Sikkim High Court
Sushan Darjee (Hingmang) vs State Of Sikkim on 30 April, 2025
Author: Meenakshi Madan Rai
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
Dated : 30th 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.27 of 2024
Appellant : Sushan Darjee (Hingmang)
versus
Respondent : State of Sikkim
Application under Section 374(2) of the
Code of Criminal Procedure, 1973
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Appearance
Mr. Madan Kumar Sundas, Advocate (Legal Aid Counsel) for the
Appellant.
Mr. Yadev Sharma, Additional Public Prosecutor with Ms. Pema
Bhutia, Assistant Public Prosecutor for the Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The Appellant was charged with the offences of
impregnating a minor, PW-1, as a consequence of sexual assault,
under Section 5(j)(ii) of the Protection of Children from Sexual
Offences Act, 2012 (hereinafter, the "POCSO Act"). Secondly, for
repeatedly committing penetrative sexual assault on the child,
under Section 5(l) of the POCSO Act, and for having committed
aggravated penetrative sexual assault on the same child, knowing
her to be pregnant, under Section 5(q) of the POCSO Act. All
offences are punishable under Section 6 of the POCSO Act. He was
also charged under Sections 376(2)(n), 376(2)(h) and 376(3) of
the Indian Penal Code, 1860 (hereinafter, the "IPC"), for
commission of the same offences (supra). The Court of the
Learned Special Judge (POCSO Act, 2012), Gangtok, Sikkim, on
appreciation of the evidence on record, concluded in Paragraph 28
of the impugned Judgment, dated 30-07-2024, in ST(POCSO) Case
No.24 of 2021 [State of Sikkim vs. Sushan Darjee (Hingmang)] that;
the question whether the victim is a minor within the meaning of
Section 2(d) of the POCSO Act, 2012, is answered in the negative.
The Court also observed that on 13-05-2021 to 14-05-2021, when
the Appellant and the victim were in his cousin's house at Sang, he
could not be held guilty for rape as the victim was not a minor on
those dates and the acts were consensual. The Learned Trial
Court accordingly acquitted the Appellant from the above-
mentioned charges of the POCSO Act and the IPC. However,
invoking Section 222(2) of the Code of Criminal Procedure, 1973
(hereinafter, the "Cr.P.C."), the Appellant was convicted under
Section 376(1) of the IPC for the offence of rape, committed by
him, on the alleged victim on 12-04-2021. Vide the Order on
Sentence, dated 31-07-2024, the Appellant was sentenced to
undergo rigorous imprisonment, for a term of ten years, along with
a fine of ₹5,000/- (Rupees five thousand) only, under Section
376(1) of the IPC with a default clause of imprisonment.
2. Aggrieved by the said conviction and sentence the
Appellant has approached this Court. Learned Counsel for the
Appellant urged that in fact the Appellant and the victim were in a
romantic relationship. The Appellant was nineteen years at the
time of the offence, while the age of the victim could not be
ascertained from the Prosecution evidence furnished, although she
claimed to be only thirteen years of age. That, the sexual acts
between the Appellant and the alleged victim being consensual and
the minority of the victim's age not being proved, the Appellant
deserves an acquittal.
3. The Prosecution for their part conceded that, the age of
the victim was not proved but that did not do away with the fact of
the offence of rape, as it is the case of the victim that the sexual
assault was perpetrated on her sans her consent, hence the
Judgment and Order on Sentence requires no interference.
4. Having heard the rival contentions of Learned Counsel
for the parties, it is essential to refer briefly to the facts of the case
for clarity in the matter. On 14-05-2021, PW-2 the victim's father
lodged the FIR Exbt P3/PW-2, complaining that his elder daughter,
the victim, aged about fourteen years, was missing from their
village since 10.00 a.m. of 12-05-2021. The jurisdictional Police
station registered a case under Section 363 IPC against unknown
persons and endorsed it to the Sub-Inspector PW-12 for
investigation. On completion of investigation, Charge-Sheet was
submitted against the Appellant under Sections 363/376 of the IPC
read with Section 4 of the POCSO Act. Charges under the POCSO
Act and the IPC as detailed hereinabove were framed against the
Appellant, to which he pleaded "not guilty" and sought to be tried.
