Sikkim High Court
State Of Sikkim vs Lakpa Sherpa on 23 April, 2025
Author: Meenakshi Madan Rai
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
Dated : 23rd 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.06 of 2023
Appellant : State of Sikkim
versus
Respondent : Lakpa Sherpa
Application under Sections 378(1)(b) of the
Code of Criminal Procedure, 1973
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Appearance
Mr. Yadev Sharma, Additional Public Prosecutor with Ms. Pema
Bhutia, Assistant Public Prosecutor for the Appellant.
Mr. Rajendra Upreti, Advocate (Legal Aid Counsel) for the
Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The State-Appellant is aggrieved by the acquittal of the
Respondent of the offences under which he was charged, viz;
Section 3(a) punishable under Section 4(2) of the Protection of
Children from Sexual Offences Act, 2012 (hereinafter, the "POCSO
Act"), Sections 361 and 375, punishable under Sections 363 and
376 of the Indian Penal Code, 1860 (hereinafter, the "IPC")
respectively, vide the impugned Judgment dated 29-03-2022, in
Sessions Trial (POCSO) Case No.10 of 2021 (State of Sikkim vs.
Lakpa Sherpa), by the Court of the Learned Special Judge (POCSO
Act), Mangan, North Sikkim.
2. We may briefly advert to the facts for clarity. FIR
Exhibit 1, was lodged on 20-10-2021, before the jurisdictional P.S.,
where the alleged victim PW-3, informed that, on 17-10-2021 she
returned home to "S", a town in East Sikkim, where she resided
with her mother and step-father, after having spent a week with
her father and step-mother, in a village in North Sikkim. She
returned to town "S", to her mother and step-father, but on being
reprimanded by them, she left the house and spent the night in her
cousin's house, from where she planned to return to her father's
house the next day. Her cousin, however advised her to return
back to her mother, as her school would be re-opening, to that
end, he stopped a truck and requested the driver, the
Accused/Respondent, to reach her to place, "Z", from where she
would disembark and proceed home. The driver assured her
cousin that, he would do so as he was going to Siliguri and town
"S" fell en route, where he would drop her instead of "Z". On
reaching "S", when she requested him to stop the vehicle, he told
her that the Police would not permit him to halt and if she
accompanied him to Siliguri, on their return he would stop the
vehicle at "S". After completing his errands at Siliguri, they
returned, but when she requested him to stop at "S", he did not do
so but took her to his room in an unknown place in North Sikkim,
by which time it was around 02.00 a.m. Of the two beds in the
room she occupied one. After the lights were switched off, the
Respondent came to her bed and committed penetrative sexual
assault on her. The next day she reserved a vehicle and went to
the place, "Z", where she was helped by one person to board a
vehicle to the town "S" and she reached home at 10.00 p.m. On
20-10-2021 she along with PW-18, her mother, went to the
concerned Police Station in North Sikkim from where they were
directed to the jurisdictional Police Station and the FIR was lodged.
(i) On the basis of the said FIR, the Police Station
registered Case No.03/2021, dated 20-10-2021 under Section 4 of
the POCSO Act against the Respondent. The matter having been
investigated into by PW-22, Charge-Sheet was submitted against
the Respondent, under Section 363 of the IPC, read with Section 4
of the POCSO Act. The Respondent was then tried by the Learned
Trial Court for the offences under Section 3(a) punishable under
Section 4(2) of the POCSO Act, Section 361 punishable under
Section 363 and Section 375 punishable under Section 376 of the
IPC, the Charges having been read over and explained to him and
a plea of "not guilty" entered by him. The Prosecution examined
twenty-two witnesses to prove its case against the Respondent.
The Respondent was then examined under Section 313 of the Code
of Criminal Procedure, 1973 (hereinafter, the "Cr.P.C.") and his
responses recorded. Thereafter, on hearing the final arguments,
the Learned Trial Court pronounced the impugned Judgment of
acquittal.
3. The question that falls for determination by this Court
is whether the Learned Trial Court was in error in acquitting the
Respondent of the offences he was charged with.
4. The State-Appellant in the first instance conceded that,
the Prosecution was unable to prove that the Prosecutrix was a
minor at the time of the offence. Secondly, that on the inability of
the Prosecution to prove the victim's age, the sexual offences
committed by the Respondent consequently fell under Section 375
of the IPC and not under the provisions of the POCSO Act, 2012.
