Sikkim High Court
Shanu Rai @ Netra Kumar Rai vs State Of Sikkim on 16 April, 2025
Author: Meenakshi Madan Rai
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
Dated : 16th April, 2025
---------------------------------------------------------------------
DIVISION BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
---------------------------------------------------------------------
Crl.A. No.04 of 2024
Appellant : Shanu Rai @ Netra Kumar Rai
versus
Respondent : State of Sikkim
An application under Section 374(2) of
the Code of Criminal Procedure, 1973
------------------------------------------------------------------
Appearance
Mr. Safal Sharma, Advocate (Legal Aid Counsel) for the Appellant.
Mr. Yadev Sharma, Additional Public Prosecutor with Mr. Sujan
Sunwar, Assistant Public Prosecutor for the State-Respondent.
------------------------------------------------------------------
JUDGMENT
Meenakshi Madan Rai, J.
1. This Appeal assails the conviction of the Appellant under
Section 5(g), punishable under Section 6 of the Protection of
Children from Sexual Offences Act, 2012 (hereinafter, "POCSO Act,
2012") and under Section 366 of the Indian Penal Code, 1860
(hereinafter, "IPC"), vide the impugned Judgment, dated 20-12-
2023, in S.T. (POCSO) Case No.19 of 2020, of the Court of the
Learned Special Judge, POCSO Act, 2012.
(a) The Order on Sentence, dated 21-12-2023, directed the
Appellant to undergo rigorous imprisonment for a term of twenty
years and to pay a fine of ₹ 2,000/- (Rupees two thousand) only, for
the offence of sexual assault and to undergo simple imprisonment
for a term of five years and fine of ₹ 2,000/- (Rupees two thousand)
only, for the offence of abduction, with default stipulations. This
order is also impugned.
Shanu Rai @ Netra Kumar Rai vs. State of Sikkim
2. The facts of the Prosecution case briefly summarised is
that, on 21-03-2020, PW-1, the victim lodged an FIR, Exbt P-1/PW-
1 informing that, on the relevant night when she was asleep along
with her younger brother and sister at her home, she woke up to
some knocking on the door and opened it. Two unknown persons
closed her mouth, took her to a nearby jungle and pushed her to the
ground. She recognised the Appellant, a co-worker of her parents,
who disrobed and sexually assaulted her. Investigation was
endorsed to PW-12, the Investigating Officer (I.O.), who on
completion thereof, submitted Charge-Sheet under Section 6 of the
POCSO Act, 2012, against the Appellant. The Learned Trial Court
proceeded to frame Charge against the Appellant under Sections
366/34, 376D, 376DA of the IPC and Section 5(g) of the POCSO Act,
punishable under Section 6 of the same Act, read with Section 34 of
the IPC. The Charge having been read over to the Appellant, he
entered a plea of "not guilty", pursuant to which trial commenced
and the Prosecution examined twelve witnesses. On closure of the
Prosecution evidence, the Appellant was examined under Section
313 of the Code of Criminal Procedure, 1973 (hereinafter, "Cr.P.C.")
to enable him to explain the incriminating evidence against him and
his responses recorded. He sought to and examined himself as DW-
1 and his mother as DW-2.
3. Learned Counsel for the Appellant canvassed that the
Learned Trial Court was in error in convicting the Appellant under
the provisions of the POCSO Act, 2012 (supra), as the age of the
victim was not proved beyond reasonable doubt. The Birth
Certificate of the victim was not furnished to fortify the Prosecution
case. The victim's father gave her date of birth as 19-04-2007
Shanu Rai @ Netra Kumar Rai vs. State of Sikkim
during her school admission, while PW-1 the victim and her mother
PW-2 stated that, it was 19-04-2009, which are contradictory to
each other. The entry of the date of birth in the School Admission
Register was made in the year 2016, when the victim was admitted
in Class III, no other document, such as, admission to her previous
school or Birth Register was furnished to augment the assertion of
the Prosecution regarding the correct date of birth of the victim.
