Kumar Rai vs State Of Sikkim

Meenakshi Madan Rai, J

This Appeal assails the Judgment, dated 26-02-2018 and Order on Sentence, dated 27-02-2018, of the Learned Special Judge, POCSO Act, 2012,

South Sikkim, at Namchi, in Sessions Trial (POCSO) Case No.10 of 2016, vide which the Appellant was convicted under Sections 323, 341, 307 of the

Indian Penal Code, 1860 (hereinafter, IPC) and Sections 7 and 9(r) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter,

POCSO Act, 2012). The Appellant was sentenced to undergo simple imprisonment for a period of five years and to pay a fine of Rs.5,000/- (Rupees

five thousand) only, under Section 9(r) of the POCSO Act, 2012. He was sentenced to undergo simple imprisonment for a period of three years and to

pay a fine of Rs.2,000/- (Rupees two thousand) only, under Section 7 of the POCSO Act, 2012. For the offence under Section 307 of the IPC, he was

sentenced to undergo simple imprisonment for a period of three years and to pay a fine of Rs.1,000/- (Rupees one thousand) only. All the above

sentences of fine bore default clauses of imprisonment. For the offence under Section 323 of the IPC, the convict was sentenced to undergo simple

imprisonment for a period of six months and simple imprisonment for a period of one month under Section 341 of the IPC. The sentences imposed

were ordered to run concurrently. The fine, if recovered, was to be made over to the victim as compensation.

Learned Counsel for the Appellant before this Court contended that the impugned Judgment deserves to be set aside as the Prosecution failed to

examine two ladies who allegedly witnessed the victim and the Appellant at the place where she was allegedly being sexually assaulted and

strangulated, consequently an adverse inference can be drawn against the Prosecution on this aspect. The victim P.W.1, was allegedly required to

hand over money to her aunt after which on her return walk back home the alleged incident occurred but the said aunt was neither cited as a witness

nor examined by the Prosecution to verify the evidence of P.W.1. No proof of age of the victim was furnished by the Prosecution and doubts in this

context arise as the documents on record indicate the victim‟s age to be 14, while the victim herself stated that she was 15 years. The occurrence of

the incident is doubtful as vehicles frequent the road above the place of occurrence as duly admitted by the Investigating Officer (I.O.). Infact, the

Complainant wrongly foisted the allegation on the Appellant who was arrested on mere suspicion as emanates from the I.O‟s evidence. The Medical

Officer testified that the injuries on the body of the victim could also be caused by a fall on a hard surface, hence the allegation of the victim that the

Appellant forcibly sexually assaulted her is false and fabricated as borne out by evidence. The Learned Trial Court overlooked the denials made by

the Appellant to questions put to him under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter, Cr.P.C.). Hence, the impugned

Judgment and consequent Order on Sentence deserves to be set aside.

Disputing the contentions of Learned Counsel for the Appellant, Learned Additional Public Prosecutor canvassed the argument that no error arises

in the findings of the Learned Trial Court and invited the attention of this Court to the medical examination of the Appellant which, according to him,

categorically revealed injuries on the nose and the eyelid of the Appellant indicating the fight put up by the victim in an effort to ward him off. Exhibit

11, the victim‟s medical report revealed injuries on the victim while the Doctor P.W.9 who examined her has stated that the victim gave a history of

assault with sexual intent although penetration did not occur. In light of the injuries on both the person of the victim and the Appellant the Prosecution

case is unequivocally established. No evidence controverts the age of the victim which was stated to be 15 years at the time of incident although no

documents were furnished in this context, the lack of questions in cross-examination of the victim substantiated the Prosecution stand. Consequently,

the age of the victim cannot be assailed at the appellate stage. The evidence furnished by the Prosecution and the examination of the witnesses clearly

establish that an attempt at sexual assault was made on the victim and the Learned Trial Court had correctly convicted and sentenced the Appellant,

thereby negating the necessity of interfering in the impugned Judgment and Order on Sentence.

The rival contentions advanced by Learned Counsel for the parties were heard in extenso. The evidence, documents on record, the impugned

Judgment and Order on Sentence have also been meticulously perused.