Twelve witnesses were examined by the Prosecution in a bid to
establish their case beyond reasonable doubt. To enable the
Appellant to explain the incriminating evidence appearing against
him, he was examined under Section 313 of the Cr.P.C. and his
responses recorded. The impugned Judgment and Order on
Sentence were then pronounced.
(i) Investigation brought to light that the Appellant and
the victim were students of the same school and in a romantic
relationship for about three years. That, on 12-04-2021 they had
sexual intercourse in an abandoned house near their school.
Sushan Darjee (Hingmang) vs. State of Sikkim 4
Suspecting, that she was pregnant, the victim conducted a self
pregnancy test on 23-04-2021 which gave a positive result for
pregnancy. Both panicked on account of the result and ran away
from home on 12-05-2021 and stayed in the house of the
Appellant's brother till 14-05-2021, in the same village. The
victim's mother PW-3 called them back and they returned home on
15-05-2021. In the meanwhile, the victim's father had lodged the
FIR Exbt P3/PW-2, dated 14-05-2021. The medical examination of
the minor victim revealed that she was pregnant. On 19-05-2021
she was evacuated to a Shelter Home where she suffered a
miscarriage.
(ii) While discussing the age of the victim, the Learned
Trial Court took into consideration the evidence of PW-9, Additional
Director-cum-Registrar of Births and Deaths Cell, Health and Family
Welfare Department, Government of Sikkim, who stated that the
date of birth of the victim was recorded as 10-07-2007 but her
birth was registered only on 29-05-2017 in their office. PW-9 was
not the concerned officer who had made the entries in the live birth
register and the identity of the concerned official was not known.
Reference was made to Section 13 of the Registration of Births and
Deaths Act, 1969, by the Learned Trial Court and it was observed
that since the registration of the victim's birth was delayed by ten
years the provisions of the act prescribing the necessities for
belated registration were not complied with. Exbt P-16/PW-9 the
page of the live birth register, revealed that the birth was
registered in May-June, 2017, without recording reasons in the
remarks column. It was also observed that the victim under cross-
examination mentioned that her parents had reduced her age while
recording her date of birth in the birth certificate and qualified it by
stating that the Appellant had tutored her, her statement taken
together with the above circumstances on belated registration did
not inspire the confidence of the Court. It was held that the
possibility of the victim's parents reducing her age, could not be
ignored. That, PW-5 the School Principal was unsure about the
correctness of the entry made in the school admission register
where her date of birth was shown as 10-07-2007. It was
observed that PW-5 at the time of the victim's admission was not
working in the concerned school and the victim had previously
studied in Kathmandu, Nepal, hence it would be fatal to rely on the
school records also.
(iii) While making these observations reference was made
to the decision of this Court in State of Sikkim vs. Girjaman Rai @
Kami and Others , wherein at Paragraph 15 it was held as follows;
"15. Date of birth is a question of fact which must
be cogently proved by leading evidence. The
allegation of sexual assault coupled with the proof of
minority of the victim drags an accused to the rigours
of the POCSO Act, 2012, which mandates a reverse
burden of proof. Therefore, it is absolutely vital to
prove the minority of the victim. The "best evidence
rule" must be necessarily followed while proving the
contents of a birth certificate."
