Milan Rai - Appellant @HASH State of Sikkim

Mrs. Meenakshi Madan Rai, J.- The appellant was convicted by the Learned Special Judge (POCSO Act, 2012), South Sikkim at Namchi, in Session Trial (POCSO), Case No. 16 of 2014, by judgment and Order on Sentence dated 30-5-2015, under Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012 (for short "POCSO Act"), read with Section 376(2) of the Indian Penal Code, 1860 (for short "IPC") sentencing him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 50,000/- (Rupees fifty thousand) only, with a default stipulation. This Appeal assails both.

The Prosecution case unfolded that on 18-8-2014, a written FIR, Exhibit 7, was lodged by one Lucky Rai, P.W.5 of Lungchok, South Sikkim, informing therein that the victim, aged about 15 years, had been sexually assaulted by Milan Rai, the Appellant herein, and also by one Jiwan Kumar Rai, both allegedly her cousins. Based on the FIR, Jorethang P.S. Case was registered on 18-8-2014 under Section 376 of the IPC read with Section 8 of the POCSO Act, against both the above named persons and endorsed to the Investigating Officer (for short "I.O.") for investigation. Investigation led to the finding that, the victim was a Seventh Standard Student of Namchi Girls School, a boarder in a hostel at Singhithang, Namchi, South Sikkim, who returned home to Lungchok, South Sikkim, for Vacations. On 11-1-2014, after attending a birthday party, Jiwan Kumar Rai volunteered to escort her back home where en-route he enticed her to a nearby field and forcibly raped her. Sometime in mid-January, 2014, he raped her for a second time when she had gone to attend the death rituals of her aunt, this time too, having volunteered to escort her back home and en-route dragged her to a field near her home and committed the offence.

Investigation also revealed that one day the Appellant in the absence of the victims mother, went to the victim�s house. At night, she told him to sleep in her brother�s room, but when she was asleep, the Appellant crept into her room and had sexual intercourse with her, against her will. The above three incidents were not reported by the victim to anyone. It is the Prosecution case that, again during the summer vacations when she returned home, Jiwan Kumar Rai raped her once more, consequently after a few months the victim exhibited outward signs of pregnancy. The elder sister of Jiwan Kumar Rai learning that her brother was responsible for the victim�s condition, took her to Kalimpong for medical checkup, after consulting both their families, but Jiwan Kumar Rai constantly persuaded the victim to opt for an abortion. Later, when the victim�s elder sister learnt of the incident, she reported the matter to Jorethang Police Station and after investigation, Charge-sheet was submitted against the Accused Jiwan Kumar Rai for the offence under Section 376(2) (n) read with Section 506 of the IPC and under Section 6 of the POCSO Act. Against the Appellant, charge-sheet was filed under Section 376(2) of the IPC and Section 6 of the POCSO Act.

Records of the Learned Trial Court reveal that the trial of Jiwan Kumar Rai and the Appellant were bifurcated, the case against Jiwan Kumar Rai being numbered as ST (POCSO) Case No. 13 of 2014 while that against the appellant was recorded as ST (POCSO) Case No. 16 of 2014 and trials conducted separately.

The Learned Trial Court framed charges against the Appellant under Sections 3 and 4 of the POCSO Act and Section 376(2) of the IPC and on a plea of "Not guilty", evidence was led by the Prosecution by examining fifteen witnesses in an effort to establish its case beyond reasonable doubt. To disprove the Prosecution case, the Appellant examined one witness Sajan Kumar Gurung as DW1. The Learned Trial Court on consideration of the evidence, convicted the Appellant as adumbrated here in above.

Before this Court, the arguments raised by Learned Counsel for the appeal were that, the Court failed to appreciate that there was a delay of about seven months in lodging the FIR for which no satisfactory reasons have been assigned. That, the Paternity Test against the Appellant is negative, apart from which the P. W. 1 has stated in her examination-in-chief that, when the matter was verified from P.W.4 by some villagers she told them that Jiwan Kumar Rai was responsible for her pregnancy. Thus, benefit of doubt ought to be extended to the appellant and the impugned judgment and order set aside.

Per contra, it was urged by Learned Additional Public Prosecutor that, the findings of the Learned Trial Court have been reached on a proper analysis of the evidence on record and, therefore, ought not to be disturbed.

I have heard the rival contentions of Learned Counsel at length. I have also carefully perused the entire documents on record including the evidence and the impugned judgment and order on sentence.

Before proceeding further, in the first instance, it has to be pointed out that the Learned Trial Court has framed a blanket charge under Section 376(2) of the IPC against the Appellant. A bare reading of Section 376 of the IPC would indicate that the Section consists of two sub-sections being Section 376(1) and Section 376(2). Section 376(2) consists of sub-section(a) to (h) describing various categories of rape. However, considering that no arguments have been advanced on the shortfall in the charge nor is there claim of any prejudice caused to the appellant, and since the charge reveals that the appellant had committed penetrative assault on the minor victim aged about 14 years, it is assumed that the charge was under Section 376(2)(i) of the IPC.

Having said that, the first point that falls for consideration before this court is, whether the victim was actually 14 years of age and whether the prosecution has established this fact beyond a reasonable doubt.

