Sikkim High Court
State Of Sikkim vs Rup Narayan Rai (Chamling) And Ors on 13 August, 2025
Author: Meenakshi Madan Rai
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
Dated : 13th August, 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.28 of 2024
Appellant : State of Sikkim
versus
Respondents : Rup Narayan Rai (Chamling) and Others
Appeal under Sections 378(1)(b) of the
Code of Criminal Procedure, 1973
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Appearance
Mr. Yadev Sharma, Additional Public Prosecutor with Mr. Sujan
Sunwar, Assistant Public Prosecutor for the Appellant.
Mr. K. T. Bhutia, Senior Advocate with Mr. Romit Gurung, Advocate
for the Respondents.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The Court of the Special Judge (POCSO Act, 2012),
South Sikkim, at Namchi, vide Judgment dated 30-06-2022, in
ST(POCSO) Case No.27 of 2020 (State of Sikkim vs. Rup Narayan Rai
(Chamling) and Others) acquitted the Respondent No.1 of the
following offences;
(a) under Sections 5(l) and 5(n), both punishable
under Section 6 Protection of Children from
Sexual Offences Act, 2012 (hereinafter, the
―POCSO Act‖);
(b) under Section 7 punishable under Section 8 and
under Section 9(l) punishable under Section 10 of
the POCSO Act;
(c) He was also acquitted of the offences under
Sections 376(2)(n), 376(3) and 354 of the Indian
Penal Code, 1860 (hereinafter, the ―IPC‖) by
extending to him the benefit of doubt.
(i) The Respondents No.2 and 3 who were charged under
Section 201 of the IPC and Respondent No.4 under Section 21(1)
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 2
of the POCSO Act were also acquitted of the offences that they
were charged with. Aggrieved, by the acquittals the instant Appeal
has been filed.
2. Prior to delving into the merits of the matter a brief
summation of the Prosecution case is essential. On 14-08-2020,
PW-2 the cousin of PW-1 (the victim), being her uncle's son, lodged
the FIR Ext-4, before the jurisdictional police station, complaining
that PW-1, who was studying in Class VI was entrusted to the care
of the Respondent No.1 for her education and lived in his house.
On 14-08-2020, the Respondent No.1 came to the house of PW-2
along with his wife Respondent No.2 and the minor victim PW-1 to
visit. Respondent No.1 and Respondent No.2 went for their
personal work elsewhere and were to pick up PW-1 later that day.
Having spent the day at the home of PW-2, PW-1 refused to return
with Respondent No.1 and Respondent No.2 in the evening. On
enquiry for her refusal, she told PW-2 that between 07-07-2020
and 08-07-2020 up to 12-08-2020, Respondent No.1 had touched
her inappropriately when she was alone in his TV room at his home
located village in ‗S' and also raped her about four to five times.
On 12-08-2020, she had again been raped by the Respondent No.1
i.e., two days before her visit to her family on 14-08-2020.
(i) The police station on receipt of the FIR, registered Case
No.20(08)2020, dated 14-08-2020, under Sections 6/10 of the
POCSO Act only against the Respondent No.1. On completion of
investigation, Chargesheet was submitted against the accused
persons as follows;
1. Rup Narayan Rai (Chamling), under Section 06/10 of
the POCSO Act, 2012;
2. Shreelal Gurung, under Section 212 of IPC;
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 3
3. Padma Kri, Chettri (Rai), under Section 201 IPC;
4. Damber Kr. Chettri, under Section 201 IPC;
5. Arun Kr. Pradhan, under Section 201 IPC; and
6. Upashna Rai, under Section 21 of the POCSO Act.
(ii) The Trial Court framed Charge against the Respondent
No.1 (Accused No.1 before the Trial Court) under Sections 5(l) and
5(n) both punishable under Section 6 of the POCSO Act, Section 7
punishable under Section 8 of the POCSO Act, Section 9(l)
punishable under Section 10 of the POCSO Act, Section 376(2)(n),
Section 376(3) and Section 354 of the IPC.
(iii) Charge was framed against the Respondent No.2
(Accused No.3 before the Trial Court) wife of Respondent No.1 and
Respondent No.3 (Accused No.4 before the Trial Court), under
Section 201 of the IPC individually.
(iv) Charge was framed against the Respondent No.4
(Accused No.6 before the Trial Court) daughter of Respondent No.1
under Section 21(1) of the POCSO Act.
(v) Charge was framed against one Shreelal Gurung
(Accused No.2 before the Trial Court), under Section 212 of the
IPC, which being exclusively triable by the Magisterial Court was
made over to the concerned Court.
(vi) No charge was framed against Arun Kumar Pradhan
(Accused No.6 before the Trial Court) lacking prima facie materials.
He was accordingly discharged.
(vii) The Respondent No.1 (A1), Respondent No.2 (A3),
Respondent No.3 (A4) and Respondent No.4 (A6) entered their
respective pleas of ―not guilty‖ and claimed trial. Trial commenced
with the Prosecution furnishing twenty-six witnesses. On closure of
the Prosecution evidence, each of the Respondents was afforded an
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 4
opportunity of explaining the incriminating evidence appearing
against them, by examination under Section 313 of the Code of
Criminal Procedure, 1973 (hereinafter, the ―Cr.P.C.‖). The
Respondent No.1 claimed that the allegations against him were
false and that he had not absconded as alleged at the relevant
time. He claimed total innocence and that he had been falsely
implicated due to his failure to extend necessary help to PW-4, to
protect his Certificate of Identification (COI) and to assist him
financially, upon which the entire family had conspired against him.
Respondent No.1 sought to and was permitted to examine four
witnesses in his defence. Respondents No.2 and 3 denied the
allegations made against them and claimed to have been falsely
implicated. Respondent No.4 stated that the victim had never
narrated anything to her regarding the instant matter and she was
falsely implicated in the case.
(viii) DW-1 to DW-4 were examined as witnesses for the
Respondent No.1 as sought by him.
(ix) The final arguments advanced by opposing Counsel
was heard and the Trial Court on appreciation of the entire
evidence or record acquitted all the Respondents as mentioned
hereinabove.
3. The following question was taken up for determination
by the Trial Court; Whether the Prosecution has been able to prove
the age of the victim (PW-1) and establish that she is a child as
described under Section 2(d) of the POCSO Act.
(i) Although, no other specific question for determination
was framed, it can be culled out from Paragraph 71 of the
impugned Judgment that, the Court considered whether the
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 5
Respondent No.1 had committed aggravated penetrative sexual
assault upon the victim, aged about thirteen years, touched her
body (squeezed her breasts) repeatedly with sexual intent and
thereby outraged her modesty. Whether, the Respondents No.2
and 3 intentionally gave false information to the police to screen
the Respondent No.1 from legal punishment. Whether, Respondent
No.4 failed to report the commission of the offences by Respondent
No.1 against the minor victim to the concerned local police or any
other authority.