(iv) Reliance was also placed by the Learned Trial Court on
the decision of this Court in Mangala Mishra @ Dawa Tamang @ Jack
vs. State of Sikkim , wherein it was held that if a person seeks to
rely on a particular date of birth and thereby to press a document
into service, he has to prove its authenticity, in terms of Section
32(5) or Sections 50, 51, 59, 60 and 61 of the Indian Evidence Act,
1872, by examining the person having special means or
knowledge, of date, time mentioned therein. The Learned Trial
SLR (2019) SIKKIM 266
2018 SCC OnLine Sikk 215
Court on the above rationale concluded that, the victim was not a
minor.
(v) We are inclined to accept the reasoning put forth by the
Learned Trial Court with regard to the age of the victim and that
the Prosecution has failed to prove that she was a child in terms of
Section 2(d) of the POCSO Act. As pointed out by the Learned
Trial Court, no reasons were advanced as mandated by law, for the
rather belated registration of the birth certificate of the victim viz.,
ten years after her birth.
(vi) The issue regarding the age of the victim having been
resolved, the question is whether the sexual acts between the
Appellant and the victim were consensual. The Learned Trial Court,
while relying on the evidence of the victim, observed inter alia at
Paragraph 15 of the assailed Judgment that, it is palpable from the
victim's statement in the first instance that, although she had
voluntarily accompanied the Appellant to the said abandoned
house, she had not consented to sexual intercourse. At Paragraph
16, it was observed that; the victim's unwillingness to have sexual
intercourse with the Appellant could be ascertained from her
deposition "..... where he forced me to have sex with him. I
refused as I told him as I was a minor and I was scared but he
insisted and told me we were boyfriend and girlfriend nothing will
happen as it was common amongst boyfriends and girlfriends ....."
The Learned Trial Court was of the view that this should have been
sufficient for the Appellant to understand that the victim meant
"no" and to force her by saying that it is common in a relationship
was to go against her will. It thus tantamounts to rape within the
ambit of the first and second descriptions of Section 375 of the
IPC. The Learned Trial Court while answering the connected
question, as to whether the Appellant raped the victim repeatedly
from 13-05-2021 to 14-05-2021 at his cousin's house at Sang,
observed that, as the victim was not a minor, the allegation that
the Appellant raped her repeatedly from 13-05-2021 to 14-05-
2021 was in the negative, the acts being consensual.
5. Having thus examined the observation of the Learned
Trial Court, pertaining to the rape committed by the Appellant on
the alleged victim, we cannot bring ourselves to agree with the
reasonings and therefore we revert to the evidence of PW-1.
According to her, after the Appellant took her to an abandoned
house near their school and forced her to have sex, she refused
and told him that she was a minor and was scared but he insisted.
After they had sex, she stopped menstruating. The fact that, she
did not seek help from any person or tell her friend or parents,
more especially her mother, about the incident, indicates that in all
probability she had consented to the act. On testing positive for
pregnancy she even agreed to the Appellant's suggestion to elope.
The circumstances are therefore revelatory of the fact that the
sexual acts were consensual. Consequently, we do not agree with
the findings of the Learned Trial Court that the act of the Appellant,
on 12-04-2021 was not consensual and the Appellant was guilty of
rape. On this count the observation of the Learned Trial Court
appears to be misconceived.
6. In view of the discussions that have emanated
hereinabove, we find that the Appellant deserves to be and is
accordingly acquitted of the offence under Section 375, punishable
under Section 376(1) of the IPC.
7. The Appeal stands disposed of on the above terms.
8. The Appellant be set at liberty forthwith.
9. The Jail Authorities shall however examine their
records to verify whether he is involved in any other matter before
such release.
10. Fine, if any, deposited by the Appellant in terms of the
impugned Order on Sentence, be reimbursed to him.
11. Copy of this Judgment be transmitted forthwith to the
Learned Trial Court for information along with its records.
12. Copy of this Judgment be forwarded to the Jail
Authority at the Central Prison, Rongyek, by e-mail for information
and necessary steps. A soft copy of the Judgment be also made
over to the Prisoner by the Jail Superintendent.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
30-04-2025 30-04-2025
Approved for reporting : Yes
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