[Cites 26, Cited by 0]

Sikkim High Court

Madan Gurung vs State Of Sikkim on 1 December, 2025

Author: Meenakshi Madan Rai

Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan

THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
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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.39 of 2023
Appellant : Madan Gurung

versus

Respondent : State of Sikkim

Appeal under Section 374(2) of the Code of Criminal Procedure, 1973
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Appearance
Mr. Umesh Ranpal, Advocate (Legal Aid Counsel) for the Appellant.
Mr. S. K. Chettri, Additional Public Prosecutor for the State-
Respondent.
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Date of Hearing : 05-11-2025
Judgment reserved : 05-11-2025
Judgment pronounced & uploaded : 01-12-2025

JUDGMENT

Meenakshi Madan Rai, J.

1. The Appellant calls into question the Judgment of the

Special Judge (POCSO Act, 2012), dated 27-09-2023, in S.T.

(POCSO) Case No.50 of 2019, by which he was convicted for the

offence under Section 376 Indian Penal Code (IPC) and sentenced to

undergo rigorous imprisonment for a term of ten years and to pay a

fine of ₹ 5,000/- (Rupees five thousand) only, under the said

provision of law with a default stipulation.

2. It is submitted by Learned Counsel for the Appellant

that, the Appellant has not committed the offence of rape on the

alleged victim, who is his daughter and that, he has in his

examination under Section 313 of Code of Criminal Procedure, 1973

(Cr.P.C.), clearly denied such allegations made against him. It has

emerged in the evidence of PW-7, wife of the Appellant, that, the

victim was in the habit of going around with the boys and was not

Madan Gurung vs. State of Sikkim

interested in her education. The witness has also deposed that, the

victim did not complain to her about the Appellant touching her

inappropriately. That, the allegations against the Appellant by the

victim emanate from the fact that the Appellant was a strict father.

The victim was not amenable to his discipline or to doing household

chores and has thereby implicated him falsely in the said offence.

The evidence of the victim lacks fortification by any other

Prosecution witness and thus fails to support their case of

penetrative sexual assault. The Appellant in the facts and

circumstances deserves an acquittal.

3. Learned Additional Public Prosecutor contrarily

contended that, the victim's evidence is consistent with regard to

the allegations of penetrative sexual assault perpetrated on her by

the Appellant in 2012 and 2013, both in her Section 164 Cr.P.C.

statement and in her testimony before the Court. That, PW-5 the

Appellant's son and PW-6 the Appellant's daughter-in-law, have

categorically supported the Prosecution case. They have deposed

that PW-7, the wife of the Appellant, had herself told them that the

Appellant was guilty of the offence of penetrative sexual assault

against the victim, which she had witnessed. Hence, there is no

evidence which would mitigate the case against the Appellant. In

such circumstances, there is no reason to interfere with the

Judgment of Conviction and Order on Sentence of the Learned Trial

Court.

4. The facts of the Prosecution case inter alia are that, the

victim was working as a help/nanny in the house of PW-8, who is

the Complainant in the instant matter. On 18-06-2016, the minor

son of PW-8 suffered an injury while under the watch of the victim

Madan Gurung vs. State of Sikkim

on account of which PW-8 reprimanded her. The victim left the

house of PW-8 on that day. On the next day, 19-06-2016, PW-8

was rummaging through the belongings of the victim, when she

came across a letter, Exbt-1, addressed to her by the victim. In the

said letter, the victim had detailed the fact of penetrative sexual

assault committed on her, by her father. That, same evening, i.e.,

19-06-2016, the victim returned to the house of PW-8. On her

return, PW-8 made enquiries from her regarding the information

contained in the letter. On 20-06-2016, PW-8 lodged the FIR Exbt-

9, on the basis of which the Police registered a case bearing

No.196/2016, dated 20-06-2016, under Section 376 of the IPC read

with Section 6 of the Protection of Children from Sexual Offences

Act, 2012 (POCSO Act, 2012), against the Appellant and endorsed it

to PW-14, an SI at the concerned PS, for investigation.