We may briefly walk through the facts of the case to understand the matter in its correct perspective. On 25-04-2016 a written Complaint, Exhibit 4

was lodged by the minor victim P.W.1 at the concerned Police Station to the effect that the same evening at around 1715 hours when she was

returning home from her aunt‟s place, an unknown person came from behind her, pushed her to a place below the road, disrobed her and forcibly

touched her private parts. When the victim screamed for help he strangulated her. The Police Station registered a Case bearing No.25/2016, dated 25-

04-2016, under Sections 307/376/341 of the IPC read with Section 4 of the POCSO Act, 2012, against an unknown person and endorsed it to the I.O.

for investigation. During the course of investigation, the Appellant was arrested and on completion of investigation which included medical examination

of the Appellant and the victim, Charge-Sheet was submitted against the Appellant under Sections 307, 376/511, 354B, 354D, 341 of the IPC and

Section 8 of the POCSO Act, 2012.

The Learned Trial Court framed Charge against the Appellant under Sections 354, 354B, 323, 307, 376/511, 341 of the IPC and Sections 9(r) and 7

of the POCSO Act, 2012. The Charge having been read over to the Appellant, he entered a plea of “not guilty†and claimed trial. In a bid to

establish its case beyond a reasonable doubt the Prosecution examined fifteen witnesses including the I.O. of the case. On closure of Prosecution

evidence, the Appellant was examined under Section 313 of the Cr.P.C. to enable him to explain the incriminating circumstances appearing in

evidence against him and his responses duly recorded. He denied his involvement. Thereafter, on conclusion of final arguments the evidence on record

was examined and analysed, following which, the Learned Trial Court pronounced the impugned Judgment and Order on Sentence.

The question that falls for consideration before this Court is whether the conviction and sentence imposed on the Appellant was erroneous?

In this context, it would be relevant to examine the evidence on record. The victim, P.W.1, testified that she was 15 years old and substantiated the

Prosecution case pertaining to the incident by stating that on 25-04-2016 her mother had asked her to take some money to her aunt. She went walking

to her aunt‟s house, en route she noticed the Appellant following her. After completing the errand she started back home and again saw the Appellant

following her. She even enquired from him as to why he was following her to which he did not reply but instead forced her to an isolated jungle below

the road. He pushed her to the ground, scratched her face, hit her and tried to put his hands on her private part. Despite her resistance he took off her

trousers and to prevent her from screaming inserted something into her mouth, covered her face with his jacket and attempted to strangulate her.

After sometime two ladies arrived on the road above the spot and on witnessing the incident protested the action of the Appellant, but was told by him

to leave. Meanwhile, another person also reached the spot and they began throwing stones at the Appellant who consequently left the victim and ran

away. Some girls came to the spot and helped the victim to dress. She gave her mother‟s number to someone at the spot who called her mother

P.W.3 who in turn reached the spot and took her to the hospital. She identified Exhibit 4 as the Complaint filed by her and Exhibit 5 as the formal FIR

wherein she had affixed her signature. She deposed that her date of birth was 02-02-2012. During cross-examination although an effort was made to

insinuate that she had seen the Appellant in the Namchi Jail before the Test Identification Parade, she denied the said suggestion and asserted that she

had never seen the Appellant prior to the incident.

P.W.2 an eye-witness to the incident who reached the spot after being called there by two students and found two ladies also on the road. He

witnessed the Appellant assaulting the victim below the road. The victim was screaming. He flung a stone at the assailant who left the spot thereafter.

The victim was assisted by the school girls to dress. On the arrival of P.W.3 at the spot, they evacuated P.W.1 to the hospital. P.W.2 categorically

identified Exhibit 6 as a photograph of the place of occurrence and Exhibit 7 as the photograph of the road where the two ladies and two school girls

were standing. His evidence withstood the cross-examination. The evidence of P.W.3 the mother of the victim was in tandem with her daughter‟s

evidence and that of P.W.2. She specified that she received a phone call from an unknown number on her mobile and rushed to the place of

occurrence where she found her daughter drenched in blood with injuries and crying and immediately evacuated her to the hospital. P.W.1 narrated

the incident to P.W.3. These facts have been consistently and cogently stated by P.W.3. P.W.4 the Judicial Magistrate who recorded the statement of

the victim under Section 164 of the Cr.P.C. stated that the minor victim gave details about the sexual assault on her and when the Test Identification

Parade was conducted by P.W.4 the victim correctly identified the Appellant as evident from Exhibit 1.

