. She gave the victim a bath, washed
her panty and threw it. After a few days, the victim disclosed to her
that the appellant had raped her on several occasions which she had
not told her earlier. The victim‟s mother (PW-11) identified the
victim‟s underwear (M.O-I) which was seized by the Investigating
Officer (PW-16) on 13.06.2022 near the victim‟s house in the
presence of two witnesses - the Counsellor (PW-10) and Child Line
Centre Co-ordinator (PW-13). Investigating Officer (PW-16) and
Child Line Centre Co-ordinator (PW-13) confirmed the seizure. The
Investigating Officer (PW-16) deposed about sending a police team
to locate the appellant and sending WT messages to all Station
House Officers and In-Charge of Outpost to look out for the
appellant. On 14.06.2022, a police team led by ASI Santa Bir
Tamang located the appellant and apprehended him. On
15.06.2022, while they were returning the vehicle bearing
registration no. SK 03 J 0122 met with an accident in which ASI
Lendup Lepcha vs. State of Sikkim
Santa Bir Tamang, VG Ugen Lepcha and VG Lyangsong Lepcha
succumbed to their injuries while the rest of the occupants including
the Driver were evacuated to the District Hospital and thereafter to
the STNM Hospital. Mangan P.S. FIR Case No. 21(06)2022 dated
15.06.2022 was registered against the Driver of the vehicle and the
case was investigated. An intimation dated 15.06.2022 (exhibit P-
25) was sent by the Investigating Officer (PW-16) to the Special
Judge (POCSO) Court, North Sikkim, about the incident. On
11.07.2022, the appellant was formally arrested after he was
discharged from the hospital and taken into custody. These facts
have been adequately proved by the Investigating Officer (PW-16).
9. The victim (PW-1) was six years old and studying in
UKG when she deposed before the Court on 05.12.2022. She
identified the appellant in Court as „Aku Kancha‟. Inspite of her
tender age, she described the act of aggravated sexual assault in
absolute certainty. She stated that the appellant had done so in four
different occasions - once at "Matim‟s" (aunt‟s) house, once in
"Penam‟s" (uncle‟s) house and twice in her own house. She
identified her underwear (MO-I) which she described as „undu‟ that
she was wearing. She also identified her statement and the
questionnaire recorded under section 164 Cr.P.C. (exhibit P-1 and P-
2 respectively). The cross-examination by the defence yielded no
evidence to demolish the victim‟s deposition which satisfies the
ingredients of aggravated penetrative sexual assault by the
appellant. Her deposition is consistent to her statement recorded by
the learned Magistrate on 21.06.2022 under section 164 Cr.P.C.
Lendup Lepcha vs. State of Sikkim
(victim‟s statement). Her deposition is also adequately corroborated
by other prosecution witnesses.
10. The learned Senior Counsel submitted that there is a
variance in the victim‟s statement and her deposition in Court. It
was pointed out that in the victim‟s statement she had stated that
the appellant had „tried‟ inserting his penis inside the vagina
whereas in her deposition in Court she had stated that he had „put‟
his penis in her vagina. Dr. Komal Pradhan (PW-4) examined the
victim on 12.06.2022 and recorded in her medical report (exhibit P-
8) that the victim had given history of being repeatedly sexually
assaulted by the appellant at different places and recently, a few
days ago. She noticed that the victim‟s hymen was not intact and
had been ruptured suggestive of forceful penetration/insertion in the
past. She also recorded that there were no signs suggestive of
struggle/injury at the time of her examination. During cross-
examination, she admitted that hymen could tear due to many other
reasons other than sexual intercourse and that if a minor of that age
was sexually assaulted, the sensitive parts, i.e., labia majora and
labia minora, may have injuries. This aspect was highlighted by the
learned Senior Counsel to suggest that there was a variance
between the deposition of the victim and the medical evidence. Dr.
Komal Pradhan (PW-4), however, also volunteered to state that if
the sexual assault was very recent than one could very easily see
the injuries. That would explain the lack of injuries in the labia
majora and labia minora of the victim who was examined after
several days of the last incident. The victim‟s deposition is
Lendup Lepcha vs. State of Sikkim
adequately corroborated by the medical evidence. The minor
discrepancy pointed out by the learned Senior Counsel between the
victim‟s statement and her deposition can be attributed to her
tender age. We notice that the victim was examined only on
12.6.2022 after several days of the last incident while the appellant
was examined after a month on 11.07.2022. The records reveal that
the victim‟s underwear (M.O.-I) had been washed by the victim‟s
mother and thrown outside her house. The records also reveal that
the vaginal swab and vaginal wash of the victim was collected after
several days of the last incident after she had been bathed.
Similarly, the appellant‟s penile swab, penile wash, pubic hair and
nail clippings were collected after more than a month of the last
incident. In such circumstances, the chances of Dr. Prem Kumar
Sharma (PW-9) - the RFSL Expert, detecting blood, semen or any
other fluid between 18.08.2022 and 17.09.2022 and reporting it in
his RFSL Report (exhibit P-11) when he had occasion to examine the
exhibits was almost negligible. We are of the view that this failure
would not demolish the victim‟s deposition which is of sterling
quality inspite of her tender age and the corroborative medical
evidence.
11. This is a case in which the victim‟s statement is cogent
and truthful. It is also corroborated by other prosecution evidence
which leads us to believe that what she states is true. The medical
evidence supports the victim‟s deposition of aggravated penetrative
sexual assault by the appellant.
Lendup Lepcha vs. State of Sikkim
12. The conviction of the appellant by the learned Trial
Court for the offences are upheld. However, we are of the
considered view that the sentence under section 354B IPC cannot be
upheld in view of section 71 IPC and it is accordingly set aside. The
rest of the directions and the award of victim compensation are
confirmed.
13. The appeal stands disposed of accordingly. Trial Court
records be remitted forthwith.
(Bhaskar Raj Pradhan) (Meenakshi Madan Rai)
Judge Judge
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(bp)