(i) Having completed the investigation, PW-14 submitted

Charge-Sheet against the Appellant under Section 376 IPC read with

Section 6 of the POCSO Act, 2012. The Learned Trial Court framed

Charges against the Appellant under eleven heads, variously, under

Sections 5(n) and 5(l) read with Section 6 of the POCSO Act, 2012,

Sections 9(n) and 9(l) read with Section 10 of the POCSO Act, 2012

and Sections 376(2)(f) and 376(2)(n) of the IPC and Section 354 of

the IPC. The Charges were read over to the Appellant, who having

understood the Charges, entered a plea of "not guilty" and claimed

trial. The trial progressed with the examination of fourteen

witnesses furnished by the Prosecution, followed by the examination

of the Appellant under Section 313 of the Cr.P.C. During such

examination, he sought to examine himself and one witness in

support of his case. Both were examined as DW-1 and DW-2. On

Madan Gurung vs. State of Sikkim

closure of defence evidence, the final arguments of the parties were

heard and the impugned Judgment and Order on Sentence

pronounced.

5. That having been said, in the first instance, we deem it

essential to deal with the Charges framed by the Trial Court which

reads as follows;

"Firstly:- ......................................................... Secondly:- ...................................................... Thirdly:- ......................................................... Fourthly:- ...................................................... Fifthly:- That you, during the year 2013, at Pxxx Hxxxx, Gxxxxxx, East Sikkim being the father of the minor victim above repeatedly committed penetrative sexual assault on her(you put your penis into her vagina) and you thereby committed an offence of aggravated penetrative sexual assault under Section 5(n) of the POCSO Act, 2012 which is punishable under Section 6 of the said Act and within the cognizance of this Court;

Sixthly:- That you, during the year 2013, at Pxxx Hxxxx, Gxxxxxx, East Sikkim being the father of the minor victim above repeatedly committed rape on her(you put your penis into her vagina) and you thereby committed an offence punishable under Section 376(2)(f) of the IPC and within the cognizance of this Court;

Seventhly:- That you, during the year 2013, at Pxxx Hxxxx, Gxxxxxx, East Sikkim repeatedly committed penetrative sexual assault on the minor victim above(you put your penis into her vagina) and you thereby committed an offence of aggravated penetrative sexual assault under Section 5(l) of the POCSO Act, 2012 which is punishable under Section 6 of the said Act and within the cognizance of this Court;

Eighthly:- That you, during the year 2013, at Pxxx Hxxxx, Gxxxxxx, East Sikkim repeatedly committed rape on the minor victim above(you put your penis into her vagina) and you thereby committed an offence punishable under Section 376(2)(n) of the IPC, 1860 and within the cognizance of this Court;

Ninthly:- That you, during the year 2012, at Sxxxxx, East Sikkim being the father of the minor victim above repeatedly committed sexual assault on her(you used to repeatedly put your hands on her body and kiss her) and you thereby committed an offence of aggravated sexual assault under Section 9(n) of the POCSO Act, 2012 which is punishable under Section 10 of the said Act and within the cognizance of this Court;

Tenthly:- That you, during the year 2012, at Sxxxxx, East Sikkim repeatedly committed sexual

Madan Gurung vs. State of Sikkim

assault on the minor victim above(you used to repeatedly put your hands on her body and kiss her) and you thereby committed an offence of aggravated sexual assault under Section 9(l) of the POCSO Act, 2012 which is punishable under Section 10 of the said Act and within the cognizance of this Court; and Lastly:- That you, during the year 2012, at Sxxxxx, East Sikkim repeatedly used criminal force against the minor victim above(you used to repeatedly put your hands on her body and kiss her) with intent to outrage her modesty and did, in fact, outrage her modesty and you thereby committed an offence punishable under Section 354 of the IPC, 1860 and within the cognizance of this Court." [emphasis supplied]

6. To say the least, the Charges are rather unhappily

framed. Section 228 of the Cr.P.C. deals with framing of Charge in

a trial before a Court of Session. In State (NCT of Delhi) vs. Shiv

Charan Bansal and Others the Supreme Court has observed inter alia

that the Court is required to evaluate the material and documents

on record with a view to finding out if the facts emerging therefrom

taken at the face value disclose the ingredients constituting the

alleged offence.

