Palden Sherpa vs State Of Sikkim

Bhaskar Raj Pradhan, J

The Appellant seeks to assail the judgment of conviction dated 15.11.2018 and the order on sentence dated 16.11.2018 passed by the learned

Special Judge, Protection of Children from Sexual Offences Act, 2012 (POCSO Act) in Sessions Trial (POCSO) Case No.10 of 2017. The Appellant

was convicted under Section 3(a) of the POCSO Act and sentenced to seven years of rigorous imprisonment and a fine of Rs.5,000/-. He was also

convicted under Section 341 of the Indian Penal Code (IPC) and sentenced to simple imprisonment for a period of one month and a fine of Rs.1000/-.

Ms. Tamanna Chettri, learned Legal Aid Counsel for the Appellant challenged the judgment and sentence on two grounds. It was submitted that the

age of the victim was not proved. It was further submitted that the medical evidence disproves the case of the prosecution of penetrative sexual

assault. Mr. S. K. Chettri learned Assistant Public Prosecutor per contra submitted that the victim’s evidence cannot be doubted; the identification

of the Appellant is certain; the prosecution had been able to prove the age of the victim before the trial Court and there is no conflict between medical

and ocular evidence.

Age of the victim

Determination of the age of the victim during the trial for offences under the POCSO Act is imperative. The learned Special Judge has examined

the birth certificate (exhibit-2) and the deposition of Dr. Amber Subba, Medical Officer-(P.W.24) who had issued the said certificate; Certificate

(exhibit-6) issued by the Head Mistress (P.W.9) of the Government School attended by the victim and the person who issued it and the bone age

estimation of the victim (exhibit-17) and Dr. K. Giri-(P.W.16) who conducted the bone age estimation and came to the conclusion that the victim was

a minor.

The victim’s mother-(P.W.2) deposed that the victim was 12 years and studying in Class VIII in a Government School. The victim’s step

father-(P.W.3) also stated that the victim was aged about 12-13 years and studying in Class VIII in a Government School. The victim’s elder

brother (P.W.19) deposed that the victim was 13 years during the relevant period. The victim (P.W.1) herself informed the Court that she was 13

years old and studying in Class VIII. The defence has not been able to demolish the oral evidence of persons who would know the age of the victim

asserting that the victim was in fact a minor. The birth certificate (exhibit-2) of the victim was seized from the mother (P.W.2) of the victim. She

would be its custodian. The birth certificate-(exhibit-2) records the victim’s date of birth as 21.04.2004. The birth certificate was proved by its

maker i.e. Dr. Amber Subba, Medical Officer-(P.W.24) who not only identified his signature on it but also stated that the birth certificate was issued

after verification of the relevant document presented for registration of the birth like the certificate of identification of the father, voter identity card of

the parents, antenatal check up card/immunization card of the mother and the infant and the birth report from the ICDS (pink card). He vouched for

the correctness of the entries contained in the birth certificate (exhibit-2). The birth certificate is a public document and the issuer a public servant.

The Head Mistress (P.W.9) of the Government School where the victim studied till 13.02.2017 proved the certificate (exhibit-6) issued by her under

her signature which also recorded the date of the birth of the victim as 21.04.2004. Ms. Tamanna Chettri submitted that since the prosecution failed to

produce the register of births and deaths and the school admission register the age of the victim has not been proved. The oral evidence of the mother

(P.W.2), step father (P.W.3), elder brother (P.W.4) and the victim (P.W.1) herself is corroborated by the birth certificate (exhibit-2) and the

certificate (exhibit-6) of the Head Mistress (P.W.9) proved by its makers. Taking the victim’s date of birth to be 21.04.2004 and the date of

incident as 21.12.2016 she would be exactly 12 years and 8 months. The evidence produced by the prosecution cogently proves that the victim was in

fact a minor at the time of the commission of the offence and the failure of the prosecution to produce the register of births and deaths and the school

register does not in any way dilute the evidence.

The evidence of the crime and the medical evidence

The victim (P.W.1) has given a detailed account of what transpired that fateful day. During the relevant period she was residing with her school

teacher. Her parents used to reside at PK*. She had gone to visit her parents. That day her mother (P.W.2) and her elder brother (P.W.19) had gone

to the hospital and her father (P.W.3) was at home as he was not keeping well. She had also gone to the house of the Appellant located near her

house but he was not present as he had gone to KG*. The wife of the Appellant told her that she should meet the Appellant and ask for Rs.100/-

which she needed for her household purposes. Accordingly the victim went to KG* and asked the Appellant for Rs.100/- as instructed by his wife.