The Doctor P.W.5 who examined the victim in the first instance, on the relevant evening, found injuries on the victim which were duly recorded by

him on Exhibit 11, the Medical Report. P.W.5 would state as follows;

“On 25.04.2016, at about 7.45 p.m, I examined the minor victim, aged about 14 years, daughter of Gokul Pradhan, resident of Bhutia Busty,

Namchi ....... On local examination, there was swelling over the right upper lip. There was scratch abrasions(multiple in number) each measuring

approximately 1 x 1.5 cm in length over right side of neck and another one over the thyroid cartilage running laterally towards the left side

approximately 1.5 x 2 cm in length. There was reddish bluish contusion over right side of the neck measuring approximately 5 x 5 cms. Face covered

with dried blood. No bone crepts (sic crepitus) felt. The patient was conscious, oriented to time, place and person. No history of loss of consciousness,

vomiting, ENT bleed or seizure. Gait was normal. Vitals were within normal limit. The patient gave history of assault with sexual intent. However,

according to her, the act of penetration did not occur. On the basis of the external examination, I was of the opinion that the patient had suffered

simple injury. The Gynaecologist, District Hospital, Namchi was consulted over phone and she was forwarded to him for further examination and

opinion. …………â€​

The cross-examination of this witness could not demolish the findings recorded by him in Exhibit 11.

P.W.9 the Gynaecologist who examined the victim noted as follows;

“On 25.04.2016, the Medical Officer on duty forwarded the minor victim with an alleged history of sexual assault. The consent for medical

examination was given by the mother of the minor victim. On examination, there were multiple abrasions, contusions all over the face, swelling of right

upper lip was noted. There was abrasions on the anterior aspect of the neck. On genital examination, the minor victim was menstruating at the

relevant time of examination. Her hymen was intact. I collected the vulvo-vaginal swab and wash for pathological examination which gave negative

results. The underwear of the minor victim was collected and handed over to the police. Impression:- External bodily injuries were noted on the face,

however, there was no evidence to suggest forceful sexual intercourse. Exhibit-8 is the medico legal examination report prepared by me wherein

Exhibit-8(b) is my signature. Exhibit-15 is the cytopathology report which I consulted before giving my final opinion.â€​

The evidence of P.W.9 was thus consistent and corroborative of the findings of P.W.5. P.W.9 also concluded that there was no evidence to suggest

forcible sexual intercourse. This validates the stance of P.W.1 who stated that there was no penetrative sexual assault.

P.W.6, another Doctor posted at the concerned District Hospital medically examined the Appellant, after the incident on the same day at 10.15

p.m. On local examination, he detected the following on the face of the Appellant;

“............. Local examination ─ An abrasion on the nose approximately 0.5 cm x 0.25 cm. An abrasion in the left upper eyelid - 0.25 cm. The

injuries sustained by the accused was found to be simple in nature. ............â€​

The Prosecution case stood substantiated also by the evidence of P.W.7 a passer-by on the same road. At around 06.20 p.m. he saw a gathering

of people near the road at the place of occurrence. He stopped his vehicle and was told by persons assembled there that a girl was raped below the

road. He saw the girl being assisted by two girls in school uniform. Her face and body was smeared with blood. She had scratches on her face and

was crying. He also saw the blood stained jacket on the ground and immediately informed the Police of the incident. Admittedly, he did not see the

Appellant at the place of occurrence at the relevant time. The evidence of P.W.7 as can be seen is corroborative of the evidence of P.Ws 1, 2 and 3

to the extent of confirming the place of occurrence and injuries on the victim. The evidence of P.W.8 who was witness to the seizure of M.O.II the

jacket withstood cross-examination. He also identified M.O.IV as the ladies wrist watch seized from the spot on the relevant evening. The evidence

of P.W.1 that she had lodged Exhibit 4 was duly supported by the evidence of P.W.14 and P.W.15 the first I.O. and the second I.O. of the case

respectively. The case was endorsed initially to P.W.14 for investigation and she traced out the Appellant in his house between 8-9 p.m., the same

day. The identification of the Appellant as the perpetrator of the offence was not demolished. P.W.12 a Doctor, at the District Hospital obtained the

blood sample of the minor victim and identified M.O.X as the vial containing the blood sample. P.W.13 a Pathologist drew the blood sample of 2 ml. of

the Appellant and identified M.O.VIII as the vial containing the blood. Both M.O.X and M.O.VIII were later forwarded by P.W.15 for chemical

analysis to the Regional Forensic Science Laboratory (RFSL), Saramsa, East Sikkim.