That apart, the victim has made several improvements in the
Prosecution case as seen from her deposition in the Court as against
her statement made under Section 164 Cr.P.C. Besides, the
forensic report filed by the Prosecution fails to support the
Prosecution case in any manner. That, there was no witness to
establish that the Appellant had actually visited the house of the
victim along with other persons, on the night of the incident nor was
any medical evidence of the Appellant furnished to establish that he
was capable of sexually assaulting the victim. Hence, the Appeal,
on this ground alone, besides the other grounds urged, ought to be
dismissed and the Appellant acquitted of all charges.
4. Per contra, Learned Additional Public Prosecutor
contended that the evidence of PWs 1 and 2 pertaining to the age of
the victim was correctly considered by the Learned Trial Court, as it
was undecimated in cross-examination. Exbt 2, the Section 164
Cr.P.C. statement of the victim, reveals that, the Magistrate
recording it, concluded that, the victim was aged thirteen years,
hence there is no reason to disbelieve such finding. Relying on the
decision of xxxxx vs. State of Sikkim1 it was urged that this Court
held therein that the Trial Court itself can make an assessment of
the age of the victim, that, in light of such pronouncement, the age
2024 SCC OnLine Sikk 89
Shanu Rai @ Netra Kumar Rai vs. State of Sikkim
of the victim as assessed by the Magistrate cannot be faulted. The
conviction was rightly handed out to the Appellant as the victim's
evidence regarding the sexual assault was consistent and duly
supported by the evidence of PW-4, the Doctor who examined her
and found her clothes covered with mud, grass and dry leaves.
There were signs of recent vaginal penetration and minor swelling
around the vaginal orifice of the victim. Hence, the impugned
Judgment and Order on Sentence require no interference and the
Appeal deserves a dismissal.
5. We have heard the rival contentions raised by Learned
Counsel for the parties. The evidence has been perused as also all
other documents on records including the impugned Judgment and
Order on Sentence.
6. Was the Appellant guilty of the offence and was the
victim below eighteen years as found by the Learned Trial Court are
the questions for determination before us.
7. Addressing the argument pertaining to the age of the
victim, relevantly we may notice that the Learned Trial Court in
Paragraphs 22 and 23 of the impugned Judgment observed as
follows;
"22. To prove the victim's age, the prosecution has
produced the school admission details (Exhibit-P8/PW-
8) which shows that her date of birth is recorded in the
school record as 19.04.2007. The concerned
Headmaster (PW-8) has confirmed the record but
under cross-examination, he would state that the
victim's date of birth was recorded as 19.04.2007
based on the verbal mention of her father.
23. The victim and her mother on the other hand
would state that her date of birth is 19.4.2009. It is
apparent that here is a difference of two years between
the school record and the version of the victim's
mother. Apart from the school record, the parents of
the victim does not have any other document to show
the victim's actual year of birth. Under such
circumstances, it would not be correct to fully rely on
the school records as about the actual date of birth of
the victim. Nevertheless, the evidence of the victim's
Shanu Rai @ Netra Kumar Rai vs. State of Sikkim
mother of her daughter's age also cannot be
disregarded. As a matter of caution, even if five years
is added on the year of birth mentioned by the victim's
mother, the victim would be between 15-16 years old
as on the date of offence." [emphasis supplied]
(i) Having perused that, we pause here momentarily, as we
are unable to comprehend how the Learned Trial Court can by
adding five years to the age of the victim, based on the evidence of
PW-2, conclude that the victim would be 15-16 years old. This
rationale of the Learned Trial Court is not fortified by any statutory
provision, precedential law or even one under Article 141 of the
Constitution of India and is therefore alien to the legal system. We
are thus not inclined to consider such presumptions and disregard it
as it deserves to be, in totality.
(ii) That having been said, we notice that PW-1 in her
Section 164 Cr.P.C. statement recorded on 04-05-2020, claimed to
be thirteen years of age and that her date of birth is 19-04-2009,
which her mother PW-2 supported. In her evidence before the Court
recorded in July, 2022, she stated that she was fourteen years old.
