Sikkim High Court
State Of Sikkim vs Pema Wangchuk Lepcha on 1 May, 2024
Author: Meenakshi Madan Rai
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
DATED : 1st May, 2024
------------------------------------------------------------------------------------------------------
DIVISION BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
------------------------------------------------------------------------------------------------------
Crl.A. No.09 of 2022
Appellant : State of Sikkim
versus
Respondent : Pema Wangchuk Lepcha
Application under Section 378(1)(b) of the
Code of Criminal Procedure, 1973
----------------------------------------------------------------------------------------
Appearance
Mr. Yadev Sharma, Additional Public Prosecutor with Mr. Sujan
Sunwar and Mr. Shakil Raj Karki, Assistant Public Prosecutor for
the Appellant.
Mr. Tshewang Namgyal Bhutia, Advocate (Legal Aid Counsel) for
the Respondent.
----------------------------------------------------------------------------------------
JUDGMENT
Meenakshi Madan Rai, J.
1. The facts of the case leading to the instant Appeal are
that the First Information Report (FIR), Exhibit 4, was lodged by
PW-2, the Principal of the school where the victim was studying at
the relevant time. It was reported in Exhibit 4 that, on observing
PW-1, the victim, a student in the school, she appeared to be in
physical discomfort. Accordingly, on the pretext of a medical
examination she was taken to the Primary Health Centre (PHC) and
made to undergo her urine examination, which tested positive for
pregnancy. PW-1 told PW-2 that, on the evening of 15-08-2019
when she was returning home, the Accused/Respondent had
physical relations with her in a nearby jungle at around 05.00 p.m.
Based on Exhibit 4, a case under Section 376 of the Indian Penal
Code, 1860 (hereinafter, the "IPC") read with Section 6 of the
Protection of Children from Sexual Offences Act, 2012 (hereinafter,
State of Sikkim vs. Pema Wangchuk Lepcha
the "POCSO Act") was registered against the Respondent by the
concerned Police Station and taken up for investigation. Finding
sufficient prima facie materials against the Respondent, Charge-
Sheet was submitted against him under Section 376 of the IPC,
read with Section 6 of the POCSO Act. A supplementary Charge-
Sheet was undertaken to be filed pursuant to a DNA test being
conducted on the birth of the child which later came to be filed on
26-12-2020.
(i) On receipt of Charge-Sheet, the Learned Trial Court
framed Charge against the Appellant under Sections 5(j)(ii) and
5(l) of the POCSO Act, punishable under Section 6 of the same Act
and under Section 375 of the IPC, punishable under Section 376 of
the IPC. On the Appellant entering a plea of "not guilty" he was
tried for the offences charged with. During the trial, the
Prosecution examined twenty-two witnesses including the
Investigating Officer (I.O.) of the case. The accused was afforded
an opportunity to explain the incriminating evidence against him,
by his examination under Section 313 of the Code of Criminal
Procedure, 1973 and his responses recorded. On consideration of
the entire evidence before it, the impugned Judgment in Sessions
Trial Case No.04 of 2020 (State of Sikkim vs. Pema Wangchuk
Lepcha), dated 16-03-2021, was pronounced acquitting the
Respondent of the charges framed against him.
2. The Prosecution case, shorn of irrelevant details is that,
the mother of PW-1 having re-married, left for Nepal in January,
2020, leaving PW-1, allegedly 15 years at the time, in the care of
her aunt, PW-9. From 03-03-2020 PW-1 attended school. On 05-
03-2020 the physical appearance of PW-1 aroused the suspicion of
State of Sikkim vs. Pema Wangchuk Lepcha
the teachers in the school. On the pretext of administering HPV
Vaccine to her, she was taken to the PHC, where on conducting her
urine test, she was found to be pregnant. Investigation revealed
that, on 15-08-2019 at around 1500 hours the victim while
returning home from school after attending the Independence Day
function was waiting for a taxi. The taxi driven by the Respondent
arrived at the spot where PW-1 was waiting. She boarded it along
with PW-11 her friend, PW-6, his wife and daughter. All the other
passengers alighted at their destinations before her. En route to her
destination, the Respondent took PW-1 to a cave, below the road
and sexually assaulted her. Charge-Sheet came to be filed against
the Appellant for rape and aggravated penetrative sexual assault.
On completion of trial, the Learned Trial Court pronounced the
impugned Judgment.
