Sikkim High Court
Sanjay Darjee vs State Of Sikkim on 10 September, 2025
Author: Meenakshi Madan Rai
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
Dated : 10th September, 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.22 of 2024
Appellant : Sanjay Darjee
versus
Respondent : State of Sikkim
Application 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. Thinlay Dorjee Bhutia, Public Prosecutor, Mr. Yadev Sharma,
Additional Public Prosecutor and Mr. Sujan Sunwar, Assistant Public
Prosecutor for the Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The Appellant was convicted of the offences under
Section 3(a), punishable under Section 4 and Section 5, punishable
under Section 6, of the Protection of Children from Sexual Offences
Act, 2012 (hereinafter, the "POCSO Act"), vide the impugned
Judgment dated 24-04-2024, in ST (POCSO) Case No.12 of 2022,
in the Court of the Special Judge (POCSO Act, 2012), Gangtok,
Sikkim. On 29-04-2024, he was sentenced to undergo rigorous
imprisonment for a period of twenty years and fined ₹ 2,000/-
(Rupees two thousand) only, for the offence under Section 5(m),
punishable under Section 6 of the POCSO Act with a default
stipulation. While sentencing the Appellant under Section 5(m)/6
of the POCSO Act, the Court reasoned that, as the victim was
below twelve years of age, the convict was sentenced under
Section 6 of the POCSO Act, for aggravated penetrative sexual
assault. He was therefore not required to be sentenced for the
same offence under Section 4 of the POCSO Act as the penalty
prescribed under Section 6 of the POCSO was greater in degree.
(i) Aggrieved by the Judgment and Sentence, the
Appellant is before this Court, impugning both.
2. The Prosecution narrative is that, on 02-03-2022 the
FIR, Exbt P-11/PW-9 was received from PW-9, informing that, her
step-sister PW-1, aged about twelve years was missing from their
residence around 05.00 p.m., on 24-02-2022. She was last seen
with the Appellant, a driver, who was not responding to calls on his
cell phone. The FIR was duly registered that same day under
Section 363 of the Indian Penal Code, 1860 (hereinafter, the "IPC")
against the Appellant. Investigation was endorsed to PW-11 the
Investigating Officer (IO), whereupon it was revealed that the
Appellant was known to the victim‟s family since the past two
years. During her father‟s treatment at Siliguri, and after his
demise the Appellant helped them with their household rations. On
24-02-2022, the Appellant went to the victim‟s house and asked
her to accompany him to Gangtok. She left without her mother‟s
consent and spent the night with him at a hotel in Gangtok. The
victim claimed that night she was not sexually assaulted by the
Appellant. On 25-02-2022, they went to Pelling, West Sikkim, with
tourists in the Appellant‟s vehicle and booked into one hotel room.
On 26-02-2022, on account of mechanical defects in the
Appellant‟s vehicle they could not return home, and continued to
stay in the same hotel till 27-02-2022, where the Appellant
allegedly sexually assaulted PW-1 several times. On 28-02-2022,
after the vehicle was repaired, they returned together to Gangtok
and spent another night together. On 01-03-2022, the Appellant
took some tourists to North Sikkim and PW-1 accompanied them
where they again shared a hotel room. On 03-03-2022, they were
intercepted by the jurisdictional police personnel and handed over
to PW-11. He submitted Chargesheet, against the Appellant under
Section 363 of the IPC, read with Section 4 of the POCSO Act.
(i) The Trial Court framed Charge against the Appellant
under Section 3(a) punishable under Section 4, Section 5
punishable under Section 6 of the POCSO Act. The Appellant
having entered a plea of "not guilty", the Prosecution examined
twelve witnesses in support of its case, on closure of which, the
Appellant was examined under Section 313 of the Code of Criminal
Procedure, 1973 (hereinafter, the "Cr.P.C."). He claimed innocence
and asserted that the allegations levelled against him were false
and fabricated. The Trial Court on appreciation of the entirety of
the evidence, pronounced the impugned Judgment and Order on
Sentence.
