Sikkim High Court
Ganesh Dhakal 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
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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.14 of 2021
Appellant : Ganesh Dhakal
versus
Respondent : State of Sikkim
Application under Section 374(2) of the
Code of Criminal Procedure, 1973
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Appearance
Mr. Rahul Rathi and Ms. Khushboo Rathi, Advocates for the
Appellant.
Mr. S. K. Chettri, Additional Public Prosecutor with Mr. Sujan Sunwar,
Assistant Public Prosecutor for the Respondent.
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Crl. A. No.27 of 2023
Appellant : State of Sikkim
versus
Respondent : Ganesh Dhakal
Application under Sections 377(1)(b) and (3) of the
Code of Criminal Procedure, 1973
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Appearance
Mr. S. K. Chettri, Additional Public Prosecutor with Mr. Sujan Sunwar,
Assistant Public Prosecutor for the Appellant.
Mr. Rahul Rathi and Ms. Khushboo Rathi, Advocates for the
Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. Crl. A. No.14 of 2021 (Ganesh Dhakal vs. State of Sikkim)
and Crl. A. No. 27 of 2023 (State of Sikkim vs. Ganesh Dhakal) are
being taken up together and disposed of by this common
Judgment, as the facts involved are the same.
2. The Appellant, a thirty year-old male, was convicted of
the offences under Sections 342, 366 and 376(1) of the Indian
Crl. A. No.14 of 2021 : Ganesh Dhakal vs. State of Sikkim 2
Crl. A. No.27 of 2023 : State of Sikkim vs. Ganesh Dhakal
Penal Code, 1860 (hereinafter, the "IPC"), by the Court of the
Learned Judge, Fast Track, South and West Sikkim, at Gyalshing, in
ST (Fast Track) Case No.03 of 2020 (State of Sikkim vs. Ganesh
Dhakal), vide the impugned Judgment, dated 26-08-2021, for
committing the said offences, against the victim PW-1, aged about
eighteen years, at the time of the offence. The Appellant was
consequently sentenced to simple imprisonment of one year under
Section 342 of the IPC, rigorous imprisonment of ten years under
Section 366 of the IPC and fine of ₹ 50,000/- (Rupees fifty
thousand) only, and rigorous imprisonment for ten years and fine
of ₹ 1,00,000/- (Rupees one lakh) only, under Section 376(1) of
the IPC. The fines bore default stipulations.
3. The State-Appellant by filing an Appeal under Section
377 of the Cr.P.C., sought enhancement of the sentence imposed
on the Respondent by the impugned Order on Sentence, dated 31-
08-2021, by conversion of the Charge framed against the
Respondent under Section 376(1) of the IPC, under which he was
convicted, to Sections 376(2)(b) and (c) of the IPC, it was
contended that the charges framed against the Respondent were
erroneous and the sentence imposed upon such conviction was
inadequate as the Respondent was a Government servant, thereby
bringing him within the ambit of the aforementioned provisions of
law and not under Section 376(1) of the IPC.
4. Before proceeding to analyse the evidence on record
and the arguments advanced before this Court, the Prosecution
case is summarised herein. PW-1, the eighteen year-old victim
girl, lodged an FIR, Exbt-1, on 15-07-2020, alleging that she had
Crl. A. No.14 of 2021 : Ganesh Dhakal vs. State of Sikkim 3
Crl. A. No.27 of 2023 : State of Sikkim vs. Ganesh Dhakal
been sexually assaulted by the Appellant on 12-07-2020 (Sunday),
at around 09.00 p.m. PW-2 her cousin, had spent the relevant
night in her home (home of PW-1). After PW-1 had fallen asleep
she was later woken up by PW-2, asking her to accompany her to
the roadside below the house as a friend of hers was delivering a
packet for her. On the insistence of PW-2, PW-1 accompanied her.