3. Aggrieved with such acquittal the State-Appellant is
before this Court urging that the clinching evidence of PW-1, leads
to the irresistible conclusion that the Respondent had sexually
assaulted the victim. Learned Additional Public Prosecutor
contended that the victim had deposed that the Respondent had
forcibly subjected her to the sexual act on 15-08-2019 which
resulted in her pregnancy as revealed by her medical examination.
The Respondent again in December, 2019, took her in his vehicle to
a PMGSY road, parked the vehicle and committed penetrative
sexual assault on her. The evidence of the victim stood
undecimated in cross-examination. That, the evidence of a victim
of sexual assault, stands at par with the evidence of an injured
witness. Reliance on this aspect was placed on Mohd. Imran Khan
State of Sikkim vs. Pema Wangchuk Lepcha
vs. State Government (Govt. of NCT of Delhi) 1 and State of Punjab vs.
Gurmit Singh and Others2. It was further argued that the Prosecution
had established that the victim was a minor at the time of offence
as proved by Exhibit 1 her Birth Certificate and the well-settled
principle of law is that the consent of a minor is no consent. The
argument of the Respondent before the Learned Trial Court that he
was falsely implicated as medical evidence does not substantiate
the Prosecution case is of no avail as the testimony of the victim is
reliable and unwavering. Strength was drawn from the decisions in
B.C. Deva vs. State of Karnataka and Sudhansu Sekhar Sahoo vs.
State of Orissa4. That, the Learned Trial Court in the teeth of the
evidence of PW-1, erred in acquitting the Respondent by ignoring
the settled position of law that, the testimony of the victim in case
of sexual offences is vital requiring no corroboration if it is found
credible and the Court should act on the sole testimony of such
victim, to convict the Respondent. Hence, the impugned Judgment
be set aside and the Respondent be convicted of the charges
framed against him.
4. Per contra, repelling the arguments put forth by
Learned Additional Public Prosecutor for the State-Appellant, it was
submitted by Learned Counsel for the Respondent that, the
evidence of the victim is unreliable as the evidence of the other
Prosecution witnesses are contrary to her evidence. According to
PW-1 when she boarded the taxi she was alone in it with the
Respondent, whereas PW-6 has deposed that on the relevant day
his wife had reserved the Respondent‟s taxi, to drop him his wife
(2011) 10 SCC 192
(1996) 2 SCC 384
(2007) 10 SCC 743
(2002) 10 SCC 743
State of Sikkim vs. Pema Wangchuk Lepcha
and daughter from the PHC, to their destination. As he was
intoxicated at the relevant time he was not able to recollect the
names of other passengers but he learnt later that the Respondent
was arrested by the Police for impregnating the victim. PW-11, a
student in the same school as PW-1 was also returning home on
the same day after attending her school programme and she also
boarded the same taxi with PW-1. Her evidence supported the
evidence of PW-6. Their evidence is contrary to the evidence of
PW-1.
(i) In the next leg of his argument, it was urged that the
victim was unaware of her date of birth neither was her mother
PW-5 able to vouchsafe for it. PW-5 claimed that Exhibit 1 is the
birth certificate of the victim but her deposition is clearly untrue as
she has admitted that the name of the mother in Exhibit 1 has
been wrongly mentioned. That, in Exhibit 6, the school admission
register, the date of admission of PW-1 to the school is "15-02-
2011" and her date of birth is recorded as "21-03-2004", whereas
in Exhibit 1, her date of birth is recorded as "22-03-2004". Thus,
the disparity in the dates recorded in the above documents apart
from the interpolation in Exhibit 1, lends suspicion to the
Prosecution case. That, the records of the first school that PW-1
attended was not furnished by the Prosecution. It was next
canvassed that the results of the DNA profiling indicate that the
DNA profile of the new born baby of the victim did not match with
the DNA profile of the Respondent. This has been established by
Exhibit 23, the DNA profiling evidence for establishing paternity,
which was duly identified by PW-22, the DNA examiner furnished
by the Prosecution as its witness. The scientific evidence
State of Sikkim vs. Pema Wangchuk Lepcha
establishes the non-involvement of the Respondent in the offence.
Hence, the impugned Judgment of the Learned Trial Court warrants
no interference.
5. This Court is now to determine "Whether the Learned
Trial Court was in error in acquitting the Respondent of the offences
that he was charged with?"
6. The Learned Trial Court formulated two points for
determination, viz.,
(i) Whether prosecutrix was minor at the time of commission
of penetrative sexual assault/rape by accused?