(ii) The Trial Court then took into consideration the
evidence of PWs 1, 2, 4, 16, 17, 19, 22, 24 and 26. It was also
noted that PWs 3, 5, 7, 8, 12, 13; 14 were declared hostile by the
Prosecution. PWs 6, 9, 10, 11, 20, 21, 23 stated nothing to
support the Prosecution case. The Trial Court, while considering
the age of the victim, in Paragraphs 68 to 70 of the impugned
Judgment relied on the evidence of PW-24 Dr. Mukta Mukhia,
Medical Officer of the concerned Primary Health Centre (PHC), who
verified the Live Birth Register maintained at the PHC. The date of
birth of the victim as per her official records was found to be 09-
05-2007. It was observed that the Defence failed to demolish the
evidence of PW-24. The evidence of PW-18, Headmaster of the
school which the victim was attending was also taken into
consideration. He verified the details of the date of birth of the
victim from the School Admission Register, duly certifying that, she
was admitted to school in Class 1 in the year 2003 and her date of
birth was recorded as 09-05-2007. The Court thus concluded that
the victim was a minor at the time of the alleged incident. The Trial
Court after considering the Prosecution evidence opined that from
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 6
the discussions, authorities relied upon, circumstances of the case,
the contradictory evidence on record, the medical evidence and the
scientific evidence had all miserably failed to buttress the
Prosecution case. On the aforementioned grounds all the
Respondents were acquitted.
4. Learned Additional Public Prosecutor while narrating
the facts of the case before this Court, urged that the victim had
deposed that the last offence of penetrative sexual assault was
perpetrated on 12-08-2020. She was a minor at that time, her
date of birth being 09-05-2007. Relying on the Section 164 Cr.P.C.
statement of the victim, it was contended that, she had given
specific details of the incidents of sexual assault and apprised
Respondent No.4, who disbelieved her and failed to report the
matter to any authority. The victim's allegations have not been
demolished under cross-examination. That, the evidence of PWs 1,
2, 4, 9, 17, 19, 20 and 24 establishes that, the Respondent No.1
had committed the offence of penetrative sexual assault on PW-1.
The medical examination conducted by PW-17 indicated that there
was ―abrasion in the labia minora‖ of the victim about three to four
days old. The last incident having occurred on 12-08-2020 and the
victim having been examined on 16-08-2020, the injury connects
the offence to Respondent No.1. That, the Trial Court failed to
appreciate the sole testimony of the victim, who had unwaveringly
deposed that Respondent No.1 was the perpetrator of the offence.
It was further urged that the Respondent No.1 in his responses
under Section 313 Cr.P.C. to question nos.210, 212, 213, 278, 279,
280 and 281 statement, failed to explain the incriminating evidence
against him. That, the slightest form of penetration constitutes the
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 7
offence of penetrative sexual assault, this submission was
buttressed by the decision in Satyapal vs. State of Haryana1, Krishan
vs. State of Haryana2 and State of Rajasthan vs. N. K. The Accused3.
Garnering strength from Appabhai and Another vs. State of Gujarat4
Learned Additional Public Prosecutor contended that the Court
observed therein that, undue importance must not be attached to
minor discrepancies in the depositions. That, the Supreme Court in
State of Punjab vs. Gurmit Singh and Others has held that, the Trial
Court must be alive to its responsibility and be sensitive while
dealing with cases involving sexual molestations. If the evidence
of the Prosecutrix inspires confidence, it must be relied upon
without seeking corroboration of her statements in material
particulars. It was further contended that, the acquittals of
Respondents No.2, 3 and 4 lacked reasoning. The Trial Court erred
in trusting the alibi of DW-3 who deposed that, on 07-07-2020 the
Respondent No.1 was at a meeting in the SDF Headquarters and
not at the place of occurrence, as also on 12-08-2020 deposed by
DW-2. Ext D-6, the register of the parliamentary committee of the
SDF party meeting cannot be relied on as it lacks any independent
witness. That, the alibi of DW-2, relying on Ext D-5(a), the
―condolence resolution‖, dated 12-08-2020, in which Respondent
No.1 was alleged to be present on the death of a party supporter is
not buttressed by evidence. Respondents No.2 and 3 are said to
have caused disappearance of evidence, however no specific
arguments on this aspect were advanced. Respondent No.4 failed
to report the matter to anyone, although, PW-1 confided in her
(2009) 6 SCC 635
(2014) 13 SCC 574
(2000) 5 SCC 30
1988 (Supp) SCC 241
(1996) 2 SCC 384
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 8
about the acts of the Respondent No.1. Hence, the Judgment of
the Trial Court deserves to be set aside and all the Respondents
convicted of the offences charged with.
5. Learned Senior Counsel for the Respondents repelling
the arguments advanced by the Learned Additional Public
Prosecutor contended that, in the first place this is a harassive case
against the Respondents No.1, 2, 3 and 4 sans evidence
whatsoever of sexual assault. The evidence of PW-1 is rife with
contradictions. In her Section 164 Cr.P.C. statement, recorded on
19-08-2020, she specified that she had her first menstrual period
on 04-07-2020. The Respondent No.1 touched her inappropriately
on her private parts on 06-07-2020 and 07-07-2020. Contrarily, in
her evidence before the Court she failed to specify the dates of the
alleged offences and mentioned that, the first and second incidents
took place in the month of June, 2020, instead of July as alleged in
her previous statement to the Magistrate.
(i) In her Section 164 Cr.P.C. statement, she claimed that,
Respondent No.1 raped her on multiple occasions but before the
Court she claimed categorically that, he had committed penetrative
sexual assault on her on five occasions in his room.
(ii) In contradiction to the Section 164 Cr.P.C. statement of
PW-1, DW-1 deposed that, on 06-07-2020, Respondent No.1 was
present in the Court as a Complainant, in a case lodged by him and
the matter was taken up by the Court late in the day. This fact has
not been demolished under cross-examination, lending credence to
the fact that the victim had conjured up the dates and falsely
implicated the Respondent No.1.
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 9
(iii) In her Section 164 Cr.P.C. statement, PW-1 stated that,
the Respondent No.1 repeated the offence of penetrative sexual
assault on her on 12-08-2020, however DW-2 has deposed that on
12-08-2020 a condolence meeting was held for a party supporter
and Respondent No.1 was present therein, as fortified by Ext D-
5(a), the resolution adopted on 12-08-2020. Respondent No.1,
had stayed at the party office at Namchi, from around 09.30 a.m.
to 05.00 p.m., thereby revealing that Respondent No.1 was
elsewhere and not at the alleged place of the occurrence. There is
no evidence whatsoever against Respondents No.2, 3 and 4 for the
offences under which they were charged.
