Sikkim High Court
Dhan Kumar Chettri @ Kumar Chettri vs State Of Sikkim on 9 June, 2025
Author: Bhaskar Raj Pradhan
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM: GANGTOK
(Criminal Appeal Jurisdiction)
---------------------------------------------------------------------------------
DIVISION BENCH: THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
---------------------------------------------------------------------------------
Crl. A. No. 31 of 2023
Dhan Kumar Chettri @ Kumar Chettri
Son of late Kharka Bahadur Chettri,
Resident of Amba,
District Pakyong.
(at present in State jail, Rongyek, East Sikkim) ..... Appellant
versus
State of Sikkim ..... Respondent
--------------------------------------------------------------------------
Appeal under Section 374(2) of the Code of Criminal Procedure,
1973
[against the judgment dated 11.09.2023 passed by the learned Special Judge
(POCSO ACT, 2012) Gangtok, Sikkim in State of Sikkim vs. Dhan Kumar
Chettri]
-----------------------------------------------------------------------------------------
Appearance:
Mr. R.C. Sharma, Advocate (Legal Aid Counsel) for the Appellant.
Mr. S.K. Chettri, Additional Public Prosecutor with Mr. Sujan
Sunwar, Assistant Public Prosecutor for the Respondent.
---------------------------------------------------------------------------------------------------------
Date of Hearing : 19.05.2025
Date of Judgment : 09.06.2025
---------------------------------------------------------------------------------------------------------
JUDGMENT
Bhaskar Raj Pradhan, J.
The appellant was convicted and sentenced under
section 3(b) of the Protection of Children from Sexual
Offences Act, 2012 (for short, the POCSO Act) punishable
Dhan Kumar Chettri @ Kumar Chettri vs. State of Sikkim
under section 4 thereof. He was not punished for the same
offence under section 9(l) and 9(m) punishable under section
10 of the POCSO Act and under section 354 of the Indian
Penal Code, 1860 (for short, the IPC). The appellant was
acquitted for the charge under section 3(a) punishable under
section 4 and under section 5(l) and 5(m) punishable under
section 6 of the POCSO Act, 2012 and under section 376-
AB, 376(2)(n) of the IPC.
2. The FIR was lodged on 15.04.2020 against the
appellant under section 354 of the IPC and section 8 of the
POCSO Act on a complaint made by the victim's mother
(PW-2). After the charge-sheet was filed, the learned Special
Judge framed eleven charges under sections 3(a), 3(b), 5(m),
5(l), 9(l), 9(m) of the POCSO Act and under sections 376-AB,
376(2)(n) and 354 of the IPC. The appellant pleaded not
guilty and claimed trial. During the trial, the prosecution
examined twelve witnesses including Tara Sharma (PW-12)-
the Investigating Officer. The appellant's statement under
section 313 Cr.P.C. was recorded on 12.07.2023 when he
stated that he was not aware of or that the circumstances
against him were not true. He claimed to be innocent and
falsely implicated.
Dhan Kumar Chettri @ Kumar Chettri vs. State of Sikkim
3. The learned Special Judge examined the evidence
and concluded that the deposition of the victim was
corroborated by the medical evidence as well as the evidence
of the victim's mother (PW-2), the appellant's friend (PW-4)
and the landlord (PW-7).
4. Heard Mr. R.C. Sharma, learned Counsel for the
appellant. He contends that the evidence of the victim is
unreliable as the victim's mother (PW-2) gave a different
version of the incident. He also contends that although the
learned Special Judge convicted and sentenced the
appellant under section 3(b) of the POCSO Act for
penetrative sexual assault, the medical evidence does not
support the victim's version. On the other hand, the learned
Additional Public Prosecutor supported the impugned
judgment submitting that the victim's deposition is cogent
and reliable. The victim's deposition according to him is
corroborated by the depositions of PW-3, PW-4, PW-5, PW-8,
PW-9 and PW-11.
5. Although, the learned Counsel for the appellant
did not raise the issue of minority of the victim, we find that
the deposition of the victim's mother (PW-2) and of the
victim about her minority was not questioned by the defence
Dhan Kumar Chettri @ Kumar Chettri vs. State of Sikkim
during the trial. The victim's mother (PW-2) also deposed
that she had lost the victim's birth certificate. As such, we
confirm the finding of the learned Special Judge about the
minority of the victim based on the deposition of the victim's
mother (PW-2) as well as the ossification test report (exhibit
P-3) conducted by Dr. Kharananda Sharma (PW-6) who
opined that based on the X-rays done on the victim, he was
of the opinion that the bone age of the minor victim was
between 7 to 10 years on the date of her examination on
15.05.2020.
6. The FIR (exhibit P-1) lodged on 15.04.2020 by the
victim's mother (PW-2) narrates the sequence of events
leading to the commission of the offence exactly as she
deposed before the Court on 28.09.2022. The appellant was
known to the victim's mother (PW-2) as well as the victim.
Both identified the appellant in Court. The victim had
deposed that she had gone to the house of the appellant on
the relevant day. During the night, the appellant slept beside
her and his son. At night he inserted his finger into her
anus. She came out of the room and sat on the staircase
where she met one 'uncle'. She told him about the incident.
Many people gathered. Police also arrived and took the
appellant.
