Ram Bijay Singh vs State Of Sikkim

Present appeal is filed under Section 374(2) of the Code of Criminal Procedure, 1973 (for short CrPC) against the judgment and order dated 29.06.2018 passed by the learned Fast Track Judge, South and West Sikkim at Gyalshing in Sessions Trial (F.T.) Case No.05 of 2017 (State of Sikkim versus Ram Bijay Singh) whereby the learned Judge convicted the accused Ram Bijay Singh (hereinafter the appellant) to undergo rigorous imprisonment of one year and to pay a fine of Rs. 6,000/- and a further imprisonment of one month in default of payment of fine, under Section 354 of Indian Penal Code, 1860 (hereinafter IPC) and also to undergo imprisonment of one year and to pay a fine of Rs.4,000/- and in default of payment of fine to further undergo imprisonment of 15 days, under Section 354-A of the IPC. The Court directed that both the sentences will run concurrently and the period of detention already undergone by the appellant during the period of investigation and trial shall be set off against the sentence of imprisonment.

The case of the prosecution is that on 25.08.2017 a First Information Report (FIR) was lodged by one Phama Rook Limboo before Khechuperi Police Outpost under Gyalshing Police Station stating that on the previous day i.e. 24.08.2017 at around 08.00 pm the appellant attempted to rape his elder brother's daughter. The FIR was registered under Section 354 (A), 376, 511 of IPC. The victim girl was sent for medical examination.

The statement of victim was recorded under Section 164 CrPC by Judicial Magistrate, Soreng Sub Division, West Sikkim. The Investigating Officer after investigating the matter filed the charge sheet under Section 354, 376, 511 of IPC. The Judicial Magistrate committed the case to the Court of learned Judge, Fast Track (S&W) West Sikkim at Gyalshing. The learned Judge framed the charge with one head under Section 376/511 IPC where he pleaded not guilty and claimed to be tried.

The prosecution examined as many as 11 witnesses.

PW 1 is the victim. PW2 is sister of victim. PW 3 is co-villager. PW 4 is the uncle of victim who lodged the FIR. PW 5 is the doctor who examined the victim girl. PW 6 is co-villager. PW 7 is the class teacher of the victim. PW 8 is teacher in the school where the victim was studying. PW 9 is doctor who examined the appellant. PW 10 is a co-villager. PW 11 is Investigating Officer of the case.

PW 1, the victim in her statement stated that she knows the appellant. On 24.08.2017, she was in the house of her kaka (uncle) and was doing her homework, when the appellant suddenly entered her room, apologized, caught and told her to kiss him and tried to kiss her. When she told him that she will tell her uncle, the appellant left and she locked the room. Shortly thereafter, someone knocked the door and when she asked if it was sunu, there was no reply. After a while, she slowly opened the door and saw the appellant was going away.

The next day she told Kamala Maa'm who then questioned the appellant. The matter was reported to police. Later, she went to the court where she gave her statement to the Judge and the appellant was arrested and sent to the Jail. In her cross-examination this witness stated that it is true that there are about 8-9 houses surrounding her house. She admitted that she has not stated anywhere that the appellant had forcefully tried to kiss her. She also admitted that at the relevant time she was staying at her uncle's house and at that time her uncle, his wife and their daughter were also present in the house. The house is a kutcha house and only has three rooms. She also admitted that when someone talks, shouts or screams in the room where she was at the relevant time, it can be easily overheard in the adjacent room and the other near houses. She also admitted that she did not raise any hue and cry when the alleged incident had occurred. She also admitted that she had allegedly informed about the incident only on the next day. She also admitted that the appellant did not do anything to her forcefully. She also stated that when the alleged incident had occurred, one B.B Thapa and Lama Sir's wife were talking to each other on the road in front of her room. The door of her room faces the road and the people standing in the road can see anyone who is coming or going from her room. She also stated that toilet of her house is just below her room. She also submitted the fact when she first reported the matter to her teacher and to her uncle, she had only stated that the appellant had allegedly entered her room and had said "I Love You" and had asked for a kiss. She also admitted the fact that she had not made any allegation having any kind of physical contact with her.

PW 2 is sister of the victim. In her deposition she stated that on 24.08.2017 (the date of incident) she and her sister were doing homework together at around 08.00 pm. She went to toilet but when she returned to the room, she found it locked from inside. When she knocked, her sister did not open the door. After hearing her voice, her sister opened the door and when she entered, her sister was very scared and told her that appellant had entered the room, apologized, caught her and told her "I Love You" and asked her to kiss him. She was very scared and had locked the door. She also stated that on the same night they informed her father.