The Appellant purchased a “wai wai†for the victim but did not give Rs.100/- as requested by his wife. Thereafter, she and the Appellant went to

the house of one “Baraâ€​ located some distance from the victim’s house. The said “Baraâ€​ switched on the television set and the Appellant

and the victim watched television. The “Bara†was also present. The Appellant had some “jar†(local brew) and the victim had tea.

Thereafter, the “Bara†asked the victim to go home as it was getting late. The Appellant left towards KG* and the victim left for her residence.

When the victim was walking up a short cut route to her residence, she saw the Appellant following her instead of proceeding towards KG*. The

Appellant met the victim on the way and suggested that there was another short cut to her residence and led her on the said route. While she was

walking along the route the Appellant followed her. After following the victim for sometime the Appellant led her to a bushy place. The Appellant

suddenly caught hold of the victim and pulled down her slacks and underwear that she was wearing. The Appellant then pulled the victim down on the

ground. He opened the zip of the jeans. The Appellant shut her mouth with his hand and inserted his penis into the victim’s vagina. When she told

the Appellant that she would narrate the incident to her mother (P.W.2), he told her that he was not scared. The Appellant left her there and ran away

from the place. The victim then put on her clothes which were smeared with white coloured substance. She went home and narrated the incident to

her father (P.W.3) who called the mother (P.W.2) over her mobile phone and informed her of the same. Thereafter, when her mother (P.W.2) and

her elder brother (P.W.19) returned home the victim narrated about the incident to them as well. The victim’s elder brother (P.W.19) then

reported the matter to the Pakyong Police Station. The victim also gave a statement (exhibit-1) to a Magistrate. She identified her signature on her

statement recorded by the Magistrate. The victim identified her purple colored underwear, black colored slacks and white and grey colored frock

which she was wearing that day and seized by the police at the Pakyong Police Station. The victim’s evidence remained unscathed even after

cross-examination.

The fact that the victim narrated about the incident to her family members immediately after the incident is corroborated by the deposition of her

mother (P.W.2), her step fathers (P.W.3) and her brother (P.W.19). The victim’s brother deposed that the same evening he lodged the First

Information Report (FIR) (exhibit-21) after the victim told him about the commission of penetrative sexual assault on her. The FIR (exhibit-21) reports

about the rape committed by the Appellant upon the victim (P.W.1).

The identification of the Appellant as the perpetrator of the crime by the victim cannot be doubted. The victim was known to the Appellant. The

victim identified the Appellant as the person whose house she had visited on the relevant day and who she would address as “Mamaâ€. The fact

that the Appellant was a fellow villager is corroborated by the victim’s mother (P.W.2), victim’s step father (P.W.3), victim’s uncle

(P.W.5), victim’s aunt (P.W.6) and victim’s brother (P.W.19).

P.W.20 identified the Appellant as a mason working in his house and also resident of the same village during the relevant period. He corroborated

the victim’s evidence that she had gone to the house of one “Baraâ€​ to watch television. According to P.W.20 on that day the victim had come

to his residence and requested him to allow her to watch television. Accordingly, he turned on the television for her. The Appellant who was already

present at his residence watched television with the victim for some time. However, after some time P.W.20 asked the victim to leave his residence

and return to her residence as it was late. Accordingly, the victim left his residence and proceeded towards her residence. After some time the

Appellant also followed her. The next morning the Appellant came to his residence at around 6 a.m. and requested him for a loan of Rs.300/- but

since he did not have change he asked the Appellant to come later after which he left. Later P.W.20 came to know that the Appellant had sexually

assaulted the victim. During cross-examination P.W.20 admitted that the Appellant left the house about half an hour after the victim and that the

victim’s house is about 20-25 minutes’ walk from his house. The learned defence Counsel drew the attention of this Court to this admission

and submitted that this statement would disprove the victim’s version. This is a minor discrepancy which does not shake the substratum of the

prosecution case. The deposition of P.W.20 confirms that the victim and the Appellant were together that day.