This is proof of the fact that she appears to be unaware of her age
as after two years of the recording of her Section 164 Cr.P.C. (in
May, 2020) statement, she claims to be only a year older in July,
2022. There is no Register of Births furnished before the Learned
Trial Court by the Prosecution, much less a Birth Certificate to
bolster this submission. This is being flagged for the reason that
the Prosecution had relied on the evidence of PW-8 the Headmaster
of the Government Primary School, where the victim was studying,
who stated that as per the School Admission Register, her date of
birth is 19-04-2007. That, he had recorded so, based on the verbal
version of her father, sans documentary evidence. On the face of
the contradictory evidence of PW-8, PW-1 and PW-2 pertaining to
Shanu Rai @ Netra Kumar Rai vs. State of Sikkim
the age of the victim, the Court appears to have been foisted with
the unenviable task of selecting a year of date of birth of the victim,
which obviously is not an option as the Prosecution case is to be
proved beyond reasonable doubt and not by a preponderance of
probabilities or the whim of the Court. Besides, we also notice that
PW-1 in her deposition before the Court has stated that she had
studied up to the eighth standard and discontinued her studies. The
Prosecution made no effort to explain this sentence in the context of
the year she dropped out of school. This would have been relevant
for the purpose of assessing the victim's age. PW-10 claimed to be
a Member of the Childline and PW-11 an Outreach Worker, both
working under the District Child Protection Unit. However, from
their evidence, it can be culled out that, they made no effort to
check or verify the age of the victim and agreed with what the Police
stated on this aspect, although relevant to the allegation of sexual
assault PW-11 noticed that the victim at that time was not in a
normal mental state and appeared traumatised. The argument that
the Magistrate who recorded the Section 164 Cr.P.C. statement of
the victim "assessed" her to be thirteen years is an erroneous
submission. The age given by the Magistrate was based on the
statement of the victim herself and has not been recorded as an
independent assessment of the official. Considering the vacillating
evidence discussed above with regard to the age of the victim and
the lack of documentary evidence to substantiate it, we are of the
considered view that the Prosecution has failed to prove the age of
the victim beyond reasonable doubt. Hence, we are in absolute
disagreement with the conclusion of the Learned Trial Court that
PW-1 was a minor.
Shanu Rai @ Netra Kumar Rai vs. State of Sikkim
8. Now, coming to the Prosecution case regarding the
sexual assault committed on the victim by the Appellant, we find
that the evidence of PW-1 in this context has been consistent. It is
her case that when she and her younger siblings had gone to bed
that fateful evening, she heard a knocking on the door. This
happened thrice and on the third occasion, when she opened the
door, someone suddenly caught hold of her, covered her mouth with
a cloth and pulled her outside forcibly. She saw three people then,
of whom she was able to recognise the Appellant only. She was
taken to the nearby jungle where she was disrobed and the
Appellant forcibly committed penetrative sexual assault on her.
When her mother arrived the Appellant and others fled from the
spot. She informed her mother of the incident who took her to the
Police Station, where her elder sister prepared the complaint, Exbt
P-1/PW-1, on which she signed. She was then forwarded for
medical examination. It was the specific assertion of PW-1 that, she
recognised the Appellant as he is her father's friend and often
visited their house, and she saw him when he switched on the
mobile phone light whilst he was fleeing.
(i) The victim's mother PW-2 supported the version of PW-
1. She added that when she reached the place she saw the victim
tied to a tree, stark naked and gagged with a handkerchief.
Relevantly no arguments were advanced by the defence with regard
to the above testimony of PW-2, as PW-1 made no mention of such
a circumstance. Be that as it may, PW-2 further elucidated that the
Appellant works with herself and her husband as a manual labourer
at a construction site. On the relevant day, he came to work totally
intoxicated and her husband advised him not to come to work in
Shanu Rai @ Netra Kumar Rai vs. State of Sikkim
such a condition. That evening, both she and her husband were
informed by the site contractor that their son had met with an
accident at another construction site and taken to the hospital by
the owner. They rushed to the hospital and found him in a critical
condition. Around 10.30 p.m., she returned home, where she had
left the victim with two of her younger siblings. En route she went
to the home of her elder daughter PW-3, from where her son-in-law
PW-6 accompanied her till her house. When they reached her
home, they found the door open and the lights switched off and the
victim missing. Both of them went out to the nearby jungle calling
out the victim's name. They saw a person scrambling and running
into the jungle and found the victim tied to a tree. PW-3 and PW-6
later took the victim to the PS to lodge a complaint.