At the road a car driven by the Appellant, accompanied by another
male passenger, PW-4, seated in the back seat arrived at where
they were. PW-2 boarded the second seat of the car where PW-4
was already seated, while the Appellant physically overpowered
PW-1, forced her into the car and drove with one hand, while
holding her hands with other. Despite her threat to jump out of the
moving vehicle, he refused to stop and after some time reached a
house. He then took her forcibly into one of the bedrooms of the
house, while PW-2 went into another room with PW-4. PW-1 was
sexually assaulted by the Appellant for about half an hour, after
which he went into the kitchen alone for food, while taking her
clothes with him, returned and again continued to rape her. At
around 02.30 a.m. PW-4 came knocking at their door, urging the
Appellant to open it and to drop PW-1 and PW-2 back to their
house. She was finally driven back to the same roadside by the
Appellant, duly accompanied by PW-2 and PW-4. PW-1 and PW-2
then walked to the house of PW-1, while the Appellant and PW-4
drove away. PW-1 en route to her house questioned PW-2 as to
why she had failed to come to her aid although she had called out
to her, to which PW-2 responded that PW-4 had prevented her.
(i) The relevant Police Station registered Case
No.05(07)2020, dated 15-07-2020, under Sections 376, 366 and
Crl. A. No.14 of 2021 : Ganesh Dhakal vs. State of Sikkim 4
Crl. A. No.27 of 2023 : State of Sikkim vs. Ganesh Dhakal
342 of the IPC against the Appellant and upon completion of
investigation, submitted Charge-Sheet against the Appellant under
the same sections of law supra. Charge was framed against the
Appellant by the Learned Trial Court also for the same offences.
The Appellant entered a plea of "not guilty" and claimed trial. The
Prosecution examined eleven witnesses in a bid to establish their
case. On closure of Prosecution evidence, the Appellant was
examined under Section 313 of the Code of Criminal Procedure,
1973 (hereinafter, the "Cr.P.C."), to enable him to explain the
incriminating evidence appearing against him. He claimed not to
have committed any of the alleged offences. His responses were
recorded. He sought to and was permitted to examine one Head
Constable as DW-1. After hearing the final arguments of the
parties the impugned Judgment and Order on Sentence were
pronounced.
5. Being thus aggrieved, the Appellant in Crl. A. No.14 of
2021 is before this Court wherein the following arguments were
advanced by Learned Counsel for the Appellant viz;
(a) The incident occurred on 12-07-2020 but was reported
only on 15-07-2020, the Prosecution case lacks
credence on account of the delayed reporting.
(b) The delay in lodging the FIR Exbt-1, was sought to be
explained away by PW-1 on grounds that she took time
to inform her friend 'K' and her family but her friend 'K'
was not examined as a Prosecution witness to
authenticate her stand.
(c) The alleged scribe of the FIR was not examined to
prove the presence of PW-1 in his cybercafé.
Crl. A. No.14 of 2021 : Ganesh Dhakal vs. State of Sikkim 5
Crl. A. No.27 of 2023 : State of Sikkim vs. Ganesh Dhakal
(d) PW-1 was in possession of her cell phone at the time of
the alleged offence but she failed to call anyone for
help.
(e) Her evidence that the Appellant was able to hold her
hands with one hand and drive his vehicle with the
other at the same time is at best incongruous.
(f) The evidence of the victim is rife with discrepancies and
fails to corroborate the statements made by her in her
Section 161 Cr.P.C. statement. Learned Counsel urged
that the "Explanation" provided in Section 162 Cr.P.C.
in this context be duly considered.
(g) Moreover, there is no explanation as to why Exbt-4 the
Section 164 Cr.P.C. statement of the victim was lodged
one month after the incident, enabling her to improve
her case.
(h) That, in light of the consistent anomalies emerging in
the deposition of the victim, she does not fulfil the
criteria of a sterling witness, hence her evidence
deserves to be disregarded by this Court and the
Appellant acquitted of the offences charged with.