Dhan Kumar Chettri @ Kumar Chettri vs. State of Sikkim
7. The appellant questions the truthfulness and the
veracity of the victim's statement. Nothing substantial to
demolish the prosecution version was brought out during
her cross-examination. The victim's deposition is
substantially corroborated by the victim's mother in her
deposition as well as by the FIR (exhibit P-1) lodged on
15.04.2020 on the basis of the recorded statement of the
victim's mother (PW-2). It is true that the FIR (exhibit P-1)
records that the victim had informed the victim's mother
(PW-2) that while she was asleep the appellant had touched
her 'pisab garne' at the first instance and when she went to
a different side to sleep, he again came and did the same
thing. This statement of the victim to her mother is slightly
different to the deposition of the victim when she said that
the appellant had inserted his finger into her anus. However,
we find that the defence did not confront the victim as well
as the victim's mother (PW-2) on this aspect. The
discrepancy is explainable as the FIR was not lodged by the
victim but by her mother.
8. PW-4 is a vital witness who also corroborated the
deposition of the victim. PW-4, who was the appellant's
friend and neighbour, confirmed that the appellant had in
his presence taken the victim along with him to his house
Dhan Kumar Chettri @ Kumar Chettri vs. State of Sikkim
from the victim's mother's (PW-2) house. PW-4 had also met
the victim - who was crying, and the appellant immediately
after the incident. According to PW-4, the victim did not
disclose why she was crying and the appellant denied of any
wrong doing.
9. PW-5 confirmed that he had met the victim crying
and in a state of panic along with the appellant immediately
after the incident. PW-5 was the IRBn personnel who
informed the police about the incident.
10. PW-8 - the Head Constable, deputed by Sub-
Inspector Deepa Sharma (PW-10) who was the duty Officer
of the Ranipool Police Station, confirmed that she had gone
to the appellant's house where she had found the victim
crying in the presence of the appellant. PW-8 was the police
personnel who informed the victim's mother (PW-2) about
the victim's state in the appellant's house.
11. Sub-Inspector Deepa Sharma (PW-10) confirmed
having sent PW-8 to inquire about the incident.
12. After being informed by PW-8 about the victim,
the victim's mother (PW-2), as per her deposition, went to
the appellant's house where she met the victim and the
appellant who was being interrogated by the police.
Dhan Kumar Chettri @ Kumar Chettri vs. State of Sikkim
13. The above depositions confirm the facts deposed
by the victim about the incident.
14. The learned Counsel for the appellant pointed out
the discrepancies in the dates of the incident as narrated by
some of the prosecution witnesses in their deposition as
fatal discrepancies. The errors of the date of the incident in
the deposition of some of the prosecution witnesses is not of
much relevance as the FIR (Exhibit P-1), deposition of Sub
Inspector Anil Subba (PW-3) - who was the Duty Officer who
received the information about the incident on 14.04.2020,
Deputy Superintendent of Police Bijendra Thapa (PW-9) who
registered the complaint on 15.04.2020, Sub Inspector
Deepa Sharma (PW-10) who instructed PW-8 to inquire
about the incident on 14.04.2020, Dr. Uma Rai (PW-11) who
examined the victim on 15.04.2020 and Tara Sharma (PW-
12) - the Investigating Officer who took up the investigation
after Sadar P.S. FIR Case No.63/2020 dated 15.04.2020 was
endorsed to her, sufficiently proves beyond reasonable doubt
that the incident occurred on 14.04.2020.
15. The victim's deposition about the actual act
committed by the appellant which is sufficiently
corroborated by the deposition of the prosecution witnesses
Dhan Kumar Chettri @ Kumar Chettri vs. State of Sikkim
as above also find corroboration from the medical evidence
available. Dr. Uma Rai (PW-11) who examined the victim on
15.04.2020, found that there was mild redness over her
buttock region. She recorded that in her medical report
(exhibit P-6) proved by her as well.
16. We are of the considered view that the
substratum of the prosecution case has remained intact and
the minor discrepancies pointed out by the learned counsel
for the appellant would not demolish the prosecution
version. We find no errors in the impugned judgment and
sentence passed by the learned Special Judge.
17. Section 3(b) of the POCSO Act relates to
penetrative sexual assault. A person is said to commit
penetrative sexual assault under section 3(b) if he inserts, to
any extent, any object or a part of the body, not being the
penis, into the vagina, the urethra or anus of the child or
make the child to do so with him or any other person. The
evidence of the victim which is found to be truthful and
cogent confirms that the appellant had committed
penetrative sexual assault upon her in his house on
14.04.2020.
Dhan Kumar Chettri @ Kumar Chettri vs. State of Sikkim
18. The punishment prescribed under section 4 for
penetrative sexual assault on a child below 16 years of age
is imprisonment for a term which shall not be less than
twenty years, but which may extend to imprisonment for
life, which shall mean imprisonment for the remainder of
natural life of that person and shall also be liable to fine.
The learned Special Judge has imposed the minimum
sentence of twenty years and a fine of Rs.5000/- for the
offence. We confirm the sentence imposed. We are also of
the view that the compensation of Rs.1,00,000/- in terms of
Schedule-I to the Sikkim Compensation to Victims (or their
Dependents) Scheme, 2021 ordered by the learned Special
Judge is just and reasonable and accordingly confirm the
same.
19. Accordingly, the appeal is dismissed and stands
disposed of.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
Approved for reporting : Yes
Internet: Yes
bp