(iv) That, not one, but three doctors examined the victim
after the incident, while two doctors examined the Respondent
No.1. Their evidence failed to establish the Prosecution case of
sexual assault, including penetrative sexual assault. PW-15 the
Senior Psychiatrist, at the District Hospital, who examined the
victim on 16-08-2020, concluded that, the victim required no
active psychiatric intervention. Learned Senior Counsel urged that,
had the victim been subjected to penetrative sexual assault, she
would have been affected not only physically but mentally and
would have required psychiatric intervention. PW-16 the
Gynaecologist, examined the victim on 18-08-2020 and found that
she was menstruating, but found no vaginal injuries. The doctor
categorically opined that there were no clinical signs to suggest
recent or past sexual assault. Relying on the cross-examination of
PW-16, Learned Senior Counsel pointed out that as the alleged
victim was about thirteen years old and Respondent No.1 fifty-one
years, the disparity in their general physical and genital
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 10
development, would have resulted in rupture of the victim's
hymen, severe bleeding, tear of muscles and perhaps a need for
hospitalisation if there was penetrative sexual assault. These
circumstances were absent. PW-16 had opined that even minimal
or partial penetration could cause tear of the hymen. The victim's
hymen being intact, penetrative sexual assault is ruled out. PW-17
the other doctor, who examined the victim on 16-08-2020, also
found her hymen intact with no fresh tears or injuries in and
around the vagina. PW-24, the doctor who first examined the
victim, on 14-08-2020, found no tears or injury in the external
genitalia or in the vaginal region of the victim. Her urine
pregnancy test was negative. PW-17, on examining Respondent
No.1, found that he was capable of performing sexual intercourse,
but found no signs of recent sexual intercourse. The statements
made by the victim are belied by the medical examination of both
Respondent No.1 and the victim making the Prosecution case
doubtful. PW-17 obtained dry and wet vaginal swabs of the minor
victim, which were forwarded for forensic examination, however
the RFSL report emerged negative and failed to establish sexual
assault on the victim. Relying on Rahim Beg and Another vs. State of
U. P. , it was urged that the medical examination of the accused
showed no signs of sexual assault. Reliance was also placed on
Palvinder Kaur vs. State of Punjab . The victim in her deposition in
Court, purposely did not state the dates of the alleged offences
after being aware of the fact that, the Respondent No.1 in his
application for bail had specified that he was not at his residence
on 6th/7th July and 12th August, 2020, the dates on which PW-1
(1972) 3 SCC 759
(1952) 2 SCC 177
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 11
alleged that the sexual assaults had taken place. While arguing
that this Court ought not to interfere with the acquittal granted by
the Trial Court, reliance was placed on Chandrappa and Others vs.
State of Karnataka and on Union of India and Others vs. Sepoy Pravat
Kumar Behuria , where medical evidence did not support the
evidence of rape. Reliance was also placed on State of Sikkim vs.
Jigmee Bhutia and Shri Sajal Rai alias Adrian vs. State of Sikkim11.
That, no evidence had come to light against the other
Respondents. Hence, the Judgment of acquittal ought not to be
disturbed.
6. Learned Counsel for the parties were heard in extenso
and their submissions afforded careful consideration. We have also
perused the entire documents on record, examined the evidence
and perused the impugned Judgment. The questions that fall for
determination by this Court are;
1. Whether the Judgment of acquittal rendered by the
Trial Court is correct or whether the Prosecution had
in fact been able to establish the allegations of sexual
assault and penetrative sexual assault perpetrated by
the Respondent No.1 on PW-1.
2. It is also to be determined as to whether the
Respondents No.2 and 3 were guilty of the offences
under Section 201 of the IPC and;
3. Whether the Respondent No.4 was guilty under
Section 21(1) of the POCSO Act in terms of the
charge framed against her.
(i) While thus embarking on examining the merits of the
matter, in the first instance it may pertinently be noticed that, the
Supreme Court in Krishan Kumar Malik vs. State of Haryana12 held
that, to hold the accused guilty for commission of the offence of
rape, the solitary evidence of the Prosecutrix is sufficient, provided
(2007) 4 SCC 415
(2019) 10 SCC 220
SLR (2021) SIKKIM 467
SLR (2021) SIKKIM 181
(2011) 7 SCC 130
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 12
the same inspires confidence and appears to be absolutely
trustworthy, unblemished and should be of sterling quality.
Sterling quality of a witness is described by the Supreme Court in
Rai Sandeep alias Deepu vs. State (NCT of Delhi) which reads as
follows;
"22. In our considered opinion, the ―sterling
witness‖ should be of a very high quality and calibre
whose version should, therefore, be unassailable. The
court considering the version of such witness should
be in a position to accept it for its face value without
any hesitation. To test the quality of such a witness,
the status of the witness would be immaterial and
what would be relevant is the truthfulness of the
statement made by such a witness. What would be
more relevant would be the consistency of the
statement right from the starting point till the end,
namely, at the time when the witness makes the
initial statement and ultimately before the court. It
should be natural and consistent with the case of the
prosecution qua the accused. There should not be any
prevarication in the version of such a witness. The
witness should be in a position to withstand the cross-
examination of any length and howsoever strenuous it
may be and under no circumstance should give room
for any doubt as to the factum of the occurrence, the
persons involved, as well as the sequence of it. Such
a version should have co-relation with each and every
one of other supporting material such as the
recoveries made, the weapons used, the manner of
offence committed, the scientific evidence and the
expert opinion. The said version should consistently
match with the version of every other witness. It can
even be stated that it should be akin to the test
applied in the case of circumstantial evidence where
there should not be any missing link in the chain of
circumstances to hold the accused guilty of the
offence alleged against him. Only if the version of
such a witness qualifies the above test as well as all
other such similar tests to be applied, can it be held
that such a witness can be called as a ―sterling
witness‖ whose version can be accepted by the court
without any corroboration and based on which the
guilty can be punished. To be more precise, the
version of the said witness on the core spectrum of
the crime should remain intact while all other
attendant materials, namely, oral, documentary and
material objects should match the said version in
material particulars in order to enable the court trying
the offence to rely on the core version to sieve the
other supporting materials for holding the offender
guilty of the charge alleged."
(2012) 8 SCC 21
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 13
(ii) In State of Himachal Pradesh vs. Raghubir Singh14, it was
held that there is no legal compulsion to look for corroboration of
the evidence of the Prosecutrix before recording an order of
conviction. Evidence has to be weighed and not counted and there
ought to be no circumstance which militate against her veracity.
This view was reiterated by the Supreme Court in Wahid Khan vs.
State of Madhya Pradesh .
(iii) That having been said, it is now a well settled legal
proposition that when minor contradictions arise in the evidence of
the Prosecutrix, the Courts should examine the broader
probabilities of a case and not get swayed by such minor
contradictions or insignificant discrepancies which are not fatal in
nature, to throw out an otherwise reliable Prosecution case.
Nevertheless if for some reason the Court finds it difficult to place
implicit reliance on her testimony, it may look for evidence which
may lend assurance to her testimony [See Gurmit Singh (supra)].
(iv) The settled principles of law having thus been extracted
supra, the object now is to winnow the chaff from the grain to
arrive at the truth of the testimony of the Prosecution witness.
(v) The age of the victim is not in dispute, hence a prolix
discussion on this aspect is not necessitated, suffice it to notice
that the victim in her evidence before the Court stated that she
was fourteen years old. Exbt-2 her birth certificate was furnished
by the Prosecution as proof of her age. PW-24, issued Exbt-31,
verification report regarding the birth of the victim wherein she
stated that the date of birth of the victim was registered on 26-05-
2007 in the original births record register of the concerned PHC,
(1993) 2 SCC 622
(2010) 2 SCC 9
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 14
indicating her date of birth as 09-05-2007. Her evidence having
been tested under cross-examination and remained undecimated,
we find that the date of birth of PW-1 has been duly proved. We
need dwell no further on this point.