6. Repelling the arguments advanced, Learned Additional
Public Prosecutor contended that, the medical evidence on record
establishes forceful sexual assault perpetrated on PW-1. That,
minor anomalies in the evidence of PW-1 and her statement under
Section 161 Cr.P.C. which are otherwise consistent, do not demolish
the Prosecution case and the argument thereby deserves no
consideration. The delay in the lodging of the FIR has been
Crl. A. No.14 of 2021 : Ganesh Dhakal vs. State of Sikkim 6
Crl. A. No.27 of 2023 : State of Sikkim vs. Ganesh Dhakal
explained by PW-1 and the non-examination of "K" is not fatal to
the Prosecution case. The Appeal thereby deserves a dismissal.
7. We have given due consideration to the rival
contentions advanced before us and examined all the evidence,
documents on record and perused the impugned Judgment and
Order on Sentence. Whether the Learned Trial Court erred in
convicting the Appellant under the above sections of law is to be
determined in Crl. A. No.14 of 2021 and whether the Prosecution
having proved its case as concluded by the impugned Judgment
and Order on Sentence, the Appeal under Section 377 of the Cr.P.C.
should be duly considered for enhancement of sentence, is to be
determined in Crl. A. No.27 of 2023.
(i) Addressing the argument of Learned Counsel for the
Appellant regarding the anomalies in the deposition of PW-1 in the
Court with that of her Section 161 Cr.P.C. statement, it would be
imperative to examine the provisions of Section 161 and Section
162 of the Cr.P.C. along with Section 145 of the Indian Evidence
Act, 1872 (hereinafter, the "Evidence Act").
(ii) Section 161 of the Cr.P.C. deals with the examination
of witnesses by the Police. The said provision is extracted
hereinbelow for easy reference;
"161. Examination of witnesses by police. ─(1)
Any police officer making an investigation under this
Chapter, or any police officer not below such rank as
the State Government may, by general or special
order, prescribe in this behalf, acting on the
requisition of such officer, may examine orally any
person supposed to be acquainted with the facts and
circumstances of the case.
(2) Such person shall be bound to answer truly
all questions relating to such case put to him by such
officer, other than questions the answers to which
would have a tendency to expose him to a criminal
charge or to a penalty or forfeiture.
(3) The police officer may reduce into writing
any statement made to him in the course of an
examination under this section; and if he does so, he
Crl. A. No.14 of 2021 : Ganesh Dhakal vs. State of Sikkim 7
Crl. A. No.27 of 2023 : State of Sikkim vs. Ganesh Dhakal
shall make a separate and true record of the
statement of each such person whose statement he
records:
Provided that statement made under this sub-
section may also be recorded by audio-video
electronic means.
Provided further that the statement of a woman
against whom an offence under section 354, section
354A, section 354B, section 354C, section 354D,
section 376, section 376A, section 376AB, section
376B, section 376C, section 376D, section 376DA,
section 376DB, section 376E or section 509 of the
Indian Penal Code (45 of 1860) is alleged to have
been committed or attempted shall be recorded, by a
woman police officer or any woman officer."
(iii) Section 162 of the Cr.P.C. deals with the purpose and
the manner in which the statement recorded under Section 161 of
the Cr.P.C. can be used at any stage of trial and provides as
follows;
"162. Statements to police not to be
signed─Use of statements in evidence.─(1) No
statement made by any person to a police officer in
the course of an investigation under this Chapter,
shall, if reduced to writing, be signed by the person
making it; nor shall any such statement or any record
thereof, whether in a police diary or otherwise, or any
part of such statement or record, be used for any
purpose, save as hereinafter provided, at any inquiry
or trial in respect if any of any offence under
investigation at the time when such statement was
made:
Provided that when any witness is called for
the prosecution in such inquiry or trial whose
statement has been reduced into writing as
aforesaid, any part of his statement, if duly proved,
may be used by the accused, and with the permission
of the Court, by the prosecution, to contradict such
witness in the manner provided by section 145 of the
Indian Evidence Act, 1872 (1 of 1872); and when any
part of such statement is so used, any part thereof
may also be used in the re-examination of such
witness, but for the purpose only of explaining any
matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to
apply to any statement falling within the provisions of
clause (1) of section 32 of the Indian Evidence Act,
1872 (1 of 1872), or to affect the provisions of
section 27 of that Act.