That, the fact of sexual assault is proved, as, even though the
victim consented to be taken by the Respondent to Siliguri in his
truck, on their return he forcibly drove her to his room, located
near a monastery and sexually assaulted her without her consent
as apparent from the victim's evidence. That, in such
circumstances the Judgment of acquittal be set aside and the
Respondent be convicted of the offences under Sections 375/376 of
the IPC.
5. Learned Counsel for the Respondent contended that
there was no error in the finding of the Learned Trial Court and the
Prosecution not only failed to prove the age of minority but also of
non-consensual sexual assault. The allegation that the victim did
not consent to the sexual act is belied by the fact that there were
six sheds at the place where the Respondent took the victim, the
alleged offence took place in one of the sheds. The sheds being
adjacent to each other the cries of the victim would have been
heard by the occupants of the other five sheds. Besides, had she
been raped, she would not have relaxed in the room of the
Respondent till late in the morning, where she was seen to be
sleeping till 11.00 a.m. Hence, the impugned Judgment of
acquittal ought not to be disturbed.
6. Having heard Learned Counsel for the parties, we find
that there is substance in the submissions of Learned Counsel for
the Respondent. It was fairly conceded by Learned Additional
Public Prosecutor that the Prosecution failed to furnish proof of age
of the victim. On this aspect, the Learned Trial Court took into
consideration the evidence of PW-13, PW-14, PW-17 and PW-18.
While considering the evidence of the said witnesses, it was
observed by the Learned Trial Court that PW-13 the Doctor posted
at the concerned PHC, claimed that, the Prosecutrix's date of birth
was 27-05-2007 but under cross-examination deposed that he did
not know the name of the informant and she did not sign in his
presence. That, PW-14, the Aganwadi Worker, furnished
information about the date of birth of the Prosecutrix but under
cross-examination admitted that when she put her signature at
Column No.14 of Exhibit 15 the Live Birth Register, the particulars
of the Prosecutrix was already filled up and the witness was not
present when the Prosecutrix was born. PW-17, the School
Principal, on verification from the school admission register found
the date of birth of the Prosecutrix to be 27-05-2007, but admitted
that she could not say which document was submitted at the time
of the victim's admission to school. The mother of the Prosecutrix
deposed that she did not know the contents of the Birth Certificate,
Exhibit 6. At Paragraph 20 of the impugned Judgment it was
accordingly observed as follows;
"20. In view of the above facts, date of birth
of prosecutrix given in her birth certificate (Exhibit-6)
and School Admission Register (Exhibit-22) cannot be
relied on by this Court to prove that prosecutrix was
below the age of eighteen years at the time of
incident. Accordingly, the point no.(i) is decided
against the prosecution."
This finding of the Learned Trial Court with regard to the
victim's age was not assailed by the Prosecution by way of an
Appeal.
(i) Apart from the above witnesses, we also notice that
the father of the Prosecutrix was examined as PW-6. He stated
that he did not remember the exact date of birth of his daughter
and could not say whether his daughter was fourteen years as he
did not know her date of birth. That, he had given his statement to
the Police but the same was not read over and explained to him.
PW-21 was the Doctor posted at the PHC who on a requisition sent
by the I.O. of the case verified from the Live Birth Register, Exhibit
15, of the Prosecutrix's date of birth, where it was shown to be 27-
05-2007, but admittedly she had no personal knowledge of Exhibit
15 nor was the entries made in her presence and she did not know
anything about the date of birth of the Prosecutrix in the case. The
victim, examined as PW-3, asserted that her date of birth was 27-
05-2007. The parents of the victim have admitted that they are
unaware of her date of birth in such a circumstance the victim's
evidence cannot be countenanced. PW-11, a driver in the
Monastery, claimed to be the person in whose presence Exhibit 6
the Birth Certificate of the victim was seized, but he admitted that
he did not know its contents. From the evidence of the witnesses
considered by the Learned Trial Court and that of the witnesses
discussed hereinabove by this Court, it is evident that the
Prosecution has failed to prove the age of the victim. Hence, the
conclusion of the Learned Trial Court on this facet cannot be
faulted.
7. So far as the offence of rape is concerned, it is seen
that the victim left her house on 17-10-2021. She travelled to
Siliguri in the Respondent's truck on 18-10-2021 and returned in
the vehicle the same evening, but by the time they reach the living
quarters of the Respondent, somewhere in North Sikkim, it was
around 02.00 a.m. of 19-10-2021. Her evidence reveals that, her
statement to the Police was an offshoot of the "missing person"
case lodged by her mother PW-18, when the victim failed to return
home. After the alleged offence when she returned from the house
of the Respondent, she encountered Police en route at various
places as was her admission, but she did not report any incident of
sexual assault to them, despite having been alone when she saw
the Police. She reached her home at "S" only at 10.00 p.m. that
night (19-10-2021). PW-2 the Counsellor working with the District
Child Protection Unit deposed that, the victim narrated to her the
fact of sexual assault. She is not an eye witness. PW-4, a monk of
the monastery, who resided in a shed near the Respondent, along
with a friend of his PW-7 travelled in the Respondent's truck up to
Siliguri, on 18-10-2021 returned the same evening and reached
home, in the morning wee hours of 19-10-2021. The witness
deposed that the victim sought a lift and boarded the vehicle and
both the victim and the Respondent started talking to each other.