7. With regard to the evidence of PW-1, the victim, her
statement under Section 164 of the Cr.P.C. Ext-1 was recorded on
19-08-2020. Under cross-examination she asserted that Ext-1 in
two pages was her statement recorded by the Judge. Before
proceeding further on this facet, it may be clarified that the
statement made under Section 164 of the Cr.P.C. may be used to
corroborate or contradict a statement made in the Court in the
manner provided by Sections 145 and 157 of the Evidence Act but
under no circumstance can it be treated as substantive evidence.
(i) Section 145 of Evidence Act reads 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."
Section 145 of the Evidence Act gives the accused the right
to cross-examine the witness, on previous statements made by
him and reduced into writing, when the previous statements are
relevant to the matters in issue. The object of the provision is to
afford reasonable opportunity to the witness to explain his previous
statement, after his attention has been drawn to the specific
portions of his previous statement, which are sought to be
contradicted or corroborated, in a fair and reasonable manner and
not for the purpose of mere form. When the witness is questioned
about every material passage in his previous statement, point by
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 15
point, there is substantial compliance with the requirement of
Section 145 of Evidence Act. As far back as in 1952 in Bhagwan
Singh vs. The State of Punjab the Supreme Court while elaborating
on the second limb of Section 145 of the Evidence Act extracted
hereinabove, held that, if it is intended to contradict the witness,
his attention must be called to those parts which are to be used for
the purpose of contradicting him. It was further held that, if the
witness denies having made any statement which is inconsistent
with his testimony in Court, the latter testimony would not be
vitiated, until the cross-examiner proceeds to comply with the
procedure prescribed, in the second limb of Section 145 of the
Evidence Act. The credit of a witness can be impeached by proof of
any statement which is inconsistent with any part of his evidence in
Court. At the same time, reading out the entire Section 164 Cr.P.C.
statement to the witness and asking what he had to say with
regard to the entire statement is not in compliance with the
provision of Section 145 of the Evidence Act.
(ii) In V. K. Mishra and Another vs. State of Uttarakhand and
Another , a three Judge Bench of the Supreme Court observed as
follows;
"19. Under Section 145 of the Evidence Act
when it is intended to contradict the witness by his
previous statement reduced into writing, the attention
of such witness must be called to those parts of it
which are to be used for the purpose of contradicting
him, before the writing can be used. While recording
the deposition of a witness, it becomes the duty of
the trial court to ensure that the part of the police
statement with which it is intended to contradict the
witness is brought to the notice of the witness in his
cross-examination. The attention of witness is drawn
to that part and this must reflect in his cross-
examination by reproducing it. If the witness admits
the part intended to contradict him, it stands proved
and there is no need to further proof of contradiction
AIR 1952 SC 214
(2015) 9 SCC 588
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 16
and it will be read while appreciating the evidence. If
he denies having made that part of the statement, his
attention must be drawn to that statement and must
be mentioned in the deposition. By this process the
contradiction is merely brought on record, but it is yet
to be proved. Thereafter when investigating officer is
examined in the court, his attention should be drawn
to the passage marked for the purpose of
contradiction, it will then be proved in the deposition
of the investigating officer who again by referring to
the police statement will depose about the witness
having made that statement. The process again
involves referring to the police statement and culling
out that part with which the maker of the statement
was intended to be contradicted. If the witness was
not confronted with that part of the statement with
which the defence wanted to contradict him, then the
court cannot suo motu make use of statements to
police not proved in compliance with Section 145 of
the Evidence Act that is, by drawing attention to the
parts intended for contradiction."
(iii) Section 157 of the Evidence Act reads as follows;
"157. Former statements of witness may be
proved to corroborate later testimony as to same
fact.─In order to corroborate the testimony of a
witness, any former statement made by such witness
relating to the same fact, at or about the time when
the fact took place, or before any authority legally
competent to investigate the fact, may be proved."
This Section is based on the principle that if there is
consistency between the previous statement and present
statement of a witness it may be considered a ground for believing
him. The two things which are essential for Section 157 of the
Evidence Act to apply are; The witness should have given
testimony with respect to some fact. The second is that he should
have made a statement earlier with respect to the same fact at or
about the time, when the fact took place or before any authority
legally competent to investigate the fact. 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 or contradicting it, the reason being that
the Defence has had no opportunity of cross-examining the
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 17
witnesses whose statements were recorded under Section 164
Cr.P.C. [See R. Shaji vs. State of Kerala (2013) 14 SCC 266)].
(iv) On careful perusal of the evidence of the victim it is
seen that the second limb of Section 145 of the Evidence Act has
not been complied with either by Prosecution to indicate
corroborative evidence as urged in the arguments of Learned
Additional Public Prosecutor or to prove contradictions as per the
contentions of Learned Senior Counsel for the Respondents. The
Trial Court was therefore in error in considering Ext-1, while
discussing the evidence of PW-1. Hence, there is no requirement
to consider this facet of the arguments advanced by both Learned
Court. It is reiterated here that, evidence under Section 164 of the
Cr.P.C is not substantive evidence.
(v) The cross-examination of PW-1 extracted the following
facts; She was residing in the house of Respondent No.1 for the
last three and half years along with her brother. The Respondent
No.1 had four daughters, of whom the youngest was of the victim's
age and a student of Class V. The driver and the domestic help of
Respondent No.1 used to be in the same house, the whole day and
return to their homes in the evening. The witness also admitted
that from the last week of March, 2020, there was a complete
lockdown due to COVID-19 Pandemic, hence all the family
members of Respondent No.1 used to be at home most of the time.
Her academic performance improved once she started living at the
house of Respondent No.1 and she was awarded a prize for 100%
attendance when she was in Class VIII. She along with
Respondent No.1 and his family members would sit down for family
prayers in the morning and evening and Respondents No.1 and 2
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 18
used to teach them good moral values and discipline. Apart from
that, Respondent No.1 after completion of prayer used to touch the
victim's feet as well as those of his daughters. Respondent No.1
had a friendly and loving nature, used to play with them, inspire
them with positive attitude and encourage them to participate in
extra-curricular activities. Two children used to come to the house
of the Respondent No.1 to play with them on a daily basis and used
to be in the house during the whole day and would return home in
the evening. Sometimes both the children would spend the night
in the house of Respondent No.1.
(vi) She further deposed that, most of the time the family
members, the driver and domestic help used to be in the house of
Respondent No.1, who would not allow any of his family members
to go out of the house, owing to the pandemic lockdown. Online
classes were attended by the victim and the daughters of
Respondent No.1 while Respondent No.2 a teacher, used to take
classes online. The victim admitted to being aware that,
Respondent No.1 was an active member of the SDF political party
and would remain outside his house most of the time. In a
statement that would have bearing to the instant matter the victim
admitted that Respondent No.1 had a house in another place viz.,
―N‖, where he used to mostly reside during the lockdown period.
As and when he used to return home to ―S‖, party workers and
guests used to visit with whom he remained pre-occupied. The
witness during cross-examination volunteered to state;
"...................................................................................
............ even when the visitors were at home, the
accused No.1 used to come to his room where I would
be watching TV at intervals, close the door and
commit penetrative sexual assault upon me. ...........
......................................................................."