P.W.15 took up investigation of the case after P.W.14, on the directions of the concerned SHO. He forwarded material exhibits, i.e., panty of the

victim M.O. I; vaginal swab of the victim M.O.V; vaginal wash of the victim M.O.VI; penile swab of the Appellant M.O.VII; penile wash of the

Appellant M.O.IX; jacket of the Appellant M.O.II; track pant (inner wear of the Appellant) M.O.III; blood sample of the Appellant M.O.VIII and

blood sample of the victim M.O.X, to the RFSL, for chemical examination and report. According to P.W.15, he received the RFSL Report, Exhibit 18,

in two pages wherein it was revealed that the blood sample of the Appellant tested positive for the blood group „A‟. Human semen of blood Group

„A‟ was detected in the panty of the minor victim (M.O.I) and in her vaginal wash (M.O.V) by P.W.11, the Junior Scientific Officer, in the Biology

Division of the RFSL who examined the aforestated objects. P.W.11 submitted Exhibit 18 in two pages which he identified as his Report and Exhibit

19 as the concerned forwarding letter of RFSL Director. The evidence so given was undemolished.

The argument that the two ladies who witnessed the incident were not made witnesses to the case is of no import. It is settled law that the Court

is to consider qualitative and not quantitative evidence/witnesses. Where cogent and consistent evidence of the victim finds corroborative support in

medical evidence and other scientific evidence also substantiates the Prosecution case, it is not necessary to haul every witness to the incident to

Court. The errand run by the victim to her aunt‟s house is peripheral to the incident and does not require the aunt‟s evidence. The presence of both

the Appellant and the victim at the spot have been confirmed and remained undecimated despite prolonged cross-examination of the witnesses.

Hence, the argument regarding the non-examination of the victim‟s aunt bears no negative consequence to the Prosecution case. The evidence of the

eye-witnesses establish the occurrence of the incident and the veracity of the statement of every eye-witness stood corroborated by the evidence of

the other witness.

A tentative submission was advanced by Learned Counsel for the Appellant pertaining to the age of the victim and it was urged that discrepancies

emerged in the age of the victim as revealed by records of the case which has indicated her age to be 14. The victim contrarily stated her age to be

In my considered opinion, this is an argument raised rather belatedly before the Appellate Forum, sans efforts to demolish her evidence pertaining

to her age before the Learned Trial Court. It needs no reiteration that issues not raised before the Learned Trial Court cannot for the first time find

place before an Appellate Court. The evidence on record is sufficient to establish that the victim was a minor and any argument to the contrary with

no substantiation brooks no consideration.

From the evidence on record, the conclusion that can be drawn is that the Appellant waylaid the victim when she was returning from an errand at

her aunt‟s house and thereafter attempted to sexually assault her. A furious resistance was put up by the victim against the Appellant as apparent

from the ocular evidence and Exhibit 11 her Medical Report and the injuries found on the Appellant, vide Exhibit 12. He was unsuccessful in his

attempt to further sexually assault the victim after he had forcibly touched her body. The fact that he undressed and fondled her is indicative of his

sexual intent. It is also the admitted case of the victim that there was no penetration despite the sexual assault. In such a circumstance, the evidence

of P.W.11 Junior Scientific Officer who detected human semen in the undergarment of the victim M.O.I and in M.O.V the vaginal swab of the victim

does not require further consideration.

Consequently, no error arises in the conclusion of the Learned Trial Court as regards the conviction or the sentence.

In the end result, the Appeal is dismissed.

No order as to costs.

Copy of this Judgment be forwarded to the Learned Trial Court for information, along with its records.