Explanation.─An omission to state a fact or
circumstance in the statement referred to in sub-
section (1) may amount to contradiction if the same
appears to be significant and otherwise relevant
having regard to the context in which such omission
occurs and whether any omission amounts to a
contradiction in the particulars context shall be a
question of fact. (emphasis supplied)
Crl. A. No.14 of 2021 : Ganesh Dhakal vs. State of Sikkim 8
Crl. A. No.27 of 2023 : State of Sikkim vs. Ganesh Dhakal
(iv) The provisions extracted hereinabove are self-
explanatory and on pain of repetition it must be stated that
statements under Section 161 Cr.P.C. made to the Police by a
witness is not substantive evidence and can be used only for the
limited purpose of contradicting a witness on what he has deposed
during the trial, in terms of Section 145 of the Evidence Act.
Suffice it to elucidate that Section 162 Cr.P.C. prohibits the use of
statement of witness made to the Police, except for the purpose of
contradicting such witness as laid down in the proviso to Section
162(1) Cr.P.C.
(v) The Supreme Court in V. K. Mishra and Another vs. State
of Uttarakhand and Another
has laid down as follows;
"17. The court cannot suo motu make use of
statements to police not proved and ask questions
with reference to them which are inconsistent with
the testimony of the witness in the court. The words
in Section 162 CrPC "if duly proved" clearly show that
the record of the statement of witnesses cannot be
admitted in evidence straightaway nor can be looked
into but they must be duly proved for the purpose of
contradiction by eliciting admission from the witness
during cross-examination and also during the cross-
examination of the investigating officer. The
statement before the investigating officer can be used
for contradiction but only after strict compliance with
Section 145 of the Evidence Act that is by drawing
attention to the parts intended for contradiction."
(vi) Section 145 of the Evidence Act provides as follows;
"145. Cross-examination as to previous
statements in writing.─A witness may be cross-
examined as to previous statements made by him in
writing or reduced into writing, and relevant to
matters in question, without such writing being shown
to him, or being proved; but, if it is intended to
contradict him by the writing, his attention must,
before the writing can be proved, be called to those
parts of it which are to be used for the purpose of
contradicting him." (emphasis supplied)
(vii) It is thus reiterated herein that, during the cross-
examination of a witness, when the statement made by the witness
(2015) 9 SCC 588
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Crl. A. No.27 of 2023 : State of Sikkim vs. Ganesh Dhakal
is sought to be contradicted, the witness must be shown those
portions of the previous statement, which have been reduced into
writing and which are to be used for the purpose of contradicting
him. It is settled law that, while recording the deposition of the
witness, the Trial Court is to ensure that the part of the statement
recorded by the Police, which is intended to contradict the witness
is brought to the notice of the witness, in his cross-examination.
Should the witness admit the part which is intended to contradict
him, it stands proved and will have to be considered by the Court
when appreciating the evidence. If the witness denies that part of
the statement to which his attention is drawn and which is sought
to be contradicted, the Trial Court is to mention it in the deposition.
Thereafter, when the IO is examined in the Court, his attention is
to be drawn to the passage marked for the purpose of contradiction
and his evidence recorded, in the context of the witnesses'
statement, made to him. The Courts cannot use statements made
to the Police without the witness being confronted with the specific
statements sought to contradict the witness. There has to be
specific adherence to the provisions of Section 162 of the Cr.P.C.
and Section 145 of the Evidence Act.