7. The documents furnished before the Sessions Court at

the time of framing of Charges reveal that during investigation, the

victim had disclosed that she was assaulted sexually by the

Appellant once in 2013. Unfortunately, the Trial Court has in the

Charges framed against the Appellant erroneously noted that during

the year 2013 the Appellant "repeatedly" committed penetrative

sexual assault on the victim. Suffice it to mention here that we are

only expressing our concern at the lackadaisical manner in which the

Trial Court has proceeded to frame the Charges by not even

considering whether the offence in 2013 was committed on a single

occasion or repeatedly. The Trial Court is required to be circumspect

when framing Charges as it forms the foundation for the trial.

(2020) 2 SCC 290

Madan Gurung vs. State of Sikkim

8. The points for determination considered by the Trial

Court were, whether the accused subjected his daughter (victim) to

penetrative sexual assault on multiple occasions from 2012 to 2015?

If so, whether she is a minor within the meaning of Section 2(d) of

the POCSO Act, 2012? The Trial Court after considering all evidence

on record reached a finding that in the absence of reliable document

to support the victim's age, concluded that she was not a minor. In

the said circumstance, the Appellant could not be convicted for

offences under the POCSO Act, 2012, however he was found guilty

of the offence of rape simpliciter under Section 376 IPC and

convicted and sentenced as detailed supra.

9. This Court is now to consider whether the Trial Court

was correct in its eventual finding, which led to the Appellant's

conviction and whether sexual assault extended up to 2015 as

considered by the Trial Court, when the documents and the evidence

of the victim suggested that the offences of penetrative sexual

assault occurred only in the years 2012, 2013 and not 2015.

10. Of the fourteen witnesses examined by the Prosecution,

it is the victim PW-1 who had to bear the trauma of an invasion of

her personal space, her body, by the Appellant who was her father

no less. At the time of her evidence before the Court on 22-03-

2021, she was twenty-four years old, the offences were of the year

2012 and 2013. There is no dispute with regard to the finding of

the Trial Court that, the Prosecution failed to establish that the

victim was a minor when the offence was perpetrated on her, given

the lack of evidence on the side of the Prosecution. We are inclined

to agree with the finding of the Trial Court on this aspect as it is

clear that, PW-2 the School Principal where the victim was studying

Madan Gurung vs. State of Sikkim

has admitted in her evidence that the victim had taken admission in

her School on 20-02-2014 in Class IX and the victim's date of birth

was recorded as 17-04-1997. It was however her further admission

that Exhibit 6, a copy of the relevant page/portion of the Register

(produced by her in Court) contained the entries pertaining to the

minor victim, but she could not say who was the author of the

concerned entries as she was not in the School at that point of time.

Her cross-examination extracted the fact that, Exhibit 6 did not bear

details of the basis of the entry pertaining to the victim. She could

not state whether the entry Exhibit 6(a) was correct or not. PW-5

the victim's blood brother did not throw light on the age of the

victim nor did PW-6 his wife who is the sister-in-law of the victim,

enlighten the Court on this aspect. PW-7, the wife of the Appellant,

did not give any evidence with regard to the age of the victim and

the Appellant himself claimed that the victim was born in Nepal in

1997 sans any documentary evidence. Hence, this facet is decided

in terms of the decision of the Trial Court.

