Meenakshi Madan Rai, J.
1. This Appeal calls into question both the Judgment dated 28-12-2016 and the Order on Sentence dated 29-12-2016, of the Learned Special Judge
(POCSO), West Sikkim, at Gyalshing, in Sessions Trial (POCSO) Case No.01 of 2016, convicting the Appellant under Section 376(1) of the Indian
Penal Code, 1860 (for short “IPCâ€) and sentencing him to undergo rigorous imprisonment for 9 (nine) years and to pay a fine of Rs.30,000/-
(Rupees thirty thousand) only, with a default stipulation. The period of detention already undergone by the Appellant during investigation and trial were
duly set off against the sentence of imprisonment imposed.
2. Aggrieved by the finding, Learned Counsel for the Appellant would argue that it has been established by evidence that the victim was infact 21
years at the time of the incident, consequently the act between her and the Appellant was consensual, this being evident from the circumstance that
although the incident took place on 26-12-2015 at around 6 p.m., it remained unreported till 29-12-2015. The victim slept through the night after the
incident and it was her father who brought it to the notice of the Panchayat lending further succour to the presumption of the act being consensual, the
lack of injuries on the person of the victim being another such indicator. Assuming that the act was not consensual the medical examination of the
victim conducted on 29-12-2015 led to a finding that there was human semen in her vaginal swab, the Scientific Report however failed to conclusively
reveal that the semen was that of the Appellant. It was urged that considering that there was a gap of three days from the alleged date of sexual
assault and the medical examination of the victim, the detection of semen in the vaginal swab was farfetched as she would have attended natures call,
besides she was menstruating at the time. In the alternative, it could also give rise to a suspicion that in the interim period of three days she had
another sexual encounter with a third person. That, although the victim was found to be above 18 years of age, the Learned Trial Court failed to alter
the Charge that had been framed under the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Actâ€), hence causing
prejudice to the Appellant as the cross-examination could not be incisive in view of the embargo under the POCSO Act. In the next leg of his
argument, it was canvassed that the occupants of the vehicle in which the victim travelled have not deposed that the victim was forced into the vehicle
by the Appellant as wrongly alleged by the victim. While contending that the statement of the victim should not be treated as gospel truth, reliance was
placed on Raju and Others vs. State of Madhya Pradesh1. Strength was drawn from the decisions in Mohd. Ali alias Guddu vs. State of Uttar
Pradesh2, Manoharlal vs. State of Madhya Pradesh3, State of Rajasthan vs. Babu Meena4 and Alamelu and Another vs. State represented by
Inspector of Police5 to buttress the other submissions of Learned Counsel. That, the alleged incident took place on a road where the victim had
sufficient opportunity to escape, but she opted not to, on this count reliance was placed on Tula Ram Rai alias Gorey Rai vs. State of Sikkim6 .
3. The contra arguments raised by the Prosecution to repel those of the Appellant were that there was no motive for the victim to incriminate the
Appellant, a married man aged about 29 years with a family. The incident occurred at 5 p.m. on 26-12- 2015 and as is wont with people in the villages
who are timid and lack exposure, she disclosed it to P.W.2 only on 27-12-2015, who for her part revealed it to the victim‟s father, P.W.10, on 28-12-
2015. That, a bare perusal of the evidence of the victim would clearly indicate that the offence was committed on her by the Appellant, besides, the
Doctor‟s evidence reveals a blunt injury on the vagina of the victim. Had the act been consensual, the question of injury would not have arisen.
Reliance was also placed on Section 114A of the Indian Evidence Act, 1872 (for short “the Evidence Actâ€) and on the decision of State of
Rajasthan vs. Roshan Khan and Others7. It was further contended that no self-respecting woman would ever make a false allegation of having been
raped and in this context, reliance was placed on the decision in Mohd. Imran Khan vs. State Government (NCT of Delhi)8. Placing reliance on State
of Himachal Pradesh vs. Sanjay Kumar alias Sunny9 and Vijay alias Chinee vs. State of Madhya Pradesh10 it was put forth that the statement of the
Prosecutrix has to be believed as it has been consistent. That, the delay in the lodging of the FIR has been explained inasmuch the victim informed
P.W.2 only on the next day of the incident, who informed the victim‟s father on the following day. The father being a rustic villager reported the
matter to the Panchayat of the area who summoned a meeting with P.Ws 5, 6, 7, 8, 9 and 10, whereupon on due consideration, P.W.10 was advised
to report the matter to the Police. In the light of the submissions, the role of the Appellant in the commission of the offence having been established,
the Appeal be dismissed.