(viii) In the matter at hand, admittedly PW-1 during cross-
examination was not confronted with the statement made by her
under Section 161 Cr.P.C. before the Police, to prove any
contradiction therein with her deposition in the Court, neither was
the IO examined on such statements. All that the Learned Trial
Court has recorded in some places of the victim's evidence is
"objected to as beyond her Section 161 Cr.P.C. statement". In the
absence of the witness being confronted with the concerned
Crl. A. No.14 of 2021 : Ganesh Dhakal vs. State of Sikkim 10
Crl. A. No.27 of 2023 : State of Sikkim vs. Ganesh Dhakal
statements, such objections as seen (supra), serve no purpose as
they lack in specifics. The above discussions lends a quietus to the
arguments regarding anomalies in the Section 161 Cr.P.C. As no
significant contradictions in the cross-examination of PW-1 was
noticed, in terms of the provisions of law as discussed at length
above, the "Explanation" in Section 162 Cr.P.C. (supra) relied on by
Learned Counsel is of no consequence for the instant purposes.
(ix) Next, the contention pertaining to improvements made
by the victim in her Section 164 Cr.P.C. statement is being
addressed. That, the contents of a statement under Section 164
Cr.P.C. is not substantive evidence is now no more res integra and
should the Court contemplate considering its contents, then the
author of the contents ought to be confronted with it and the
provisions of Section 145 of the Evidence Act, 1872, complied with.
The object of statement of witnesses, recorded under Section 164
Cr.P.C. is concerned the object is twofold. The first is to deter the
witness from altering his stand by denying the contents of his
previously recorded statement. Secondly, it is to tide over
immunity from Prosecution by the witness under Section 164
Cr.P.C. The proposition that if a statement of a witness is recorded
under Section 164 Cr.P.C., his evidence in Court should be
discarded is not at all warranted. Section 157 of the Evidence Act
makes it clear that a statement recorded under Section 164 Cr.P.C.
cannot be relied upon and is only for the purpose of corroborating
statements made by the witnesses in the committal Court or even
to contradict it, for the reason that the Defence has had no
opportunity of cross-examining the witnesses whose statements
were recorded under Section 164 Cr.P.C. [See R. Shaji vs. State of
Crl. A. No.14 of 2021 : Ganesh Dhakal vs. State of Sikkim 11
Crl. A. No.27 of 2023 : State of Sikkim vs. Ganesh Dhakal
Kerala (2013) 14 SCC 266)]. It is also settled law that the formalities
prescribed by Section 145 of the Evidence Act are to be complied
with, even for statements recorded under Section 164 Cr.P.C.
Every circumstance intended to be used as contradiction or
corroboration has to be put to the witness point by point and the
whole statement read out to him. The admission or denial thereof
has to be extracted from the witness, before the Court can
consider such contradiction or corroboration. In the instant
matter, it is seen that all that the witness has stated with regard to
Section 164 Cr.P.C. statement, in her testimony before the Court is
that, during the course of investigation she was taken to Court and
her statement recorded, which she identified as Exbt-4, on which
she had affixed her right thumb impression. In her cross-
examination she denied having improvised her statement at the
time when her Section 164 Cr.P.C. statement was recorded.
Clearly she was not confronted point by point, fact by fact or
paragraph by paragraph on each circumstance that was intended
to be contradicted or corroborated, and hence the arguments
advanced by Learned Counsel for the Appellant on this aspect is
untenable.
(x) Now, on examining the evidence of the victim we are of
the considered view that it is cogent and consistent with regard to
what transpired before she left her house, then accompanied PW-2
on her insistence and of the sexual assault perpetrated on her.
That, the Appellant after forcing her into his car in which PW-4 was
already seated and PW-2 climbed in as well. He dragged her into
one bedroom, where he sexually assaulted her till around 02.30
a.m. At around 02.30 a.m. PW-4 knocked on the door of the
Crl. A. No.14 of 2021 : Ganesh Dhakal vs. State of Sikkim 12
Crl. A. No.27 of 2023 : State of Sikkim vs. Ganesh Dhakal
bedroom, which the Appellant finally opened and thereafter drove
PW-1 and PW-2 and to the same roadside, PW-4 accompanied
them. It was her case that she called out to PW-2 the entire time
when she was being sexually assaulted but PW-2 did not come to
her aid and later on confronting her, PW-2 told her that she had
been restrained by PW-4. On the next day PW-2 gave her two "I-
pills" which the Appellant had sent through PW-4 and she
consumed one on being coerced by PW-2. The other pill was later
handed over by her to the Police, vide the seizure memo Exbt-3.