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 19
(vii) She also stated that, she along with the daughters of
Respondent No.1 had a separate common room where they slept
and the room of Respondent No.1 was adjacent to the sitting room,
where Respondent No.1 entertained his guests. On the day when
PW-1 was taken home by Respondent No.1, Respondent No.2 his
wife and his youngest daughter, she was singing and playing
―Antakshri‖ in the vehicle and she was aware that she would be
picked up from her house by Respondent No.1 and his family on
their way back to their home at ―S‖. She admitted that, she had
even called Respondent No.2, twice over her phone and enquired
as to what time they would be picking her up, from her home, to
which Respondent No.2 responded that she would call the victim
herself and inform her when they would be returning to pick her
up. She used to help Respondent No.2 in their home at ―S‖ and
most of the time remained with her. Initially, according to her, she
was medically examined by one doctor at the District Hospital and
half an hour later one male doctor also examined her.
(viii) We find that the allegations pertain to the period of the
COVID-19 Pandemic and the consequent persistent lockdowns that
followed. We find that during such periods, the Respondent No.1
was living in a different home most of the time. He was therefore
away from the home, where the victim was living with his wife and
children. Respondent No.1 apparently was involved in a political
party and preoccupied in its workings, admittedly with party
workers frequenting his house. She claims to have been sexually
assaulted for the first time in the TV room but again allegedly
ventured into the TV room the next day, when it would be normal
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 20
in the course of human nature to avoid places where injury,
physical or mental had been perpetrated on her.
(ix) In light of the evidence given by PW-1 she appears to
have had a wholesome well rounded and disciplined life in the
house of Respondents No.1 and 2, added to which it was her
admission that she had called up Respondent No.2 to enquire when
they would pick her up that day. In wake of circumstances
discussed, the voluntary statement of the victim extracted
hereinabove appears to us to be fraught with improbabilities
regarding her allegations of sexual assault and penetrative sexual
assault. Her statements of sexual assault therefore have to be
considered with circumspection, more especially considering the
humanly impossible circumstance of Respondent No.1 raping her,
even when he had visitors in his home and would be engaged with
them.
(x) As held in Gurmit Singh (supra) when the Court finds it
difficult to place implicit reliance on the victim's evidence we may
look into the medical evidence to examine whether it supports her
case.
(xi) It is worth noticing and rather surprising that, not one
doctor but three doctors carried out the physical examination of
the victim, while one Psychiatrist made an assessment of her
mental health.
8. It may be recapitulated here that, the FIR Ext-3, was
lodged on 14-08-2020 and the GD entry was made at 1955 hours
at the jurisdictional police station. PW-1 (the victim) was
forwarded for medical examination to the medical officer posted at
the jurisdictional PHC that same evening. PW-24 is the medical
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 21
officer who conducted the first medical examination of PW-1. She
deposed that on 14-08-2020, at around 0200 hours, the minor
victim was forwarded from ―M‖ police station for her medical
examination. (Pausing here, this is a technically erroneous
statement as at 0200 hours it would already be 15-08-2020).
According to the doctor, the victim was accompanied by one female
police personnel and a female guardian. She was brought with an
alleged history of having been sexually assaulted by the
Respondent No.1 of ―S‖ on various occasions since July, 2020, the
latest being on 12-08-2020 at his residence. PW-24, Dr. Mukta
Mukhia, deposed as follows;
".......................................................................
On 14.08.2020, at around 0200 hours, minor
victim was forwarded from Melli Police Station for her
medical examination. One female police personnel
and the female guardian of the minor victim had also
accompanied her with the allegedly history of having
been sexually assaulted by R** N****** C*******
of ‗S', South Sikkim (name of place concealed) on
various occasions since July, 2020, latest being on
12.08.2020 at his residence. She was forwarded for
medical examination to ascertain the following:-
1. Whether any sign of recent penetrative
sexual assault; (sic.)
2. Whether any injuries sustained by her on her
body;
3. Whether hymen was intact or not and also to
provide vaginal swab (wet and dry) for further
investigation.
4. Any other information from your end useful
for investigation.
During examination, the victim gave the history
that she was assaulted for five to six times since July
by her uncle. She also gave history that her uncle
used to grab her breasts and squeeze them. She gave
history of penetration during such incidents. Last
such incidents according to her took place on August
12th. She also gave history that she changed and
washed her clothes following the incident. She also
gave history of washing her private areas following
the incident on August 12th on the same day. She
reports that condom was not used by her uncle. No
history of vaginal bleeding following the incident
according to her. Consent was taken before
examination. Mark of identification - two moles
below the lips on the cheek. Menarche - July 4th at
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 22
13 years of age. Last Menstrual Period - 4th July,
2020.
.......................................................................
No fresh external injuries seen on head to toe
examination. Nail clipping, vaginal swabs and
innerwear (white with black dots) handed over
(sealed) to Uden Bhutia (Constable).
On her examination, no tears or any injury
seen in the external genitalia and labia minora,
majora, introitus, hymen, perineum. Pubic hair not
developed. Urine Pregnancy Test done at Melli PHC
came negative.
I also advised for HBsAg, VDRL, HIV
investigation. I also advised for Obstetrics and
Gynaecology and Psychiatric consultation. I also
opined that conclusive opinion cannot be given
without above investigation and the investigation by
forensic expert.
Exhibit-22, shown to me in the Court today, is
the requisition sent by I.O. of the case and Exhibit-23,
shown to me in the Court today, is the medical report
of the minor victim prepared by me wherein Exhibit-
23(a) is my signature.
...................................." [emphasis supplied]
She elucidated in her cross-examination as follows;
".................. It is true that in the history given
victim girl alleged to have been assaulted about five -
six times since July by her uncle. It is true that she
did not give the dates of assault. It is true in the
history given by the victim girl she said that every
time as and when her uncle grabbed her breasts and
squeezed them, he subjected her to penetrative
sexual assault. It is true that according to the history
given by the victim girl, grabbing of the breasts,
squeezing of the breasts and penetrative sexual
assault used to go together. ................................. It is
true that my examination was from head to toe of
the girl to ascertain whether there was any marks of
squeezing or grabbing of breasts etc. However, I did
not notice any injuries over the body of the victim
indicating the presence of any application of force,
restraint, torture, squeezing or grabbing. It is true
during examination of the victim I did not find any
signs of redness (inflammation), swelling, bruise
over the external genitalia, the inner thighs. It is
true that there was no tenderness over the genitalia,
inner thighs during the examination of the victim. It
is true that as advised by me all examinations of the
victim were done by psychiatrist, gynaecologist and
forensic expert. As per the report of the RFSL issued
by Prem Kumar Sharma, Junior Scientific Officer,
RFSL, Saramsa shown to me in the Court today, blood
or semen was not detected in exhibit number BIO-
569(V), BIO 569(VI) and BIO-569(A). It is true
according to RFSL report, test of the swabs taken
were all negative. It is true in case of grabbing and
squeezing, there remains bruise or reddish marks on
the body for quite long time. It is not a fact that I
am deposing falsely." [emphasis supplied]
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 23
(i) On physically examining Respondent No.1, PW-24, Dr.