PW 3 is co-villager. He stated that on the fateful day he was called by Lama Sir through mobile. He went to the house of the victim. He learnt that the appellant had caught the victim and tried to make her kiss him.

PW 4 is uncle of the victim in which house the victim used to stay. In his statement he stated that on 24.08.2017 at around 08.00 pm his daughter shouted from her room which was next to his room that the appellant had tried to kiss the victim and told her "I Love You". However, he did not pay any heed as he was tired and went to bed. The next day when he was washing his hair, the appellant came and asked for apology. He thought that he was seeking apology for having scolded her niece, he brushed it aside and said it was ok as he was not aware of exactly what happened. However, shortly afterwards the panchayat and other people arrived and told him that the appellant has mis-behaved with the victim and it ought not to be taken lightly. Thereafter, he along with the panchayat went to the police station and lodged the FIR. He also stated that it is true that victim (PW 1) and his daughter (PW 2) did not tell him that the appellant had tried to kiss the victim and told her "I Love You" and accordingly, the same is not in his statement given to police. He also admitted the fact that panchayat and villagers had scolded him for treating the matter lightly and letting off the appellant. He also admitted the fact that after panchayat and other people arrived, then he came to know what the appellant had allegedly done.

PW 5 is a Gynecologist. In her statement she stated that she had examined the victim. She did not find any sign of mark or resistance or struggle on the body of the victim. There were no redness, swelling, tenderness, scratches, abrasion present on the body of the victim. No local injury seen, no bleeding seen. Hymen admits-tip of small finger. Her statement is not relevant as there is no allegation of such sexual assault.

PW 6, Bal Bahadur Chettri is co-villager and is not a relevant witness.

PW 7, Kamala Dahal is the class teacher, to whom, as per the statement of the victim, she first told about the incident. In her statement this witness stated that she is the class teacher of the victim. She did not know the exact date and month but sometime in the middle session of their school in the year 2017, one day the minor victim told her after attendance that the appellant entered into the house of the minor victim at around 08.00 pm and forced her to kiss him. She also told that the appellant had said "I Love You" twice to victim. Thereafter, she went to the Vice Principal and informed him what victim told her in the class. The Vice Principal called the appellant to his office and enquired about the incident. While the Vice Principal was making enquiry she left the office of the Vice Principal.

PW 8 Samber Man Limboo is the teacher working in the same school where the victim was studying. In his statement, he stated that he was not sure about the date but it was sometime during the last week of August 2017 while he was in his office, the Class teacher of class 8 Smt. Kamala Dahal came and informed him that the minor victim told her that she was sexually assaulted by the appellant. He immediately informed the same to the Principal Madam. The Principal Madam told him to call the appellant and enquire about the incident. Accordingly, he called the appellant to his office and enquired from him. At first the appellant refused to have done any such thing to the victim. Thereafter, he called the minor victim to his office and asked her about the incident. The minor victim informed him that the appellant came to her house at night and forced her to say "I Love You" and appellant also put his hand on her waist forcefully. Thereafter, the appellant confessed that he went to the minor victim house and did the same, as alleged. In his statement he also admitted the fact that the appellant did not confessed before them about the alleged incident and he confessed only after forced by victim. This witness admitted that when the appellant was allegedly asked he had refused the allegations made by the victim and had pleaded his innocence.

Ms. Malati Sharma, learned Counsel appearing for the appellant submits that if statement of all the relevant witnesses are read together, in that event, the appellant is bound to get the benefit of doubt. She submitted that PW 1 in her statement stated that the appellant suddenly entered her room and apologized, caught and asked her to kiss him and tried to kiss her and when she told him that she will tell her uncle about this, the appellant left the room. But at the same time she also admitted that the appellant did not do anything to her forcefully. She also admitted that she had not made any allegation against the appellant of any kind of physical contact with her. Learned Counsel submitted that the statements of PW 1 are self contradictory. She referred the statement of PW 1 where she has stated that when the alleged incident occurred, one B.B Thapa and Lama Sir's wife were talking to each other on the road in front of her room and the said room faces to the road and the people standing on the road can see anyone who is coming or going from her room. She submitted that in such situation, it is most unlikely that appellant had sexually harassed the victim. Learned Counsel for the appellant also referred the statement of PW 2 i.e. sister of the victim in which she has stated that at the time of incident she had gone to toilet. By referring the statement of PW 2, learned Counsel has argued that it is very unlikely that the appellant will do such act within a period of 2-3 minutes. Learned Counsel also referred the statement of the uncle of the victim in whose house the victim was residing in which he stated that on 24.08.2017 at around 08.00 pm his daughter shouted from her room which was next to his room that the appellant had tried to kiss the victim and told her "I Love You", however, he did not pay any heed to that as he was tired and went to bed. But this witness in his cross-examination admitted that he came to know about the incident next day. His testimony does not support the prosecution case. Learned Counsel for the appellant submits that as the appellant is outsider, therefore, the victim's uncle under influence of the local villagers filed the false report of the incident against the appellant. Learned Counsel for the appellant lastly submitted that the appellant has been convicted and sentenced for one year and in fact he has completed the sentence of one year in jail and now has been released from the jail. She prayed that considering the fact that there are contradictions in the statements of the witnesses and also considering the fact that appellant is young boy and already undergone full sentence, the appellant be given benefit of doubt.