(ii) Whether accused committed penetrative sexual
assault/rape on a prosecutrix and made her pregnant? If
so, whether accused is the father of new girl child born
from prosecutrix?
7. The Learned Trial Court observed that PWs 1 and 5 had
not proved the contents of the birth certificate of PW-1 marked
Exhibit 1. That, Exhibit 6, column 22 was proved by PW-2, but the
said school was not the first school attended by the Prosecutrix.
She had attended pre-school at the Integrated Child Development
Scheme (ICDS). That, the records of the ICDS were not produced
and proved by the Prosecution. That, the signature of the guardian
did not appear in Exhibit 6 Column 22. That, PWs 17 and 21
deposed that based on the Register of Births and Deaths of the
concerned PHC, Exhibit 11, the name of the Prosecutrix appeared
in the births register, where her date of birth was recorded as "22-
03-2024". However, neither the contents of Exhibit 11, nor the
thumb impressions on the document were proved by both the
witnesses. The place of birth of the Prosecutrix was also changed
State of Sikkim vs. Pema Wangchuk Lepcha
from „G‟ to „P‟ but there were no initials of the Registrar, Births and
Deaths to endorse such corrections. Although, as per PW-21 the
Doctor who issued Exhibit 1, the father of PW-1 had made the
corrections on Exhibit 11 but this found no mention in the remarks
column of the document. That, on the inability of the Prosecution to
prove the information in Exhibit 11, the authenticity of the entries
therein were also suspect. Hence, the Prosecution failed to
establish that the victim was sixteen years old at the time of the
offence.
(i) The Learned Trial Court while discussing whether the
Respondent committed penetrative sexual assault/rape on the
Prosecutrix and made her pregnant inter alia observed that the
results from the DNA profiling test, Exhibit 23 was sufficient to
conclude that the Respondent is not the biological father of the
alleged victim‟s child. Thus, the forensic evidence did not support
the Prosecution case to establish the complicity of the Respondent
in the offence.
8. Having considered the reasons put forth in the
impugned Judgment on both points formulated by it for
determination and having meticulously examined the entire
evidence on record, we find no reason to differ from the
observations therein. In the first instance, age of the victim has
not been proved beyond a reasonable doubt in the absence of
relevant documentary evidence, as discussed elaborately by the
Learned Trial Court. The DNA profiling test, Exhibit 23, has
sounded the death knell for the Prosecution case. DNA profiling a
scientific test, assists in comparing a suspect‟s profile to DNA
evidence, to assess the likelihood of their involvement in a crime,
State of Sikkim vs. Pema Wangchuk Lepcha
in this case the paternity. The DNA profile of the victim‟s child and
that of the Respondent did not match as clearly deposed by PW-22,
the DNA Examiner who conducted the DNA Profiling Tests.
9. We are indeed aware that the evidence of a victim of
sexual offence is to be placed on a different footing as held in the
case of Phool Singh vs. State of Madhya Pradesh5 but at the same
time the evidence should be credible enough to inspire the
confidence of the Court and it should be of sterling quality for the
Court to be able to rely on it completely, to base the conviction on.
In the instant case, the very fact that the victim has stated that the
Respondent was responsible for her pregnancy but the DNA
profiling test which is a scientific forensic technique tells a different
tale cannot be discounted. Despite the DNA test not fortifying the
Prosecution case no further investigation was taken up on this
aspect to establish the identity of the perpetrator of the offence. It
is apparent that PW-1 has failed to disclose the name of the actual
assailant thereby rendering her entire evidence as unreliable. The
evidence of the victim fails the test of being of sterling quality. An
innocent person cannot be picked up at random from the street by
an alleged victim and made a sacrificial lamb on the altar of the lies
of the victim.
10. In the end result, on consideration of all the
evidence on record, we find that there is no error in the acquittal of
the Respondent of the charges under Section 376 of the IPC read
with Section 6 of the POCSO Act.
11. Consequently, we uphold the Judgment of the Learned
Trial Court.
(2022) 2 SCC 74
State of Sikkim vs. Pema Wangchuk Lepcha
12. Appeal is dismissed and disposed of accordingly.
13. No order as to costs.
14. Copy of this Judgment be transmitted forthwith to the
Learned Trial Court for information along with its records.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
01-05-2024 01-05-2024
Approved for reporting : Yes
ds/sl