4. Having heard Counsel for the parties at length and given anxious consideration to their submissions and also having perused the entire evidence and
documents on record, the question that falls for consideration before this Court is, whether the Learned Trial Court was in error in convicting the
Appellant. The facts may be briefly traversed for clarity before analysing the evidence on record.
5. The Prosecution case before the Learned Trial Court was that the victim lodged Exhibit 1, the First Information Report (FIR) on 29-12-2015,
informing therein that on the evening of 26-12-2015, the Appellant volunteered to reach her home. En route. while walking up to her house, he forcibly
raped her, hence, strict legal action be taken against the Appellant. On receiving the Complaint, the Gyalshing Police Station (P.S.) registered it as FIR
No.59/2015, dated 29-12-2015, under Section 376 of the IPC and Section 4 of the POCSO Act, pursuant to which it was endorsed to the Investigating
Officer, P.W.14. On investigation, it transpired that the victim, a Class X student, staying in a hostel at Darap to attend coaching classes, decided to
return home to Nambu on 26-12-2015, the next day being a holiday, accompanying her aunt and uncle, who however left without her, prompting her to
wait for the taxi of her cousin which plied on that route. Shortly thereafter, the Appellant, the victim‟s co-villager instead came in his taxi with two
lady passengers and their goods loaded therein and the Appellant volunteered to reach her home despite her refusal. On reaching Nambu, both the
ladies de-boarded the vehicle while the Appellant convinced the victim that he would reach her safely home and on getting off the vehicle, he
volunteered to walk the victim home. Becoming apprehensive of his motives, she grabbed her belongings and ran uphill towards her house through
rough road and a cardamom field. The Appellant pursued her, grabbed her from behind, pushed her to the ground and sexually assaulted her despite
her resistance. She managed to free herself and escape and reach home, but being traumatised, did not reveal the incident to anyone. The following
day, she confided in her cousin, P.W.2, who in turn disclosed the incident on 28-12-2015 to the victim‟s father P.W.10. On 29-12-2015 the FIR,
Exhibit 1, was lodged by P.W.1.
6. During the course of investigation, apart from the other formalities, the Appellant was arrested and subjected to medical examination as also the
victim, whose statement was recorded under Section 164 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.â€) before the Learned
Magistrate of the West District. The blood samples of the Appellant and the victim were obtained. On completion of investigation, Charge-sheet came
to be submitted against the Appellant under Sections 376/341 of the IPC read with Section 4 of the POCSO Act.
7. The Learned Trial Court after hearing the opposing parties framed Charge against the Appellant on 06-04-2016 under Section 3(a) of the POCSO
Act, punishable under Section 4 of the same Act. Subsequently, on 28-04-2016, an additional Charge under Section 376(1) of the IPC was also framed
against the Appellant. The Appellant pleaded “not guilty†to the offences, pursuant to which trial commenced with the examination of 14
(fourteen) Prosecution Witnesses. On closure of the Prosecution evidence, the Appellant was extended an opportunity under Section 313 of the
Cr.P.C. to explain the circumstances appearing in the evidence against him. He claimed to have been falsely implicated in the case. He also sought to
examine one witness who was produced as D.W.1, to establish that the victim was not a minor at the time of the offence. On closure of the evidence
furnished by the Appellant, the final arguments of the parties was heard whereupon the Learned Trial Court on consideration of the evidence on
record, pronounced the impugned Order on Conviction and Sentence.