The victim’s uncle (P.W.5) and aunt (P.W.6) deposed that on the relevant day they and the Appellant had gone to look for work. They did not

meet the concerned person and so they returned. On their way back they stopped at the house of one KK** who invited them for refreshments. The

victim also reached while they were still there. Both the witnesses stated that the victim and the Appellant left the house of KK**. They confirmed

seeing the victim and the Appellant together that day.

There was evidently no eye witness to the crime. The victim’s statement stands alone. There is also no evidence that the learned defence

Counsel could point out which would even remotely suggest that the victim was not speaking the truth. There was no reason for her to lie too.

The incident is reported to have occurred on 21.12.2016. On 20.01.2017 the learned Judicial Magistrate (P.W.14) recorded the victim’s

statement under Section 164 of the Code of Criminal Procedure, 1973 (Cr.P.C.). The victim narrated what happened to her on 21.12.2016 to the

learned Judicial Magistrate (P.W.14). The statement (exhibit-1) of the victim recorded by the learned Judicial Magistrate (P.W.14) has been proved

by the victim as well as the learned Judicial Magistrate (P.W.14). The statement (exhibit-1) of the victim corroborates her deposition in Court.

On 22.12.2016 the Investigating Officer (P.W.25) seized one purple coloured undergarment with white and black (butterfly) printed having white

patches, one black coloured lower pant having white patches and one white and grey coloured frock with brown belt and printed flowers (red, blue

and yellow colours), torn on the upper part from the victim at the Pakyong Police Station. P.W.15 confirmed he was the seizure witness but he could

not identify the seized wearing apparels of the victim. P.W.21 was the second seizure witness to the seizure memo (exhibit-15). He identified all the

wearing apparels of the victim seized by the police. The Investigating Officer (P.W.25) stated that he had seized the wearing apparels of the victim

said to have been worn by the victim at the time of the incident. The victim’s statement that her wearing apparels were seized by the police is

adequately corroborated.

On the same day the Investigating Officer (P.W.25) also seized one navy blue colored undergarment with patches of white stains and one black

colored half pant from the Appellant at the Pakyong Police Station. P.W.7 whose taxi was hired by the police for taking the victim, her mother

(P.W.2) and one lady constable to STNM Hospital witnessed the seizure of the wearing apparels of the Appellant. Dr. O. T. Lepcha (P.W.10) the

Medico Legal Consultant examined the Appellant on 22.12.2016. He found no injury during genital examination. Smegma was however absent. He

opined that there was nothing to suggest that the Appellant was incapable of sexual intercourse. Dr. Tsewang Donka Bhutia (P.W.18) also examined

the Appellant the same day. According to her observation his penis was normal and he was capable of having sexual intercourse. She also collected

the blood sample of the victim.

The said wearing apparels of the victim and the Appellant along with the victim’s blood sample and her vaginal wash were sent for forensic

examination and it was received by the Regional Forensic Science Laboratory Sikkim (RFSL) on 09.01.2017. Pooja Lohar (P.W.13), Analyst and

Assistant Chemical Examiner of RFSL tested the wearing apparels along with other exhibits between 11.01.2017 to 30.01.2017 and submitted her

report (exhibit-10). The victim’s blood gave positive test for blood group AB Rh+. Human body fluid could be detected in the purple colored

underwear of the victim and it gave positive test for the blood group AB but gave negative test for the presence of human semen. Blood, semen or

any other human body fluid could not be detected in the vaginal wash of the victim, black colored legging of the victim, white and grey colored frock

with brown belt and multi colored flowery prints of the victim. Human body fluid could be detected in the navy blue colored underwear of the

Appellant however it gave negative result for the presence of human semen. Blood, semen or any other human body fluid could not be detected in the

black colored trouser of the Appellant. The vaginal wash of the victim which was obtained by Dr. Paras Mani Karki (P.W.22) on 22.02.2016 was

sent for examination. However, the cytopathology report (exhibit-8) prepared by Dr. Sangita Bhandari (P.W.11) could not detect motile or non motile

spermatozoa. The learned defence Counsel therefore submitted that the prosecution had failed to corroborate the statement of the victim about the

penetrative sexual assault committed.

The victim deposed that after the Appellant inserted his penis into her vagina she put on her clothes which were smeared with white coloured

substance. The victim was examined by Dr. Tsewang Donka Bhutia (P.W.18) who was the Medical Officer. She deposed that when she examined

the victim on 22.12.2016 her lower black pants had fresh white patches. The seizure memo (exhibit 15) also recorded the seizure of the black coloured

lower pant with white patches.