This evidence regarding the seizure, was fortified by that of PW-5
and PW-6, witnesses to such seizure. After the incident she was
determined to report the matter. She completed her household
chores and told her friend, one "K", that she was going to lodge a
complaint. He advised her to take a guardian with her. She went
to her maternal aunt, PW-3 and narrated the incident to her. PW-3
opined that her parents ought to be informed about it, but before
that called the Appellant from the cell phone of PW-2, who
however, rejected her call. Then, PW-3 accompanied by PW-1 and
her parents, went to the residence of the area MLA, where the
Appellant pleaded with PW-3 not to report the matter as he had
committed a mistake. However, both PW-1 and PW-3 went to the
concerned Police Station and reported the matter on 15-07-2020,
en route having requested a cyber cafe owner to prepare Exbt-1,
the FIR which PW-1 signed and filed at the Police Station. This
evidence withstood the test of cross-examination. The conduct of
PW-2 is rather bizarre, who despite having deposed that PW-1 had
been forced into the vehicle by the Appellant and forcibly taken
into his room, chose to remain calmly outside with PW-4 and only
Crl. A. No.14 of 2021 : Ganesh Dhakal vs. State of Sikkim 13
Crl. A. No.27 of 2023 : State of Sikkim vs. Ganesh Dhakal
at 02.00 a.m. told PW-4 to knock on the Appellant's door.
Admittedly, she heard the victim calling out to her but she did not
rush to her assistance. She corroborated the evidence of PW-1
pertaining to the fact that the Appellant had sent contraceptive pills
for PW-1 which she persuaded PW-1 to consume. In fact, her
cross-examination extracted the fact that the Appellant had
threatened to take the victim's life if she did not take the I-pills
(contraceptive pills).
(xi) The alleged delay in the FIR in no manner razes the
Prosecution case to the ground, for the reason that PW-1 has
clearly explained the dilemmas facing her before she lodged Exbt-
1. On the morning after the incident she had told PW-2 that she
wanted to report the matter but PW-2 advised her against it by
convincing her that she would ruin her own reputation. It was
only after she confided in her friend "K" who advised her to lodge a
Complaint that she did so with the help of PW-3. In any event it is
no one's case that the act was consensual.
(xii) In State of Punjab vs. Gurmit Singh and Others2, the
Supreme Court while addressing the issue of belated lodging of FIR
in matters pertaining to sexual offences held that;
"8. .............................. The courts cannot overlook
the fact that in sexual offences delay in the lodging of
the FIR can be due to variety of reasons particularly
the reluctance of the prosecutrix or her family
members to go to the police and complain about the
incident which concerns the reputation of the
prosecutrix and the honour of her family. It is only
after giving it a cool thought that a complaint of
sexual offence is generally lodged. ......................"
It was further observed that, the Courts while evaluating
evidence, should remain alive to the fact that in a case of rape, no
self-respecting woman would come forward in a Court just to make
(1996) 2 SCC 384
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a humiliating statement against her honour as is involved in the
commission of rape on her. In such cases, considerations which
have no material effect on the veracity of the Prosecution case or
even discrepancies in the statement of the Prosecutrix should not,
unless the discrepancies are of fatal nature, be allowed to throw
out an otherwise reliable Prosecution case. That, the inherent
bashfulness of females and the tendency to conceal outrage of
sexual aggression are factors which the Courts should not
overlook. The testimony of the victim in such cases is vital and
unless there are compelling reasons which necessitate looking
for corroboration of her statement, the Courts should act on the
testimony of the victim alone to convict an accused. It was held
that seeking corroboration of her statement before relying upon
the same, as a rule, in such cases, amounts to adding insult to
injury. The evidence of a girl or a woman who complains of rape or
sexual molestation, should not be viewed with doubt, disbelief or
suspicion. That, no law requires insistence upon corroboration of
her statement to base conviction of an accused. The evidence of a
victim of sexual assault stands almost on a par with the evidence
of an injured witness and to an extent is even more reliable.
