State of Sikkim vs Pem Dorjee Sherpa

Sonam Phintso Wangdi, J.—This is an appeal filed by the State under Section 378(1)(b) of the Code of Criminal Procedure, 1973 (in short "Cr.P.C."), against the order of acquittal of the Respondent-Accused from the offence charged against him under Section 376 of the Indian Penal Code 1860 (in short "IPC"), passed by the Learned Judge, Fast Track Court, by Judgment dated 30.05.2014 in Sessions Trial (FT) Case No. 02 of 2014.

Briefly stated, the case of the prosecution was that on a complaint received from one Mr. Kumar Gurung, P.W. 1, of Lower Tinkitam, Block, South Sikkim, on 17-09-2013, case under Section 376 IPC was registered by the Ravangla Police Station against the Respondent-Accused for having committed rape of Maina Gurung, the wife of the complainant.

After investigation, charge-sheet was submitted against the Respondent-Accused by the Police for trial under Sections 376/511 IPC. Eventually the Learned Judge, Fast Track Court, acquitted the Appellant of the offence having found that the prosecution had failed to prove its case beyond reasonable doubt.

The principle ground raised on behalf of the State in this Appeal are-

"(a) the Learned Trial Court failed to take into consideration the evidence of P.W. 5, i.e., the victim, who had stated that the Respondent-Accused, a co-villager, was present in the house of the victim on the date of the incident, and

(b) the statement of the Respondent-Accused under Section 313 Cr.P.C., more specifically to the answers to questions No. 20 and 21, whereby he had admitted his being present in the house of the victim on the date of the incident when she was alone."

When the matter was taken up for arguments Mr. J.B. Pradhan, Learned Additional Advocate General-cum-Public Prosecutor, at the very outset, fairly conceded that the medical report of the victim did not corroborate her oral evidence as P.W. 5.

On a careful examination of the evidence on record, I find that although in her evidence the victim P.W. 5 has stated that the Respondent-Accused had used forced on her by covering her mouth with his hand and pushing her to the floor grabbing her neck and, thereafter allegedly committing rape on her, the evidence of Dr. Uttam Kr. Kharka, Gynaecologist, P.W. 2, who examined her at Namchi Hospital on the date of the incident, Dr. O.T. Lepcha, Medicolegal Specialist, P.W. 3, and their medical reports Exhibit 4 and 5 respectively, indicate no external injury on any part of her body and, even internally the vulva, vagina, anus and perineum areas also did not show injuries.

As per the Forensic Report, Exhibit 6 also, no human body fluids could be detected in the vaginal swab of the victim, penile swab collected from the Respondent-Accused and the half pant worn by the Respondent-Accused.

The medical and the forensic evidence therefore, do not at all support the oral evidence of the prosecutrix. The incongruity in the evidence is too glaring to consider it safe for this Court to hold the Respondent-Accused guilty of the charge.

Under these circumstances, it cannot be said that the finding of the Learned Fast Track Court suffers from the infirmities pointed out on behalf of the Appellant-State.

In Yerumalla Latchaiah v. State of A.P. : (2006) 9 SCC 713 under circumstances pari materia to the case at hand, the Apex Court, even in the case of a minor prosecutrix, held that the accused was entitled to acquittal.

In the result, the Appeal is dismissed.

No order as to costs.