Dr. Tsewang Donka Bhutia (P.W.18) detected multiple small abrasions (around nine in number) over both hands of the victim. She found that her

clothes, the upper shirt was torn, lower black pants had white fresh patches. The victim complained of slight pain over the breast and nipple, she also

detected a whitish discharge from the perineum area of the vagina. After collection of the victim’s blood sample and handing it over to the

Pakyong Police Station she referred the victim to STNM Hospital for OBG consultation.

Dr. Paras Mani Karki (P.W.22) Senior Specialist of Obstetrics and Gynecology at the STNM Hospital also examined the victim on 22.12.2016.

The victim told him that she was sexually assaulted by the Appellant on 21.12.2016. The victim complained of fondling of the breast and sexual

intercourse by the Appellant. On examination he found that there was no perennial injury and active bleeding. He noticed that the vagina admitted

index finger at ease. Based on his examination he opined that there was no forceful penetration of the vagina “as the injury to it was not that

severeâ€​. He also opined that however, sexual intercourse could not be ruled out.

The victim’s comprehensive deposition with specific details of the incident and the surrounding circumstances has been sufficiently

corroborated by the oral evidence of the prosecution witnesses, medical evidence as well as material evidence. The victim was examined the very

next day of the incident. Dr. Tsewang Donka Bhutia (P.W.18) noticed not only the fresh white patches on the black lower pants of the victim but also

that her shirt was torn. She also noticed multiple small abrasions on both the hands of the victim. These are telltale sign of the assault. These evidence

also suggests the struggle of the victim during the assault. Dr. O. T. Lepcha (P.W.10) noticed absence of smegma on the Appellant’s penis which

may also be suggestive of recent sexual intercourse. The inevitable cumulative conclusion from the oral evidence of the victim, the material and

medical evidence collected and proved by the prosecution is that the Appellant had in fact committed penetrative sexual assault on the victim and

thereafter ejaculated on her wearing apparels. Contrary to the submission made by the learned defence Counsel the medical evidence does

corroborate the statement of the victim about the assault. There is no contradiction between the ocular evidence and the medical evidence. The

Appellant has been convicted for the offence under Section 3(a) of the POCSO Act under which penetration of the penis to any extent into the vagina

amounts to penetrative sexual assault. Lack of injury on the genital of the victim is not conclusive proof that the Appellant had not committed

penetrative sexual assault on her. The deposition of the victim does inspire complete confidence. This Court is of the view that the judgment of

conviction passed by the learned Special Judge for the offence under Section 3 (a) of the POCSO Act cannot be faulted.

In view of Section 71 IPC, the conviction under Section 341 IPC is not sustainable as the deposition of the victim suggests that the offence of

wrongful restraint was part of the offence of penetrative sexual assault committed by the Appellant.

Accordingly, the conviction under Section 341 IPC is set aside.

The learned Special Judge has sentenced the Appellant to seven years of rigorous imprisonment and fine of Rs.5000/- for the offence of

penetrative sexual assault punishable under Section 4 of the POCSO Act. That was the minimum sentence prescribed. The sentence imposed is

sustained. The period of imprisonment already undergone by the Appellant during investigation and trial shall be set off against the sentence imposed.

The learned Special Judge has granted compensation of Rs.1 lakh to the victim under the Sikkim Compensation to Victim or his Dependent’s

Scheme, 2011 for the offence committed on her on 21.12.2016. The Sikkim Compensation to Victim or his Dependent’s (Amendment) Scheme,

2016 was brought into force on 25.11.2016. Thus the victim is entitled to Rs.3 lakhs as provided under the amended schedule. The order of

compensation is therefore modified. The victim shall be granted compensation of Rs.3 lakhs. As the victim is still a minor the compensation amount

shall be deposited in a fixed deposit in the account of the victim payable on her attaining majority. If the victim does not have a bank account the

Sikkim State Legal Services Authority (SSLSA) shall assist the victim to open her account in any scheduled bank located in or nearest to the

residence of the victim.

The appeal is partly allowed on the above terms. The Appellant is in jail. He shall remain there and serve the rest of the sentence.

A copy of the judgment shall be sent to the Court of the learned Special Judge, POCSO, East Sikkim at Gangtok and Sikkim State Legal Services

Authority for compliance. A certified copy, free of cost, shall be furnished forthwith to the Appellant.