3. Learned Counsel for the Appellant while assailing both,
submitted that the date of birth of the victim was not proved as the
Prosecution failed to prove seizure of the birth certificate and also
failed to examine the author of the document as he was never
arrayed as a witness. It was canvassed that regardless of the
evidence of PWs 1, 2, 7 and 8 about the age of minority of the
victim, the fact that PW-1 herself has stated that she had told PW-
2 her mother that she had married the Appellant, indicates that
she was not fourteen years old but much older. The Trial Court
based its evidence on the sole testimony of the victim, but there
were no witnesses to prove that the Appellant and the victim spent
several nights together in various hotels. The evidence does not
Sanjay Darjee vs. State of Sikkim 4
establish sexual assault by the Appellant on the victim nor does the
medical report of the victim substantiate the Prosecution case.
There is no proof whatsoever of penetrative sexual assault and the
chain of circumstances do not favour the Prosecution case. The
undergarment of the victim as well as her vaginal wash and swab
were forwarded to the RFSL Saramsa, but the results were
negative for presence of semen, thereby ruling out the allegation of
penetrative sexual assault. The medical report of the victim, Exbt
P-14/PW-11, found no injuries or abnormalities either on her
person or in her genital. The cross-examination of the doctor
revealed that during the victim‟s medical examination, he did not
find a history of sexual assault on her. In such circumstances, the
Judgment of conviction and consequent Order on Sentence of the
Trial Court deserves to be set aside and the Appellant acquitted of
all charges.
4. Per contra, Learned Public Prosecutor argued that the
victim as per the birth certificate has been shown to be twelve
years old. PW-7 the Registrar of Births and Deaths authenticated
the documents and found the entries therein to be correct. PW-8
the Headmistress of the school attended by the victim lends
support to the evidence of PW-7, who on verification of the school
admission register, which was furnished in Court, confirmed that,
the victim‟s date of birth was recorded therein as 19-03-2010. In
the face of such categorical evidence, the victim being a minor
cannot be denied. Minor discrepancies such as the victim stating
that she was fourteen years old and her mother stating that she
was thirteen years old does not demolish the Prosecution case.
The victim has clearly deposed that the Appellant touched her
inappropriately which she described as „bad touch‟ at the hotel in
Pelling and that he had sex with her on the second day. The
medical evidence proves that she was sexually assaulted as the
examining doctor found her to be sexually active. In such
circumstances, the Judgment and Order on Sentence warrants no
disturbance.
5. We have given due consideration to the rival
contentions advanced before us and examined all the evidence,
documents on record and perused the impugned Judgment and
Order on Sentence.
6. The Trial Court framed the following points for
determination; Whether the accused committed penetrative sexual
assault on the victim in a hotel room at Pelling between 25th to 27th
February, 2022 and at Lachen between 1st to 2nd March, 2022? If
so, whether she is a minor within the meaning of Section 2(d) of
the POCSO Act, 2012?
(i) The Trial Court in Paragraph 14 of the impugned
Judgment observed that, the accused was known to the victim for
a long time as he is related to her through her father. In March,
2022, she had gone with the accused to Pelling along with tourists.
During their two days stay in a hotel at Pelling, the accused did
„bad touch‟ to her i.e., touched her breasts and stomach and also
had sex with her. From Pelling they came to Gangtok and then left
for Lachung (sic. Lachen), the following day. There the accused
again repeated the „bad touch‟, on her. The police intercepted
them and took them to the police station. The Court further
observed that the victim‟s testimony that the accused had sexual
intercourse with her at Pelling and Lachen cannot be disbelieved
simply because there was no injuries on the vaginal region. Oral
evidence of the victim, which is credible has to be given
precedence over the medical evidence. Her statement recorded
under Section 164 of the Cr.P.C. (Exbt P-1/PW-1) also supports her
oral evidence given before the Court. Although her cross-
examination indicated that she had gone with the accused to
various locations and had sexual intercourse with him of her own
free will, but in a case under the POCSO Act, the child‟s consent
becomes inconsequential. Hence, the question whether the
accused committed penetrative sexual assault on the victim in a
hotel room at Pelling between 25-02-2022 to 27-02-2022 and at
Lachen between 01-03-2022 and 02-03-2022 was answered in the
affirmative. The Court then went on to discuss the age of the
victim and on consideration of the evidence of PW-1 the victim,
PW-2 the mother of the victim, PWs 3 and 4, witness to the seizure
of the victim‟s birth certificate Exbt P-2/PW2 from PW-9 (victim‟s
sister) where her date of birth is recorded as 19-03-2010, PW-7,
the Registrar of Births and Deaths who found the victim‟s birth
certificate to be genuine, after verification with the live birth
register, PW-8 who deposed that the victim‟s date of birth too was
recorded in the school admission register as 19-03-2010,
concluded that the victim was barely twelve years old at the time
of the incident. The impugned Judgment was accordingly
pronounced, followed by the impugned Order on Sentence.