Mukta Mukhia, found no signs of recent sexual intercourse on
Respondent No.1 nor were there signs of fresh injuries, bite mark
or scratches present in his body, although he was found capable of
performing sexual intercourse. PW-24 after considering the RFSL
report, Gynaecological examination report, forensic investigation
report and lab investigations was of the view that the incidents of
alleged assault could not be ruled out.
(ii) On 16-08-2020, PW-26, the IO, made an application to
the District Medical Superintendent (DMS), of the concerned
District Hospital for providing expert opinion as PW-24 (supra) had
advised OBG consultation. Upon such application, PW-17 the
second medical officer, who incidentally was also not a
Gynaecologist, examined the victim on 16-08-2020. PW-17, Dr.
Pratik Rasaily, identified Ext-13 as the report prepared by him
where he noted as hereunder;
".......................................................................
On 16.08.2020, I received an application on
behalf of District Medical Superintendent, District
Hospital Namchi to make the arrangement for the
examination of the minor victim ..................... .
On the same day, at 1600 hours, I examined
the minor victim. Victim stated that her uncle R**
N****** C******* touched her breasts and
squeezed them on 6th or 7th of July. She also stated
that he did it more than one time and on later date.
She further stated that after two such incidents she
was forced to have sexual intercourse six to seven
times from July to August, 2020 last one being on
12th of August, 2020. She stated that her uncle R**
N****** C******* used to have intercourse with her
sometimes on bed and sometime on the wall of the
house.
On general examination, pulse - 84 per
minute, BP - 110/80 and rest of the general
examination was found to be normal.
On examination of private parts, (1) vulva - no
fresh injuries/scar seen, (2) labia majora - no fresh
injury/old scar seen, (3) labia minora - abrasion
approx. 3 to 4 days old, 1 cm in length noted on left
side, (4) hymen - no fresh tear and old scar noted,
hymen intact, (5) fourchette - no injuries noted, (6)
on external examination of body - no injuries noted.
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 24
I also obtained two dry and wet vaginal
samples of the minor victim and handed over the
same to the accompanying police personnel.
...................................." [emphasis supplied]
Under cross-examination he deposed as follows;
".................... It is true that abrasion and
injury of hymen are visual and can be seen with
naked eyes and no special equipment or examination
is required. It is true that abrasion is a superficial
injury which can be caused by fingernail, accidental,
pin prick, thorn. It is true that in the villages people
are not very conscious about genital hygiene which
may cause irritation to vital organs (vagina) and
pricking of the irritation by fingernail can cause
abrasion. It is true that in my report I have
mentioned that the abrasion was three or four days
old that means it must have occurred on 13th or 14th
August, 2020. ........................ It is true that I have not
mentioned the end of the labia minora where the
abrasion was located. It is true that the
measurement of the abrasion mentioned in my report
marked Exhibit-13 and 14 is based on approximation.
It is true that I did not measure the abrasion with an
inch tape. It is true that I have not mentioned the
colour of abrasion. It is true the age of the abrasion
was assumed by me. It is true if the abrasion is fresh
the colour would be red, if the abrasion is 12 to 24
hours the colour would be bright red scab as lymph
and blood dries up leaving a bright red scab, if the
abrasion is 2 to 3 days old colour would be reddish
brown scab, if the abrasion is 4 to 7 days old colour
would be dark brown to brown black scab, if the
abrasion is more than seven days old scab dries and
skins fall off leaving depicmented area underneath
which gradually gets pigmented. It is true that in my
report I have not given the colour of the abrasion to
show the age of the abrasion. It is true that abrasion
if any is seen has to be measured with inch tape. It is
true that since I did not measure the abrasion and
also did not give the colour, the abrasion mentioned in
the report could be remnant of the (menstrual) blood
clot which had adhered to in the labia minora and was
mistaken as abrasion by me. It is true that there was
no injury at all in and around vagina to suggest
forceful sexual intercourse as alleged by the victim
girl. My opinion was withheld till RFSL Report was
available.................................."
(iii) On the same day, 16-08-2020, the minor victim was
forwarded to the Neuropsychiatrist PW-15, Dr. Bishnu Sharma, for
consultation. The evidence of the Neuropsychiatrist revealed as
follows;
".......................................................................
Presently, I am posted as M.D. Neuropsychiatric
(sic.) at District Hospital, Namchi since May 2019.
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 25
On 16.08.2020, minor victim ―PT‖ (name
concealed) was forwarded for neuropsychiatric
consultation on Monday OPD by the Medical Officer Dr.
Pratik Rasaily. On the same day, I conducted the
psychiatric consultation of the minor victim. The
patient was reviewed and examined. Patient was well
oriented to time, place and person. Sleep was normal.
Appetite was normal. Bladder was also normal. No
active psychiatric intervention was required.
......................................................................."
Under cross-examination PW-15 opined as follows;
"It is true that in my report Exhibit-8A(a) I
have not indicated/mentioned about the demeanor of
the victim girl whether she was talkative, shy,
nervous, fear to face the people etc. It is true that if
the child keeps on changing her statement that is the
indication that the child is prone to telling lie. It is
true that age till eighteen is critical age. The children
falling under this age group get excited and makes
childish statements without thinking the serious
consequences. It is true that children falling under
this group are prone to make serious allegations
against others without realizing the consequences of
their allegations. The children falling under this group
may or may not suffer from hallucination depending
on hormonal changes and environment factors. It is
true that the characters of these children depend on
the environment from where they have come and
where they are living. It is true that children having
broken family have disturbed mind and may make
serious allegations without realizing the
consequences. It is true in the broken family the
children imitate the behaviour of their parents and
use filthy languages as normal languages. The
children also have the knowledge of physical
structure, vital organs and use of the same. It is not
a fact that I am deposing falsely."
(iv) PW-26, the IO, on 18-08-2020, filed another requisition
to the Medical Superintendent of the District Hospital requesting
expert opinion as per the advice of PW-24 for OBG consultation.
(v) The victim was again examined by PW-16, Dr. Rajesh
Kharel, the Gynaecologist, at the District Hospital. While
identifying Ext-10 as the medical report pertaining to the victim
prepared by him, he deposed that;
".......................................................................
On the same day i.e. on 18.08.2020, at around
1550 hours, I medically examined the minor victim
after taking the consent of one Shanti Chettri of Child
Care Institute, Ravangla.
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 26
During my examination, I found the general
and systemic examination were normal. No marks of
resistance or injuries noted on any part of the body.
On local examination, she was menstruating at that
time. The examination of labia majora, minor,
fourchette - no injuries seen. Hymen appeared
intact. There were no fresh or old injuries noted.
On my opinion, there were no clinical signs to
suggest recent or old sexual assault. Since the results
of vaginal swabs were awaited, the final opinion was
deferred.
......................................................................."