(xiii) In State of Maharashtra vs. Chandraprakash Kewalchand
Jain , it was observed as follows;
"16. A prosecutrix of a sex offence cannot be
put on 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
(1990) 1 SCC 550
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Crl. A. No.27 of 2023 : State of Sikkim vs. Ganesh Dhakal
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. ......................." (emphasis supplied)
The principles enunciated in the above ratiocinations have to
be borne in mind.
(xiv) PW-3 having checked her niece's body found several
bite marks on her chest and breasts and she was not in a condition
to even walk properly.
(xv) That, having been said, the evidence of the Doctor PW-
10, in her medical examination was clearly revelatory of the fact of
sexual assault on the victim. Exbt-12 is the medical report
prepared by PW-10 which bore the following remarks;
"Arrived - 3.30 p.m. Ms. Sxxxxx xxxxxx, 18/F was
Examined - 3.45 p.m. escorted to the p.m. PHC along
with her mother by NK Neelam Rai
for medical examination.
Identification mark - small mole of around <0.2 cm on the upper
outer quadrant of right breast.
Type of Size of Part of the Nature of injury Weapons Remarks
injury each body (Simple/Grievous) used for
(cuts, injury (3 inflicted inflicting
bruise dimension injury
burns, al)
etc)
Crl. A. No.14 of 2021 : Ganesh Dhakal vs. State of Sikkim 16
Crl. A. No.27 of 2023 : State of Sikkim vs. Ganesh Dhakal
O/E Patient is conscious, cooperative and oriented to time place and
person
Vitals - S/E CNS-WNL Local Examination
BP - 104/72 mm Hg CVS - S1S2 ⨁ -> Vaginal tear - present
PR - 76 min Resp - B/L AE ⨁ -> No swelling
RR - 16/min P/n - soft NT -> Ecchymosis on right
afebrile vaginal wall
-> perineal tear absent
-> hymen lost/not intact
Head to toe examination
Head & neck - neck 4 cm x 1.5 cm purplish red bruise over upper 1/3
at neck below ear lobe on left side.
Chest & torso - (purplish red) bruise of 5 x 2 cm over left side, above
acromioclavicular joint.
- pectoral region ① 3 x 1 cm over upper outer quadrant
of left breast purplish red bruise
* UPT -> ─ ve ② 5 x 3 cm of greenish bruise over
the left areolar region
* no other signs of bruise, ③ cut of < 0.4 cm over lower end of
scratch mark, laceration, nipple
or abrasion sign.
* apparel worn @ time of assault is not available as she washed them
the very day
Advice
Two vaginal swab are collected and handed to police
The swabs are to be sent to RFSL, Ranipool
......................................................"
(xvi) Penetrative sexual assault perpetrated on PW-1 was
thus indubitably established by the evidence of PW-10, who under
cross-examination volunteered to state that the injuries on the
person of the victim appeared to be a few days old. The victim
was medically examined on 15-07-2020 after she lodged the FIR,
the incident having occurred on 12-07-2020. In fact the statement
of PW-1 and the medical evidence are more than adequate to
prove the fact of penetrative sexual assault. The Learned Trial
Court has clearly held in the impugned Judgment that in her
considered opinion various minor discrepancies and inconsistencies
pointed out by the Learned Defence Counsel in his argument,
hardly shakes the evidence of the Prosecutrix nor were they found
significant enough to cause a doubt on the Prosecution case. That,
all other surrounding evidence on the record, as already described
cogently and satisfactorily proves the case of the Prosecution
against the Appellant beyond reasonable doubt.