7. This Court is now to determine whether the findings of
the Trial Court with regard to the age of the victim and the
allegations of penetrative sexual assault and sexual assault against
the Appellant stand fortified by the evidence on record.
(i) While examining the evidence of the victim, we find
that she deposed inter alia as follows;
".......................................................................
I do not remember the exact date but in March
this year (2022), I had gone with Sanjay dada to
Pelling. We stayed in a hotel for about two days.
Sanjay dada is a driver and had taken some tourists,
so I also went along with them. Witness says, "mo
ghumnu gayo" (I went for a visit). While at Pelling
Sanjay dada and I stayed in the same room in the
hotel. During our stay he did "bad touch" to me.
Question by the Court:-
Q. Can you tell us what you mean by "bad touch"?
Ans: He touched me "here" (victim points to her
breasts and stomach).
Q. Did he do anything else to you?
Ans: He did naramro cheej to me.
Q. Can you tell us what you mean by "naramro cheej
Ans: He had sex with me on the second day. I
screamed but no one came to my rescue.
However, I remained with him as I had no one
else to go with. From Pelling, we came to Gangtok
and halted for a night in a hotel at M.G. Marg. The
next day we left for Lachung. I did not go home
when I came to Gangtok. At Lachung also we stayed
in a hotel and shared a room. There also he did "bad
touch". We did not have sex. While at Lachung the
police came and caught us and took us to the thana.
......................................................................."
Her cross examination revealed inter alia as follows;
".......................................................................
It is not a fact that I was not aware that
accused was touching me in a bad way. It is not a fact
that on the second day in Pelling, the accused did not
have sex with me. It is true I did not resist when the
accused had sex with me. It is true I consented to
having sex with the accused. It is true that I did not
complain to anyone in the hotel about the accused
either in Pelling or in Lachung. It is not a fact that
accused did not do "bad touch" to me in Pelling and
Lachung.
......................................................................."
(ii) Before proceeding further, at this juncture, it would be
relevant for us to point out that the Trial Court has erroneously
placed reliance on the Section 164 Cr.P.C. statement of the victim
while opining at Paragraph 15 of the impugned Judgment as
follows;
"15. The victim‟s evidence makes it certain that the
accused had taken her to Pelling and Lachen (referred
as Lachung by the victim) during the said period.
Therefore, the contention of defence that accused
person‟s name does not match with the name in the
F.I.R (Sanjay Rai) is inconsequential. The identity of
the accused, being the person who had taken the
victim from her house stands proved. The victim‟s
testimony that the accused had sexual intercourse
with her at Pelling and Lachen cannot be disbelieved
simply because there was no injury on her vaginal
region (as per the medical report marked Exhibit P-
14/PW11). Oral evidence of the victim, which is
credible has to be given precedence over the medical
evidence. Her statement recorded prior in time under
Section 164 of the Code of Criminal Procedure, 1973
(Exhibit-P1/PW-1) also supports her oral evidence
given before this Court."
(iii) This Court in Ganesh Dhakal vs. State of Sikkim1 has
detailed the parameters for consideration of a statement under
Section 164 of the Cr.P.C. as follows;
"7. .......................................................................
ix. That, the contents of a statement under
Section 164 Cr.P.C. is not substantive evidence
is now no more res integra and should the
Court contemplate considering its contents,
then the author of the contents ought to be
confronted with it and the provisions of Section
145 of the Evidence Act, 1872, complied with.
The object of statement of witnesses, recorded
under Section 164 Cr.P.C. is concerned the
object is twofold. The first is to deter the
witness from altering his stand by denying the
contents of his previously recorded statement.