His cross-examination revealed as follows;
"........................... It is true that hymen is
visible on external examination and no special
equipment is required for the examination of the
hymen. It is true that because of disparity in the age
and in their general body features and genital
development there was bound to be rupture of
hymen, severe bleeding, tear of muscles and it
becomes minimal hospitalization and operation also
could have been necessary for the repair of the
hymen. It is true that even minimal/partial
penetration would cause tear of hymen. It is true
that abrasion is a superficial injury. Abrasion can be
caused by fingernail, accidental, pin prick, thorn. It is
true in villages people are not so conscious about
genital hygiene which caused irritation and the girls
may rub the irritation by finger causing abrasion. It is
true the history given was that victim was subjected
to sexual assault (penetrative) with force on 6th July
and last episode was on 12.08.2020. It is true that
no marks of resistance or injuries were noted by me
on any part of the body. It is true on my examination
labia majora, minora, fourchette were found intact,
further hymen was also found intact. No fresh or old
injuries were seen in and around the vagina. It is
true on the basis of examination and findings I gave
my opinion that there was no clinical signs to suggest
recent or old penetrative sexual assault. .................."
(emphasis supplied)
(vi) Having thus carefully considered the evidence of the
victim and the doctors, although it is her specific claim that, she
was subjected to penetrative sexual assault and sexual assault, the
medical evidence does not fortify such allegations.
(vii) In Modi A Textbook of Medical Jurisprudence and
Toxicology - Twenty Fourth Edition - Justice K Kannan -- Lexis Nexis, at
Page 667, it has been explained that if a girl had struggled and put
up resistance at the time when she was raped, she would have
received some injuries on her buttocks, hips, back, elbow, and
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 27
thigh. Medical evidence is valuable for proving the presence or
absence of marks of struggle. The presence of marks of struggle
on the body and clothes, and marks of injury on the person,
particularly the private parts, would be evidence supporting the
allegation of rape. However, we are alive to the settled law and
medical jurisprudence that absence of marks of resistance is not a
conclusive factor to disbelieve a case of rape.
(viii) That having been said, the medical evidence of the
three doctors, are categorically indicative of the fact that there
were no injuries on any part of the person of the victim, including
her genital. PW-16 specified that there were no injuries even on
the labia minora and PW-17 having deposed that he found an
abrasion of 1 centimetre in length in the labia minora, aged about
three to four days, under cross-examination admitted that the age
of the abrasion was assumed by him. Admittedly, he had not given
the colour of the abrasion to indicate its age. He further admitted
that the abrasion could be the remnant of menstrual blood clot,
which had adhered to the labia minora and was mistaken as
abrasion by him, bringing to naught the argument of the Additional
Public Prosecutor on this facet. PW-24 had also seen no such
abrasion on the labia minora of the victim on her examination. The
forensic report of the Junior Scientific Officer found no blood or
semen in the articles forwarded to him. In any event, this requires
no consideration as neither the articles nor the scientist were
brought before the Court. These facts were only brought out in the
evidence of the IO PW-26.
(ix) It is explained in Modi A Textbook (supra) that, it is
always desirable that the victim of rape and the perpetrator should
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 28
be medically examined as quickly as possible. In the instant case,
evidence reveals that the victim was examined the same night
after the FIR was lodged with the allegation that she was last raped
on 12-08-2020. In Modi A Textbook (ibid), at Page 668, while
discussing the consequence of sexual assault it has been explained
that;
"...............................................................................
(3) Bruising and laceration of the external genitals
may be present with redness, tender swelling and
inflammation.
(4) In nubile virgins, the hymen, as a result of
complete sexual intercourse, is usually lacerated,
having one or more radiate tears, (more so in the
posterior half), the edges of which are red, swollen
and painful, and bleed on touching, if examined within
a day or two after the act. These tears heal within
five or six days and after eight to ten days, become
shrunken and look like small tags of tissue. Frequent
sexual intercourse and parturition completely destroy
the hymen, which is represented by several small
tags of tissue, which are called carunculae hymenealis
or myrtiformes.
.................................................................................................
In girls under 14 years of age, the vaginal orifice is
usually so small that it will hardly allow the passage
of the little finger through the hymen. It is often
difficult to distinguish between an indentation in a
fimbriated hymen and a tear, unless the hymen is
stretched by a finger tip, glass rod.
The fourchette and posterior commissure are not
usually injured in cases of rape, but they may be torn
if the violence used is very great. The extent of injury
to the hymen and the genital canal depends upon the
degree of disproportion between the genital organs of
both the parties and the violence used on the female.
In small children, the hymen is not usually ruptured,
but may become red and congested along with the
inflammation and bruising of the labia. If
considerable violence is used, there is often laceration
of the fourchette and the perineum.
When grown-up virgin girls, unmarried or married
women, offer resistance, marks of violence, such as
bruises and scratches of fingernails may be found on
the external genitals, perineum, abdomen, chest,
back, limbs, neck and face. ..........................
................................................................................................."
(x) It emerges with no doubt that physical injuries were
not found on the victim as deposed by PWs 16, 17 and 24, which
ought to have been sustained by her in a case of complete
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 29
penetrative sexual assault, considering her tender age, PW-15, the
Neuropsychiatrist, who examined the victim opined that the victim
was not in need of professional psychiatric intervention. In our
considered view this evidence also buttresses the lack of physical
injuries and thereby her stable mental condition with no signs of
trauma or distress as would otherwise be expectedly found on a
minor victim of sexual assault.
(xi) Modi A Textbook (ibid) delineates that, the victims of
rape may suffer from shock and post traumatic stress, disorder,
they need professional psychological help. The medical officer
should be ready to offer assurance to the victim or her parents. In
the instant case, however PW-15 not find any rape trauma
syndrome on the victim and PW-1 herself admitted under cross-
examination that when Respondent No.1 and his family were taking
her in his vehicle to drop her home, she was singing along with his
youngest daughter and playing ―Antakshri‖, which is revelatory of
her normal mental status, leading to doubts about the veracity of
her allegations of sexual assault and her evidence. The
Prosecution, it may be mentioned has relied only on the evidence
of PWs 1, 16, 17 and 24.
(xii) PW-2 the Complainant claims to be the cousin of the
victim, being her uncle's son. He merely lodged the complaint on
being told by the victim that, Respondent No.1 ―committed rape
upon her‖. His cross-examination extracted the fact that they had
submitted a written FIR to the officer in charge, which was not
found in the case records and subsequently Ext-3 was written by
one of their uncles. He admitted ".....................It is true that Nabin
Ashang have been directed to scribe the FIR by one SI
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 30
Madam..............". Admittedly, the ―domicile‖ of his father was
cancelled when he was actively involved in politics. He denied
having conspired against Respondent No.1 and his family.
(xiii) PWs 3, 5, 7, 8, 12, 13 and 14 turned hostile and
despite careful perusal of their evidence, no testimony could be
culled out as being supportive of the Prosecution case.
(xiv) On consideration of the evidence of PW-4 the
emergence of a new story is detected as PW-4 the father of PW-2,
states that, he received a call from Respondent No.1, who told him
that he had beaten the victim with a stick and after he had
dropped her at her home she was not willing to return, he thus
requested PW-4 to advise her to return. He then called his
younger son over the phone and enquired as to why the victim was
not willing to return, to which he was informed by his son PW-2
that, the victim was sexually assaulted by Respondent No.1. It is
also seen that PW-4 has claimed that Respondent No.1 offered to
pay around 6 to 7 lakhs to the family of the victim to settle the
matter. These new facts pertaining to beating of victim and her
reluctance thereby to return and the offer of money, are seeing the
light of day for the first time, as it was not mentioned in the FIR or
in the witness's statement during investigation and therefore
deserve to be and are disregarded.