The Respondent requested the victim to accompany him up to
Siliguri which she agreed to. After completing their respective
errands at Siliguri, all who were in the truck, returned to their
place of stay in North Sikkim, where PW-4 and his friend left the
victim and the driver in the vehicle. His cross-examination would
extract the fact that the victim during the travel in the said vehicle
was comfortable and did not request the Respondent to drop her
anywhere either while going or returning. She also did not
complain about the Respondent on the to and fro journey. That,
there are six to seven rooms outside the said monastery, of which
one is occupied by the Respondent. PW-5 was the uncle of the
victim who had stopped the truck for her to return home. As the
victim did not reach home, PW-5 made efforts to
trace her by telephonically communicating with her relatives
despite which she could not be located. He also called the
Respondent several times on his phone but his calls were rejected.
The conduct of the Respondent raised his suspicions, accordingly
he directed the mother of the Prosecutrix to lodge a missing report
at the concerned Police Station. Following the report, the
Respondent was summoned to and apprehended at the Police
station. PW-7 the friend of PW-4 was in the same truck and his
evidence regarding the travel and return corroborated that of PW-
4. PW-9 stated that he saw a girl sleeping inside the room of the
Respondent at 11.00 a.m., as his room is located next to the room
of the Respondent. That, he was present there in his room the
previous night but he did not hear any cries for help from the girl in
the Respondent's room. The victim claimed to have reserved a
vehicle and reached "Z", however the evidence of PW-10 reveals
that the vehicle reservation was done by the Respondent. PW-10
had sent a private vehicle to pick her up and he was told that a girl
was taken from the monastery to the place "Z". PW-15 the doctor,
who examined the victim deposed inter alia as follows;
"...................................................... On her
per vaginal examination:-
Vulva within normal limits, no swelling, no
tenderness.
Vagina within normal limits, no discharge
noted.
Hymen ruptured (healed). There was no
external injuries, no struggle marks noted at the time
of examination. ..............."
The Prosecutrix/victim had given a history of sexual assault
by the driver "Lakpa Sherpa" on 19-10-2021. The examination of
the Respondent by PW-16, another doctor revealed that the
Respondent admitted to having sexual intercourse with the
Prosecutrix on 19-10-2021 at around morning time. PW-18 the
mother of the victim stated that during dusherra she had sent the
Prosecutrix to her father's house but she was informed that her
child was sent home in the truck. As she did not reach home, she
verbally lodged a report before the "S" town Police Station. Later
that evening her daughter reached home around 10.10 p.m.
Although she enquired as to where the victim had resided the
previous night, the victim did not disclose anything to her. PW-19
fortified the evidence of PW-10 that he reserved a taxi vehicle and
dropped a girl from the monastery to place "Z". PW-22 conducted
the investigation.
8. The Learned Trial Court after appreciating the evidence
on record opined that the Prosecutrix on reaching the monastery
went to the room of the Respondent and slept in a separate bed
but later the Respondent and she slept in one bed and indulged
voluntarily in sexual intercourse. On her return home although she
came across Police personnel, she failed to raise an alarm revealing
that the act was consensual.
9. Having meticulously perused the evidence of the
victim, we find no reason to differ from the evidence of the Learned
Trial Court as the victim travelled and traversed long distances in
the vehicle of the Respondent, without raising any alarm
whatsoever nor did she complain of the misconduct of the
Respondent to PW-4 and PW-7 her co-passengers. She not only
spent the night in the room of the Respondent where she did not
raise any alarm for help but she continued to remain there till
11.00 a.m. and returned home in the taxi reserved by the
Respondent for her. Evidently, it was only her mother who was
aggrieved with the disappearance of the victim which led to the
FIR.
10. In light of the foregoing discussions, we find no error in
the conclusion arrived at by the Learned Trial Court.
11. The impugned Judgment is upheld.
12. Appeal is dismissed and disposed of.
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
23-04-2025 23-04-2025
Approved for reporting : Yes
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