8. In consideration of the foregoing discussions, we are of
the considered view that the Prosecution has established beyond
Crl. A. No.14 of 2021 : Ganesh Dhakal vs. State of Sikkim 17
Crl. A. No.27 of 2023 : State of Sikkim vs. Ganesh Dhakal
reasonable doubt that the Appellant had perpetrated the offence of
rape on PW-1 after abducting and unlawfully restraining her. We
therefore find no reason to differ with the findings of the Learned
Trial Court as pronounced in the impugned Judgment and the
consequent Order on Sentence in Crl. A. No.14 of 2021. Both are
accordingly upheld.
9. Learned Counsel for the parties were heard at length in
Crl. A. No.27 of 2023. Learned Counsel for the Respondent relied
on Eknath Shankarrao Mukkawar vs. State of Maharashatra4, wherein
the Supreme Court discussed the provisions of Sections 377(1) and
(2) of the Cr.P.C.
10. We find that the Prosecution has failed to bolster with
any documentary evidence, their claim that the Respondent was a
Government servant. All that the State-Appellant was able to
indicate to this Court was the "Arrest/Court Surrender Memo",
Exbt-14 reflecting the arrest of the Respondent which recorded his
particulars and at Serial No.6(x) of the form, it was recorded inter
alia as follows; "Occupation ─ Government servant". Although
strenuous efforts were made to convince this Court that PW-3 had
categorically deposed that the Respondent was a "security guard"
attached to the residence of area MLA and PW-4 a police personnel
had also identified him as his friend and colleague, we are unable
to convince ourselves that such statement would suffice to
establish the identity of the Respondent as a Government servant.
No identification card of the Respondent towards this end was
seized by the IO, who merely deposed that the Respondent was
posted as a "house guard" of the local MLA and shared
(1977) 3 SCC 25
Crl. A. No.14 of 2021 : Ganesh Dhakal vs. State of Sikkim 18
Crl. A. No.27 of 2023 : State of Sikkim vs. Ganesh Dhakal
accommodation with other guards. The yardstick set for the
Prosecution for proving its case is; "beyond reasonable doubt" the
Courts can accept no less.
11. That apart, we also observe that Section 376(2)(b) of
the IPC has been invoked erroneously by the Prosecution. The
provision reads as follows;
"376. Punishment for rape.─(1)...........................
(2) Whoever,─
(a) ......................................................
(b) being a public servant,
commits rape on a woman in such
public servant's custody or in the
custody of a public servant
subordinate to such public
servant; or
..............................................................................."
(i) Custody, in the said provision, would mean when the
victim is in the care of such a person. The Oxford Dictionary,
defines "Custody" as follows;
"Custody/ 1. the protective care or guardianship of
someone or something. Law parental responsibility,
especially allocated to one of two divorcing parents.
2. Imprisonment. ........"
By no stretch of the imagination can the victim be said to
have been in the custody of the Respondent.
12. So far as Section 376(2)(c) of the IPC is concerned, as
already discussed, no evidence establishes this position, hence the
Prosecution has also failed on this facet.
13. In view of the foregoing discussions, we find that the
Prosecution having failed to establish the identity of the
Respondent as a Government servant, cannot belatedly seek
alteration of the charges against him and consequent enhancement
of Sentence. It is worth noticing and remarking that the
Prosecution failed to take advantage of the provisions of Section
216 of the Cr.P.C., by bringing to the notice of the Learned Trial
Crl. A. No.14 of 2021 : Ganesh Dhakal vs. State of Sikkim 19
Crl. A. No.27 of 2023 : State of Sikkim vs. Ganesh Dhakal
Court that it was clothed with powers to alter or add any charge at
any time before Judgment was pronounced. Indeed, the piteous
state of affairs of the Prosecution can be gauged from the
admission made in the "Memo of Appeal" that, the fact the
Respondent was a Government employee came to the notice of the
State-Appellant only during the course of hearing in Crl. A. No.14
of 2021 (Ganesh Dhakal vs. State of Sikkim). Need we add more.
14. Crl. A. No.14 of 2021 and Crl. A. No. 27 of 2023
accordingly stand dismissed and disposed of.
15. No order as to costs.
16. 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
16-04-2025 16-04-2025
Approved for reporting : Yes
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