11. While addressing the issue of the offence of penetrative

sexual assault committed by the Appellant on the victim PW-1, she

has unwaveringly stated that during the year 2012 when they were

living in rented accommodation in a place in East Sikkim, along with

second wife of the Appellant and their daughter, the Appellant

committed penetrative sexual assault on two occasions. In the year

2013, when they had shifted to another rented accommodation, he

again committed penetrative sexual assault on her once. Then in

the year 2014, she was taken to Nepal by PW-7 her step-mother

and PW-6 her sister-in-law. On her return from Nepal she started

working as a nanny in the house of PW-8. Her cross-examination

Madan Gurung vs. State of Sikkim

failed to decimate the examination-in-chief pertaining to the

penetrative sexual assaults committed on her by the Appellant and

other facts stated by her. In fact, in her cross-examination while

confronted with statements specifically extracted from her Section

164 Cr.P.C. regarding the penetrative sexual assaults on her by the

Appellant, she asserted that she had told the Magistrate, who

recorded her statement, that, the Appellant tried to kiss her on her

mouth, put his hands on her chest and inserted his genital into hers.

That, he had repeated the same acts in the second rented

accommodation to which they had shifted from the first such

accommodation. In our considered view, the evidence of the

witness has been consistent and thereby we are inclined to term it

as being of sterling quality. Her evidence is also fortified by the

evidence of PW-5 her brother, who deposed that, sometime in the

year 2014 the minor victim and PW-7 his step mother came to his

house, where PW-7 told him that the Appellant had done something

wrong to the minor victim. That, she had seen the Appellant

sleeping with the minor victim one morning when she returned from

her morning walk. This statement stood the test of cross-

examination. The evidence of PW-6 lends substantiation to the

above statements. She deposed that they came to learn from PW-7

that he had done something "bad" to the minor. When they

enquired from the minor she told them that she was raped by the

Appellant. The evidence of PW-6 withstood the cross-examination.

PW-8 is the Complainant, who had taken the initiative to complain

to the Police on finding Exbt-1, the letter addressed to her by the

victim, where the victim had laid bare the conduct of the Appellant

towards her and the commission of penetrative sexual assault by

Madan Gurung vs. State of Sikkim

him on her, i.e., the victim, by the Appellant. She had handed over

the concerned letter to the Police. She admitted that whatever she

had stated in her examination-in-chief was also stated by her in her

FIR before the Police. Although an effort was made by the

Prosecution to prove that the victim was a habitual liar by way of

furnishing PW-9 as a witness, who stated that, the victim had the

habit of lying, nevertheless no instances of her having lied at any

point in time to PW-9 was detailed by the witness and we therefore

deem her evidence to be irrelevant.

(i) PW-10 the Doctor who examined the victim on 21-06-

2016 observed that, there were no fresh injuries on the private part

of the victim, which would indeed be true, for the reason that, the

incidents of sexual assault took place in the year 2012 and 2013 and

therefore her body would exhibit no fresh injuries on any part

thereof in the year 2016. However, it has emerged in his cross-

examination that there was an old tear in the hymen, indicating

that, she was probably subjected to penetrative sexual assault

earlier in time.

(ii) PW-11 the Consultant Radiologist observed that the

victim could be of any age, above twenty years, when he examined

her on 25-06-2016.

(iii) The Police witnesses PWs 12, 13 and 14 have been

consistent with regard to their stand that PW-8 brought Exbt-1 to

the Police Station, whereupon the matter came to be registered

against the Appellant and PW-14 during her investigation observed

that the Complainant had lodged the FIR. The Appellant was found

to have committed the offence of penetrative sexual assault after all

due enquiries were made by the Investigating Officer.

Madan Gurung vs. State of Sikkim

12. In the facts and circumstances of the instant case, we

are of the considered view that the Judgment of the Trial Court

warrants no interference, save to the extent that the offence of

penetrative sexual assaults pertained to the year 2012 and 2013

and did not extend to 2015. We also observe that the conviction

ought not to have been under Section 376 IPC simpliciter, but under

Section 376(2)(f) and Section 376(2)(n) of IPC. Each of the Sections

make provision for separate terms of imprisonment. However, the

Trial Court handed out conviction only under a blanket provision of

Section 376 IPC without specifying the Sub-Sections and sentenced

him only under the said Section. In our considered view, this is an

error committed by the Trial Court.