8. The Learned Trial Court has reached the finding that the victim was not a minor, in this context, it may be reiterated that P.W.10 indubitably
admitted that in order to avail of the Students‟ Scholarship provided by the Government for a particular age group, he had procured the Birth
Certificate for P.W.1, in order to meet the criteria. On his request the Chief Registrar of Births and Deaths, Department of Health Care, Human
Services and Family Welfare Department, Government of Sikkim, issued a Certificate in the name of P.W.1 being, Exhibit 8. Admittedly Exhibit 8
reflected a false date of birth, decreasing the victim‟s real age by indicating her date of birth as “15-02-1999†instead of “15-02-1995â€. This
is supported by the evidence of D.W.1 who in his evidence has stated that the victim was a student of his School and the School Admission Register,
Exhibit D(1), would indicate that the victim was admitted on 29-03-2000 in the Pre-Primary Class at Sl. No.13 with her date of birth shown as “15-
02-1995â€. The entry was duly signed by P.W.10 as the father of the student at Column No.19 of the said entry. Substantiating this evidence is the
evidence of C.W.1, the Court Witness who was the „In-Charge‟ District Medical Officer. He produced the relevant page of the Birth Register
maintained at the District Hospital. This document confirmed the date of birth of the victim as “15-02-1995â€. In addition to this, we may also refer
to the decision in wherein the parameters of gauging the age of a juvenile was set forth in Paragraph 12, the relevant portion of which reads as
follows; “12. ………………………………………………………………… 12. (3) In every case concerning a child or juvenile in
conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, by the Committee by seeking
evidence by obtainingâ€
(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a Panchayat; Under Rule 12(3)(b), it is specifically provided that only in the
absence of alternative methods described under Rules 12(3)(a)(i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule
prevailing for ascertainment of the age of a juvenile, in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose
of ascertaining the age of a victim as well.†As the victim was set to appear for her Class X Board Examination, the question of production of a
Matriculation Certificate does not arise, the date of birth from the School first attended has been furnished and proved as also the Birth Register,
establishing that the victim was not a minor as defined under Section 2 of the POCSO Act. Ofcourse it is elementary that facts admitted need not be
proved.
9. That, having been said, the evidence of the victim would inevitably point to the fact that the sexual assault was perpetrated on her by the Appellant
on 26-12-2015. The sequence of events leading to the offence have been cogently deposed by the victim, viz; that on 26-12-2005, she decided to
return home from her hostel for which she obtained permission. She went to 5th Mile to wait for the taxi of her cousin which plied on that route, as her
relatives who were to accompany her had left her and proceeded home. The Appellant instead arrived at the spot at around 5 p.m. and enquired as to
whether she was returning home and offered to drop her home. She refused finding that there were already two occupants in the vehicle and it was
filled with their luggage. However, he forcibly snatched her bag, put it into the vehicle and convinced her to board the vehicle. En route one of the
passengers got off the vehicle, followed by the second passenger a while later. Thereafter, it was her turn to get off the vehicle from which she
quickly disembarked after grabbing her bag, but the Appellant followed her although she was walking hurriedly. Midway on the path to her home, the
Appellant caught her waist from behind and according to her, “Thereafter I pushed him back and when I reached little further the accused grabbed
me and kissed me on my mouth, he opened my clothes as well as his clothes and thereafter he put his penis into my vagina. During that time, I
somehow managed to get my right hand out from his hold and slapped him twice. After that he let me go and I quickly collected my clothes and bag
and ran towards my house. After reaching certain place, I looked down and I saw he accused started his vehicle and speed away.†She would
further depose that on reaching home, she did not reveal the incident to anyone till the following day when at around 3 p.m., she confided in her cousin,
P.W.2 narrating the incident to her. On 28-12-2015, P.W.2 told the victim‟s father, P.W.10 of what P.W.1 had told her. On 29-12-2015, at around 10
a.m., the victim lodged Exhibit 1. Her statements in cross-examination did not waver from the facts deposed in her evidence-in-chief. The evidence of
P.W.2 and P.W.10 would confirm that P.W.1 had narrated the incident to P.W.2 on 27-12-2015 at around 3.30 p.m., while P.W.10 was told of it by
P.W.2, the next date, i.e., 28-12-2015, at 9 a.m. followed by the lodging of Exhibit 1 at the Police Station.