Exhibit 6 is a photocopy of the Birth Certificate of the victim, certified to be a true copy, showing her date of birth to be "22-07-1999". As the offence was allegedly committed sometime in the beginning of the year 2014, if Exhibit 6 is to be considered it makes the victim a little above fourteen and a half years at the time of the incident. Exhibit 6 was allegedly seized vide Exhibit 16, the Seizure Memo, in the presence of two witnesses from the possession of one Manita Rai allegedly the cousin of the victim, as per P.W.15 the I.O., in the presence of P.W.12 one Kiran Kumar Lamichaney. The second witness to seizure of Exhibit 6 is P.W. 14 one Chime Yongda Bhutia, Constable posted at Jorethang P.S. The person from whose possession Exhibit 6 was seized was curiously not made a witness in the instant matter. It is not revealed as to how she came to be in possession of the Birth Certificate of the victim. Admittedly the victim�s mother is alive. It is not the prosecution case that the victim was living with Manita Rai, to enable this Court to draw an assumption that all the belongings of P.W.4 were with her. It is indeed under mysterious circumstances that the seizure of Exhibit 6 has been made, besides which both P.W.12 and P.W. 14 have deposed that it was seized at the Police Station. Notice is also to be taken of the fact that P.W. 14 is a Police Constable, therefore, her evidence has to be considered cautiously not because she is a Police Constable but in consideration of the circumstances surrounding the seizure. The victim, on enquiry from the Court has stated that, she is 15 years old, apart from this evidence there is no other witness who has deposed about the age of the victim. P.W. 1 allegedly the cousin of the victim, has not been able to vouch for the age of the victim. P.W.5 said to be another elder sister of the victim has also not shed any light on the age of the victim. That, having been said it may be reiterated here that, Exhibit 6 is only a photocopy of the original Birth Certificate having been certified to be a true copy. The person certifying it, has not been made a witness in the instant matter, nor reasons put forth for non-availability of the original. The date of certification finds no place on Exhibit 6. None of the witnesses have proved the contents of the document. No School Admission Register to substantiate the contents of Exhibit 6, or any entry made in the records of the concerned Department which issued Exhibit 6 has been relied upon by the prosecution. Thus, the above grounds would render Exhibit 6 inadmissible as proof of its contents are not substantially in the form directed by law, consequently no presumption can be drawn in terms of Section 79 of the Indian Evidence Act, 1872. In the absence of clear and adequate proof of the age of the victim, merely because she was in Class VII, it cannot be assumed that, she was aged about 15 years. The mother of the victim who could have thrown light on the age of the victim was rather unfortunately not made a witness in the matter. The evidence of P.W.5 also reveals that the victim has an elder brother and another sister who were not made witnesses but could have been of assistance to the prosecution case to establish the victim�s age. Thus, the prosecution has failed in the first instance to establish the correct age of the victim to bring her within the ambit of the protection of Section 376(2)(i) of the IPC or under the POCSO Act.

Having said that, now the next question that arises for determination is, whether the victim had been sexually assaulted against her wishes, thereby making the Appellant liable for the offence of rape. The victim P.W.4, in her evidence has stated that, the appellant raped her sometime in the month of February, 2014, when she was alone at home. According to her "He stayed in my house the whole day, that night he stayed in my house. As there was no one else in the house he raped me that night." Under cross-examination, however, she admitted that "It is true that I did not struggle to save myself when accused Milan was raping me. It is true that accused Milan and my family members have political rivalry. It is not a fact that accused Milan is not responsible for making me pregnant." Bearing the last sentence in mind, we may briefly consider the evidence of P.W. 15, the I.O. of the case, who has stated that the blood samples of the minor victim, her baby and the appellant as well as of Jiwan Kumar Rai were obtained and forwarded to the State Forensic Science Laboratory in Tripura for analysis wherein Exhibit 18, the Report thereof, confirmed that Jiwan Kumar Rai was the biological father of the baby. The Chemical Examiner was not furnished as a prosecution witness in the instant case. In such a circumstance, even if this evidence is to be disregarded there is no evidence whatsoever to establish the prosecution case of rape. No effort has been made during investigation to establish that the appellant had spent the night in the home of the victim. P.W.l has deposed that when some of the villagers verified from P.W.4, she told them that accused Jiwan had impregnated her, but on enquiry by P.W.l, P.W.4 told her that on one occasion the appellant had stayed with her in her house (overnight), she has not told P.W.l that the appellant had raped her. Her statements, therefore, vacillate depending on who she is making it to, thus being inconsistent does not inspire confidence and, therefore, merits no consideration. Her statement under cross-examination to the effect that she did not struggle to save here self when she was being raped cannot be overlooked.

The victim at no point has asserted that the appellant had held out a threat to her or assaulted her pursuant to which he raped her. She admits that she did not inform anyone that he was staying in her house the relevant night. She has merely stated as a matter of fact that the appellant stayed at her home and at night raped her. It goes without saying that the prosecution is required to prove its case beyond a reasonable doubt, where any discrepancy or doubt in the prosecution case arises, the benefit is to be extended to the accused person.

In Suchand Pal v. Phani Pal and another : (2003) 11 SCC 527 : (2004 Cri LJ 628), the Hon�ble Apex Court held as follows:

"8........................The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent "

All the above facts and circumstances appear to have contributed to the belated lodging of the FIR, which in any event requires no further discussion.

After careful consideration of the entire evidence on record, I am constrained to opine that the prosecution case fails and the impugned judgment of the Learned Trial Court convicting the appellant under Section 3/4 of the POCSO Act read with Section 376(2) of the IPC and the consequent sentence is set aside. The appellant is acquitted of the charges and he be set at liberty forthwith if not required in any other matter.

Appeal is allowed.

Fine, if any, deposited by the appellant in terms of the impugned order on sentence, be reimbursed to him.

Copy of this judgment be forwarded to the Learned Court below for information and compliance.

Records of the Learned Trial Court be remitted forthwith.