Secondly, it is to tide over immunity from
Prosecution by the witness under Section 164
Cr.P.C. The proposition that if a statement of a
witness is recorded under Section 164 Cr.P.C.,
his evidence in Court should be discarded is not
at all warranted. 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 statements made by the
witnesses in the committal Court or even to
contradict it, for the reason that the Defence
has had no opportunity of cross-examining the
witnesses whose statements were recorded
under Section 164 Cr.P.C. [See R. Shaji vs. State
of Kerala (2013) 14 SCC 266)]. It is also settled law
that the formalities prescribed by Section 145
of the Evidence Act are to be complied with,
even for statements recorded under Section
164 Cr.P.C. Every circumstance intended to
be used as contradiction or corroboration has
to be put to the witness point by point and the
whole statement read out to him. The
admission or denial thereof has to be extracted
2025 SCC OnLine Sikk 25
from the witness, before the Court can consider
such contradiction or corroboration. In the
instant matter, it is seen that all that the
witness has stated with regard to Section 164
Cr.P.C. statement, in her testimony before the
Court is that, during the course of investigation
she was taken to Court and her statement
recorded, which she identified as Exbt-4, on
which she had affixed her right thumb
impression. In her cross-examination she
denied having improvised her statement at the
time when her Section 164 Cr.P.C. statement
was recorded. Clearly she was not confronted
point by point, fact by fact or paragraph by
paragraph on each circumstance that was
intended to be contradicted or corroborated,
and hence the arguments advanced by Learned
Counsel for the Appellant on this aspect is
untenable."
(iv) More recently in State of Sikkim vs. Rup Narayan Rai
(Chamling) and Others it has been held as follows;
"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 point, there is
Decided by the Division Bench of this High Court, in Crl. A. No.28 of 2024, on 13-08-2025.
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 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."
AIR 1952 SC 214
(2015) 9 SCC 588
(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 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.
......................................................................."
Hence in view of the fact that the victim has not been
questioned in terms of the law laid down as discussed at length
(supra), her statement under Section 164 of the Cr.P.C. is rendered
totally irrelevant for the present purposes. Apart from which, it
needs no reiteration that a statement under Section 164 of the
Cr.P.C. is not substantive evidence and is utilised only for the
purposes of corroboration and contradiction.
(v) So far as the age of the victim is concerned, we find
that the deposition of PW-1 and PW-2 are fortified by contents of
Sanjay Darjee vs. State of Sikkim 12
the birth certificate which has been proved by PW-7 and PW-8 as
detailed in the impugned Judgment, which has been discussed
hereinabove. We see no reason to disagree with the finding of the
Trial Court on the age of the victim, as her date of birth is 19-03-
2010 and the offence was reported on 02-03-2022, making her a
few days short of twelve years of age.
(vi) Having thus meticulously perused the statement of the
victim, it is evident that the Appellant touched her inappropriately
on her breasts and stomach, which she has described as „bad
touch‟. Her categorical statement is that on the second day the
Appellant had sex with her. Her cross-examination reveals that she
did not resist when the Appellant had sex with her and that it was
consensual. The evidence of PW-12, the doctor, which the Trial
Court has failed to consider, establishes that, although upon genital
examination no abrasion or injuries were found in and around the
vagina, however he found the patient i.e., the victim to be sexually
active. In such circumstances, it is established that penetrative
sexual assault on the victim was perpetrated by the Appellant. As
correctly pointed out by the Trial Court, even if there was
consensual sex between the victim and the Appellant, it needs no
reiteration that consent of a minor is of no relevance and the
Appellant being an adult man, aged around thirty-two years would
still be considered the perpetrator of the offence of penetrative
sexual assault.
8. In light of the foregoing discussions, the impugned
Judgment and the impugned Order on Sentence of the Trial Court
are accordingly upheld and the question framed for consideration
by this Court (supra) is consequently given a quietus.
9. The Appeal is dismissed and disposed of.
10. Copy of this Judgment be forwarded forthwith to the
Trial Court along with its records.
11. A copy of this Judgment also be made over to the
Appellant through the Jail Superintendent, Central Prison, Rongyek
and also to the Jail Authority, for information.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
10-09-2025 10-09-2025
Approved for reporting : Yes
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