10. The records indicate that P.W.10 is a farmer. After he came to learn of the incident, he reported the matter to P.Ws 5, 6, 7 and 8. A meeting was
called where the victim confirmed before the said P.Ws of the incident that occurred on 26-12-2015. To this extent, the evidence of P.W.10 is
substantiated by the evidence of P.W.5 to P.W.9. P.W.5, the President of the Nambu Sangrangchan Samaj would testify that on 28-12-2016, at
around 10.30 a.m. P.W.10 telephonically requested him to attend a meeting at the house of the Panchayat Member, P.W.6, at Nambu, he obliged. At
the meeting, P.W.10 disclosed that the Appellant had sexually assaulted his daughter on 26-12-2015. The testimony of P.W.6, the Ward Panchayat
and P.W.7 would support the testimony of P.W.5 with regard to the meeting being held at the house of P.W.6 where P.W.10 narrated the incident of
the Appellant having committed sexual assault on his daughter on 26-12-2015. P.W.7, P.W.8 and P.W.9 would also state that the victim confirmed at
the meeting of the sexual assault perpetrated on her by the Appellant. All the witnesses supra have vouched for the fact that on weighing the gravity
of the offence, they advised P.W.10 to report the matter to the Police.
11. P.W.11, the Gynaecologist, who examined the victim on 29-12-2015 would record the following in Exhibit 9, the Medical Report, prepared by her;
“………………………………………………… Victim gives H/o being sexually assaulted by one Chenga Tshering Bhutia driver, a
resident of Nambu on 26th Dec. 15 at around 6 PM while returning from coaching classes from Darap.
LMP â€" 27/12/15
Gait â€" (N), Clothings â€" Changed
O/E â€" Vitals â€" Stable
Breast - ® old scar mark
Chest & CVS â€" NAD.
Multiple linear abrasion with scab over the upper & lower back P.A. Safe, NAD
Local examination â€
Hymen â€" Tear (+) over 6’o clock position
Fourchette â€" Tear (+)
Tenderness (+)
Pt. Mensturating (sic)
……………………………………………………………………………..
FINAL OPINION â€
The above clinical finding is suggestive of blunt injury, due to blunt force. Lab report shows presence of human semen which is suggestive of sexual
contact. ……………………………………………………………………..â€
12. As argued by Learned Counsel for the Appellant although M.O.I the vaginal swab of the victim would indicate presence of semen the scientific
test could not establish that it was of the Appellant. In such a circumstance, the question that needs to be mulled over is why would the victim concoct
an incident of rape and falsely incriminate the Appellant. In this context, when we revert to the evidence of victim, it is clear that she has been cogent,
cohesive and consistent. The evidence of sexual assault given by P.W.1 is substantiated by the Doctor, P.W.11. The medical examination has not only
revealed a hymenal tear and a tear in the fourchette with tenderness, but shown multiple linear abrasions with scab present over the upper and lower
back, lending credence to the allegation of the victim that the Appellant had thrown her on the ground and proceeded to commit the offence. 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.12 The injuries on
her genital points to the use of force. Had it been consensual the necessity of force would not have arisen.
13. That apart, P.W.10 in his evidence has admitted that he did not know whether the Appellant and the victim were in a relationship. The point of
laying emphasis on this statement is that had the victim been in a relationship with the Appellant and had the act been consensual as alleged by the
Counsel for the Appellant, there was no reason whatsoever for the victim to have divulged the incident not only to P.W.2, but also to P.W.10. It is no
one‟s case that the sexual assault was witnessed by anyone else from which it could be concluded that P.W.1 reported the incident out of trepidation
or fear of the incident being discovered. The evidence on record does not prompt this Court to elicit the view that Exhibit 1 was lodged by P.W.1 on
the pressure of her family after they got a whiff of the incident. The victim denied any relationship with the Appellant, who despite opportunity
afforded under Section 313 Cr.P.C. has made no claim of any relationship with the victim. Although Learned Counsel for the Appellant would seek to
convince this Court that the evidence of P.W.3 and P.W.4 would indicate that the Appellant was of a good character, it must be borne in mind that the
Court is concerned with evidence and the opinion of P.W.3 and P.W.4 regarding a co-villager, legally holds no weight neither can it be considered. It
goes without saying that neither P.W.3 nor P.W.4 witnessed the incident or the behavior of the Appellant after they alighted from the vehicle at
Nambu prior to the victim de boarding. No cross-examination has been conducted as to whether the victim took a bath after the offence and whether
she ventured out of the house alone after the incident till the lodging of the Complaint to enable assessment as to whether she had other sexual
encounters after the offence. This leads to the inevitable conclusion that there was no reason for the victim to concoct a story of rape on her by the
Appellant.