(xiv) DW-1 vouched for the fact that on 06-07-2020, the
Respondent No.1 was at a Court, where he was examined as the
Complainant in a Criminal case, and his matter found listed almost
at the end of the causelist. His evidence was not decimated under
cross-examination. DW-2 testified that on 12-08-2020, the date
on which Respondent No.1 is alleged to have committed
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 31
penetrative sexual assault on the victim, Respondent No.1 was as
the vice-president of SDF party, in fact, at a condolence meeting,
held in the district party office. The cross-examination extracted
the fact that Respondent No.1 came to the office at 09.30 a.m. and
stayed there till 05.00 p.m. His deposition also remained
undecimated. DW-3 deposed that on 07-07-2020, the second date
on which the victim claims to have been sexually assaulted by
Respondent No.1, he (Respondent No.1) was at a parliamentary
committee meeting, in the headquarters of SDF party, at Gangtok.
The resolution of the Meeting dated 07-07-2020 was furnished
before the Court as Ext D-6, containing the signatures of the
attendees, including that, of Respondent No.1 as Ext D-6(m).
According to DW-3, Respondent No.1 came to Gangtok office on
06-07-2020 for the meeting to be held on 07-07-2020. After
attending the meeting at Gangtok which continued till 04.00 p.m.,
Respondent No.1 remained in Gangtok that night as there was a
programme to visit Rhenock Constituency and Gnathang Machong
Constituency on 08-07-2020. They left for the said place in the
early morning of 08-07-2020. The evidence given by the said
witness stood the test of cross-examination.
9. In Adambhai Sulemanbhai Ajmeri and Others vs. State of
Gujarat , the Supreme Court considered how the evidence of
Prosecution and defence witnesses are to be evaluated and held as
follows;
"219. It has been held by this Court in a
catena of cases that while examining the witnesses on
record, equal weightage shall be given to the defence
witnesses as that of the prosecution witnesses.
In Munshi Prasad v. State of Bihar [(2002) 1 SCC 351
: 2002 SCC (Cri) 175] , this Court held as under:
(SCC p. 356, para 3)
(2014) 7 SCC 716
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 32
―3. ... Before drawing the curtain on this score,
however, we wish to clarify that the evidence
tendered by the defence witnesses cannot always be
termed to be a tainted one by reason of the factum of
the witnesses being examined by the defence. The
defence witnesses are entitled to equal respect and
treatment as that of the prosecution. The issue of
credibility and the trustworthiness ought also to be
attributed to the defence witnesses on a par with that
of the prosecution -- a lapse on the part of the
defence witnesses cannot be differentiated and be
treated differently than that of the prosecutors'
witnesses.‖
(emphasis supplied)
220. Further, it has been held in State of
Haryana v. Ram Singh [(2002) 2 SCC 426 : 2002 SCC
(Cri) 350] as under: (SCC p. 439, para 19)
―19. ... Incidentally, be it noted that the
evidence tendered by defence witnesses cannot
always be termed to be a tainted one -- the defence
witnesses are entitled to equal treatment and equal
respect as that of the prosecution. The issue of
credibility and the trustworthiness ought also to be
attributed to the defence witnesses on a par with that
of the prosecution. Rejection of the defence case on
the basis of the evidence tendered by the defence
witness has been effected rather casually by the High
Court. Suggestion was there to the prosecution
witnesses, in particular PW 10 Dholu Ram that his
father Manphool was missing for about 2/3 days prior
to the day of the occurrence itself--what more is
expected of the defence case: a doubt or a certainty--
jurisprudentially a doubt would be enough: when such
a suggestion has been made the prosecution has to
bring on record the availability of the deceased during
those 2/3 days with some independent evidence.
Rejection of the defence case only by reason thereof
is far too strict and rigid a requirement for the
defence to meet -- it is the prosecutor's duty to prove
beyond all reasonable doubts and not the defence to
prove its innocence -- this itself is a circumstance,
which cannot but be termed to be suspicious in
nature."
(i) In State of U.P. vs. Babu Ram19, the Supreme Court
observed as follows;
"21. ........................... attention to the following
observations contained in the decision of this Court
in Dudh Nath Pandey v. State of U.P. [(1981) 2 SCC
166 : 1981 SCC (Cri) 379] : (SCC p. 173, para 19)
―Defence witnesses are entitled to equal
treatment with those of the prosecution. And,
courts ought to overcome their traditional,
instinctive disbelief in defence witnesses.‖
22. We may quote the succeeding sentence
also from the said decision for the sake of completion
of the observations of their Lordships on that score. It
(1981) 2 SCC 166
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 33
is this: ―Quite often they tell lies but so do the
prosecution witnesses.‖
23. Depositions of witnesses, whether they are
examined on the prosecution side or defence side or
as court witnesses, are oral evidence in the case and
hence the scrutiny thereof shall be without any
predilection or bias. No witness is entitled to get
better treatment merely because he was examined as
a prosecution witness or even as a court witness. It is
judicial scrutiny which is warranted in respect of the
depositions of all witnesses for which different
yardsticks cannot be prescribed as for those different
categories of witnesses."
(ii) We are indeed mindful of the provisions of Section 29
of the POCSO Act, 2012, in the context of the victim's statement.
However, there has to be some evidence for the Court to base a
conviction before relegating an accused to the guillotine.
10. Thus, from a careful perusal and consideration of the
entirety of the evidence on record, including that of DW's, we are
inclined to conclude that the allegation of sexual assault and
penetrative sexual assault are not established by the evidence on
record. We also observe that had there been repeated penetrative
sexual assault on PW-1 as claimed by her, there would have been
some physical indications on her person, bearing in mind her
tender years and considering that the Respondent No.1 was a fully
grown adult of fifty-one years of age. The Respondent No.1 is said
to have perpetrated penetrative sexual assault on her for the last
time on 12-08-2020 before her medical examination was done on
14-08-2020, pursuant to the lodging of the FIR. Despite the early
physical examination of the victim not even redness was detected
in the vagina of the victim nor was any swelling in her private part.
The hymen, despite allegation of repeated penetrative sexual
assault was found to be intact by all the doctors who examined her.
She was not in need of any professional psychological assistance or
intervention or supportive care and was absolutely normal mentally
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 34
on examination by Neuropsychiatric PW-15, Dr. Bishnu Sharma.
The accused bore no marks on his body to indicate that he had
sexually assaulted any person. There were no injuries on his
genital to indicate force applied by him on the victim.
11. So far as the other Respondents are concerned, no
evidence has appeared against them under the provisions of law
under which they are charged. There is no proof whatsoever that
they are guilty of the offences that they had been booked under.
12. In conclusion, we are of the considered view that the
impugned Judgment dated 30-06-2022, in ST(POCSO) Case No.27
of 2020 (State of Sikkim vs. Rup Narayan Rai (Chamling) and Others),
suffers from no error and thereby warrants no interference.
13. The Appeal stands dismissed and disposed of
accordingly.
14. Copy of this Judgment be forwarded to the Trial Court
for information along with its records.
15. Pending applications, if any, also stand disposed of.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
13-08-2025 13-08-2025
Approved for reporting : Yes
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