13. The Learned Trial Court ought to have been mindful of

the penal provision, convicted the Appellant as per law and handed

out sentence as directed by law. Where minimum sentence is

prescribed by the law it has to be applied without exception. In

Mohd. Hasim vs. State of Uttar Pradesh and Others , the Supreme Court

in Paragraph 19 it was held as follows;

"19. The learned counsel would submit that the legislature has stipulated for imposition of sentence of imprisonment for a term which shall not be less than six months and the proviso only states that sentence can be reduced for a term of less than six months and, therefore, it has to be construed as minimum sentence. The said submission does not impress us in view of the authorities in Arvind Mohan Sinha [(1974) 4 SCC 222] and Ratan Lal Arora [(2004) 4 SCC 590]. We may further elaborate that when the legislature has prescribed minimum sentence without discretion, the same cannot be reduced by the courts. In such cases, imposition of minimum sentence, be it imprisonment or fine, is mandatory and leaves no discretion to the court. However, sometimes the legislation prescribes a minimum sentence but grants discretion and the courts, for reasons to be recorded in writing, may award a lower sentence or not award a sentence of imprisonment. Such

(2017) 2 SCC 198

Madan Gurung vs. State of Sikkim

discretion includes the discretion not to send the accused to prison. Minimum sentence means a sentence which must be imposed without leaving any discretion to the court. It means a quantum of punishment which cannot be reduced below the period fixed. If the sentence can be reduced to nil, then the statute does not prescribe a minimum sentence. A provision that gives discretion to the court not to award minimum sentence cannot be equated with a provision which prescribes minimum sentence.

The two provisions, therefore, are not identical and have different implications, which should be recognised and accepted for the PO Act."

[emphasis supplied]

(i) In Harendra Nath Chakraborty vs. State of West Bengal3, the

Supreme Court in Paragraphs 27 and 28 held as follows;

"27. The appellant was dealing with an essential commodity like kerosene. If Parliament has provided for a minimum sentence, the same should ordinarily be imposed save and except some exceptional cases which may justify invocation of the proviso appended thereto.

28. In India, we do not have any statutory sentencing policy as has been noticed by this Court in State of Punjab v. Prem Sagar [(2008) 7 SCC 550]. Ordinarily, the legislative sentencing policy as laid down in some special Acts where the parliamentary intent has been expressed in unequivocal terms should be applied. Sentence of less than the minimum period prescribed by Parliament may be imposed only in exceptional cases. No such case has been made out herein."

[emphasis supplied]

(ii) In Dhananjoy Chatterjee alias Dhana vs. State of W.B.4 it

was observed by the Supreme Court that;

"15. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment."

14. That having been said, at this juncture, it is essential to

point out that the State-Respondent has unfortunately failed to take

(2009) 2 SCC 758

(1994) 2 SCC 220

Madan Gurung vs. State of Sikkim

recourse to the provisions of Section 377 of the Cr.P.C. which

provides for appeal by the State Government against sentence,

although it is a clear case where the Appellant has been

inadequately sentenced. Such lackadaisical attitude by the State-

Respondent leads to a failure of justice as not only are the rights of

an Accused to be protected but the victim is also entitled to her

rights. We say no further.

15. The Judgment and sentence of the Trial Court is

accordingly upheld.

16. Appeal is dismissed and disposed of accordingly.

17. No order as to costs.

18. Copy of this Judgment be transmitted forthwith to the

Learned Trial Court for information along with its records.

19. A copy of this Judgment be made over to the

Appellant/Convict through the Jail Superintendent, Central Prison,

Rongyek and to the Jail Authority for information.





       ( Bhaskar Raj Pradhan )                         ( Meenakshi Madan Rai )
              Judge                                            Judge
                01-12-2025                                               01-12-2025




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