(ii) PW-3, the victim's sister while stating that they were six
siblings in all, the victim being her second sister, deposed that her
mother, PW-2, had found the victim in the jungle and as per PW-1
there were three persons who took her to the jungle at night. Later,
she took her victim sister to the PS to lodge the complaint. PW-6
supported the evidence of PWs 1, 2 and 3.
(iii) PW-4 the Doctor, who examined the victim identified
Exbt P-3/PW-4 as the medical report she prepared after examining
the victim. She recorded inter alia that, the victim gave a history of
sexual assault after being taken by three people from her home to
her nearby jungle. That, the sexual assault was perpetrated by one
person only. The details are as follows;
".........................................................
O/E -> conscious, Vitals - B/P-130/74 Imp ① There was only
oriented to time, place, mm hg minor swelling
person. OR-90/m SPO2 - around vaginal
Clothing - dirty, mud 99% RA orifice present,
all over Rest Normal.
Shanu Rai @ Netra Kumar Rai vs. State of Sikkim
clothes ⨁ and feet S/E-CUS-SN2 (+) ② There is sign of
few grass-green and P/A - soft, recent vaginal
dried leaves pieces tenderness penetration
seen ⨁ at her clothes. over seen.
epigastrium
L/E - There is no cut + umbilical ③ There is no injury
injury near vagina region in the perineum.
.............................................
Labia minora
- intact * No strangulation
marks by hands or
Labia majora
any other items
No injury to clitoris noted
/urinal opening. - around-neck or
mouth/ arms/legs-
Vaginal opening or
noted.
orifice -> 1 finger
No fourchette tear * No signs of any
struggles at back-
There was minor dorsum region of
swelling around vaginal the body noted.
orifice ⨁ present.
No laceration/
There was blood abrasion ⊝
smudged in perineum.
* No bite marks
Fresh Blood was around breasts.
coming out of vagina.
No scratches seen
light clots present.
No cut/ no
Buttocks side -> lacerations.
Redness (light) noted. No discolorations.
however, no
lacerations, no cut
injury or skin blue
discoloration seen.
No signs of anal ..........................................."
penetration seen.
No redness ⊝/no
swelling ⊝
Her evidence therefore supports the evidence of the victim that
there was penetrative sexual assault committed on her by the
Appellant.
(iv) The argument that the forensic report was negative has
no legs to stand in the face of the uncontroverted and consistent
evidence of the victim.
9. In view of the foregoing discussions, we have reached
the finding that there is no reason to differ with the finding of the
Learned Trial Court so far as the question of sexual assault and
abduction is concerned.
Shanu Rai @ Netra Kumar Rai vs. State of Sikkim
10.(a) However, as the victim's minority remained
unproved, he is acquitted of the offence under Section 5(g) of the
POCSO Act, 2012. In lieu thereof, he stands convicted of the
offence under Section 376D of the IPC.
(b) In view of the offence under Section 5(g) of the POCSO
Act punishable under 6 of the same Act and Section 376D of the
IPC, being the exact same offence and the penalty to be imposed
also being the same, we are of the considered view that no
prejudice is caused to the Appellant if he is sentenced to undergo
rigorous imprisonment for twenty years under Section 376D of the
IPC, as the charge under Section 5(g) punishable under Section 6 of
the POCSO Act was clearly explained to him and understood by him.
(c) His conviction under Section 366 of the IPC and the
sentence meted out to him thereunder stands undisturbed.
(d) He is acquitted of the offence under Section 376DA of
the IPC.
11. Appeal disposed of on the above terms.
12. No order as to costs.
13. Copy of this Judgment be forwarded to the Learned Trial
Court for information along with its records.
14. A copy of this Judgment be made over to the
Appellant/Convict through the Jail Superintendent, Central Prison,
Rongyek and to the Jail Authority for information.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
16-04-2025 16-04-2025
Approved for reporting : Yes
ds