Mr. S.K Chettri, learned Assistant Public Prosecutor submitted that testimony of the victim alone is sufficient to convict the appellant. He submitted that not only the statements of the victim, her sister as well as her uncle have also supported the case of the prosecution. The testimony of PW 8 is also sufficient to convict the appellant before whom appellant confessed his guilt.

I have considered the submissions of the learned Counsel for the parties and I have carefully perused the records of the case. No doubt, in the matter of sexual assault, the testimony of the victim should be given much weightage and the conviction can be done only on the basis of the statement of the victim. This Court has to examine the testimony of the witnesses very carefully. In the present case, prosecutrix in her examination in-chief had stated that on 24.08.2017 she was in the house of her uncle and was doing her homework, when the appellant suddenly entered her room, apologized, caught her and asked her to kiss him and also tried to kiss her. When she told him that she will tell her uncle the appellant left. She closed the door and someone knocked the door and she opened the door and saw appellant going away. In her examination in-chief she also stated that she told this fact to Kamala Madam on the next day and the matter was reported to the police. In her cross-examination, the prosecutrix has stated that at the relevant time she was staying at her uncle's house and her uncle, his wife and their daughter were also present in the house. The house is a kutcha house. She also stated that when someone talks, shouts or screams in the room where she was at the relevant time, it can be easily overheard to the adjacent room and the other near houses. She also stated that she did not raise any hue and cry when the alleged incident had taken place. In her statement, she also stated that she had informed about the incident only on the next day. She also admitted that the appellant did not do anything to her forcefully. This victim in her cross-examination admitted the fact that when she first reported the matter to teacher and to her uncle, she had only stated that the appellant had allegedly entered her room and said her "I Love You" and asked for kiss. She also admitted the fact that she had not made any allegation having any kind of physical contact with her. This Court finds that the prosecutrix herself has admitted the fact in her cross-examination that at the first incident she informed her teacher as well as her uncle that appellant had simply stated that he loves her and wants kiss from her. She also admitted the fact that she didn't tell anyone that appellant made any physical contact with her. Her statement regarding physical contact is contradictory. In her examination in-chief she has said about physical contact whereas in his cross-examination she has denied this fact. This Court also finds that the statement of PW 1 is also contradictory to the statement of PW 2, sister of the victim. PW 2 has stated that when victim open the door, at that time she was very scared. She told PW 2 that the appellant had entered the room, apologized, caught her waist and told her "I Love You" and asked her to kiss him. This statement is contrary to the statement given by the prosecutrix in which she has stated that for the first time about the incident she informed her class teacher Kamala Madam about the incident and that too on the next day. Similarly, the statement of the PW 4 is also contrary to the statement of the victim. PW 4 in his examination in-chief stated that on the date of incident at around 08.00 pm his daughter shouted from her room which was next to his room that the appellant had tried to kiss the victim and told her "I Love You". It is not believable that the uncle of the victim in whose house the victim was staying will not react once he heard all these from the mouth of his daughter. This statement is contrary to his own statement where he stated that only after the panchayat and co-villagers told him about the incident, next day, he came to know about the same. This witness had also admitted that the panchyat and co-villagers had scolded him for treating the matter lightly and letting off the appellant and only thereafter, he lodged the FIR. This statement is supporting the argument of appellant's Counsel that complaint was made on the pressure of the villagers.

In view of the above discussion, this Court is of the view that the appellant is entitled for benefit of doubt and accordingly, he is given benefit of doubt. The appeal deserves to be allowed.

Accordingly, appeal is allowed, Judgment and Order on Sentence dated 29.06.2018 awarded to the appellant by learned Fast Track Judge, South & West Sikkim at Gyalshing in Sessions Trial (F.T) Case No.05 of 2017 (State of Sikkim versus Ram Bijay Singh) is set aside.

Since the appellant has already been released from jail on completion of sentence, no further order is required to be passed.

Let certified copy of this Judgment be sent to learned Fast Track Judge, South & West Sikkim at Gyalshing.

Lower Court records be remitted back forthwith.