14. Hence, from the entire evidence on record, it emerges that the delay in lodging of the FIR was a result of the trauma suffered by the victim.
Merely because she was not a child as defined under Section 2 of the POCSO Act does not deprive her of the right of being traumatized and shocked
by the abhorrent act of the Appellant. It would be appropriate to state here that Rape has been described as “not an act of sex, but an act of
violence, with sex as the primary weaponâ€. It may lead to a wide variety or physical and psychological reactions. Victims of rape may suffer from
shock and post-traumatic stress disorder (PTSD) for which they require professional and psychological help which should be supportive.13 The victim
has admitted that she slept that night and thereafter confided in P.W.2 only the next day at 3.30 p.m. This would be as a result of the shock,
compounded by a natural instinct for self-preservation and fear of stigmatisation. The following day, P.W.2 informed the victim‟s father P.W.10.
P.W.10 clearly is not educated and would be handicapped by his lack of knowledge of the law. He has only the best interest of the victim in mind and
hastened to the witnesses as already detailed hereinabove to report the matter. In Sanjay Kumar (supra) Hon‟ble Supreme Court referring to the
decision of Bhupinder Sharma vs. State of H.P.14 would observe as follows;
“31. After thorough analysis of all relevant and attendant factors, we are of the opinion that none of the grounds, on which the High Court has
cleared the respondent, has any merit. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are
compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim
of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before
relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken
as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at
a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which
lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another
with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be
believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman
who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea
about lack of corroboration has no substance (See Bhupinder Sharma v. State of H.P.). Notwithstanding this legal position, in the instant case, we
even find enough corroborative material as well, which is discussed hereinabove.†This would be appropriate and applicable in the matter at hand.
15. The argument that the Learned Trial Court failed to alter the Charge that had been framed under the POCSO Act despite the victim being above
18 years, merits no consideration herein, as no such objection was raised before the Learned Trial Court. It is settled law that an objection cannot be
raised for the first time before the Appellate Forum when it was not made before the Court of first instance. The argument that the victim did not
escape despite having an opportunity is erroneous as also the reliance on the decision of this Court on Tula Ram (supra), for the fact that the victim in
the case referred spent the remainder of the night under the same roof as the Appellant after he allegedly sexually assaulted her and failed to raise a
hue and cry, while in the instant case the victim has freed herself and run to the shelter of her home. However, there is no merit in the argument of
Learned Public Prosecutor invoking Section 114A of the Evidence Act as it is evident that the provision applies to a charge of rape under the various
sub-clauses of Section 376(2) of the IPC.
16. In the end result, after considering the entire facts and examining and analyzing the evidence on record, no other conclusion arrives, but to concur
with the finding of the Learned Trial Court.
17. Consequently, the Conviction and Sentence handed out to the Appellant warrants no interference. The Appeal thus stands dismissed.
18. In terms of The Sikkim Compensation to Victims or his Dependents Schemes, 2011, as amended in 2016, a sum of Rs.3,00,000/- (Rupees three
lakhs) only, be made over to the victim by the Sikkim State Legal Services Authority (for short “SSLSAâ€).
19. No order as to costs.
20. Copy of this Judgment be remitted to the Learned Trial Court along with Records of the Court.
21. A copy also be sent to the Member Secretary, SSLSA forthwith for information and compliance.
