Sikkim High Court
Kendrap Lepcha vs State Of Sikkim on 1 June, 2020
Equivalent citations: AIRONLINE 2020 SK 40, AIRONLINE 2020 SK 13
Author: Bhaskar Raj Pradhan
Bench: Meenakshi M. Rai, B. R. Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
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DIVISION BENCH: THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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Crl. A. No. 23 of 2018
Kendrap Lepcha,
Son of Karma Dorjee Lepcha,
Resident of Shagyong Busty,
Lower Dzongu,
North Sikkim.
Presently lodged at Central Prison,
Rongyek, East Sikkim.
..... Appellant
versus
State of Sikkim
..... Respondent
Appeal under Section 374(2) of the Code of Criminal Procedure, 1973.
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Appearance:
Mr. Sudesh Joshi, Advocate as Legal Aid Counsel for the
Appellant.
Mr. Hissey Gyaltsen and Ms Mukun Dolma Tamang, Assistant
Public Prosecutors for the Respondent.
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Date of hearing : 17.03.2020
Date of judgment : 01.06.2020
JUDGMENT
Bhaskar Raj Pradhan, J.
1. The appellant, a teacher in a Primary School, was tried, convicted and sentenced to imprisonment for the offences of rape, aggravated penetrative sexual assault, aggravated sexual assault and for assault on the minor victim (PW-5), a schoolgirl, Crl. A. No. 23 of 2018 2 Kendrap Lepcha vs. State of Sikkim with intent to outrage her modesty. Both the judgment of conviction and the order on sentence dated 31.05.2018, have been challenged in the present appeal.
2. The First Information Report (for short „the FIR‟) (Exhibit-1) was lodged on 11.12.2016, by a member of the village Panchayat (PW-7), PW-6 [mother of the minor victim (PW-5)], PW-1, PW-9, PW-10 and PW-14 (collectively referred to as the first informants) mothers to five schoolgirls aged between 7 to 11 years. The FIR (Exhibit-1) alleged that PW-14, mother of "O", was bathing her when she noticed redness on her breasts a few days ago. She therefore asked "O" about it but she refused to open up. After a while, "O" narrated the incident and informed PW-14 that she and the other schoolgirls were being sexually assaulted by their teacher, the present appellant. The FIR (Exhibit -1) further alleged that the schoolgirls informed the first informants that the appellant used to touch their breasts in the classroom and outdoors. According to the first informants, the schoolgirls further alleged that the appellant used to put his finger in their private parts and lick it in front of them, make sexual gestures to them and threaten them that if they told their parents or anyone about it, he would cause serious trouble to them.
3. On the basis of the information, FIR No. 25(12)16 dated 11.12.2016 was registered and the case endorsed to Police Inspector Karma Euden Kaleon (PW-16) for investigation. Crl. A. No. 23 of 2018 3
Kendrap Lepcha vs. State of Sikkim
4. During investigation, the minor victim (PW-5) was examined by Dr. Rozeela Bhutia (PW-13) on 11.12.2016. On her examination, she found that her breast nipples were swollen. She also noticed that her hymen was not intact and it admitted one finger coupled with tenderness and foul smell. Dr. Rozeela Bhutia (PW-13) opined in her medical report (Exhibit-13) that there was clinical evidence of sexual assault.
5. The learned Judicial Magistrate (PW-12) recorded the statement (Exhibit-6) under section 164 of the Code of Criminal Procedure, 1973 (for short „the Cr.P.C.‟) of the minor victim (PW-
5) on 26.12.2016.
6. A consolidated charge-sheet was filed on 28.04.2017 against the appellant for the alleged offence allegedly committed against five schoolgirls of the same school in which he was a teacher. At the stage of framing of charges, the trial of the alleged offences against each of the five schoolgirls was split and each tried separately.
7. On 10.10.2017, the learned Special Judge (POCSO), North Sikkim at Mangan (hereinafter, „the learned Special Judge‟), in Sessions Trial (POCSO) Case No. 14 of 2017 - State of Sikkim vs. Kendrap Lepcha, framed eleven charges against the appellant for the commission of the alleged offences against the minor victim (PW-5). The appellant pleaded not guilty and Crl. A. No. 23 of 2018 4 Kendrap Lepcha vs. State of Sikkim claimed trial. Seventeen witnesses including the Investigating Officer (PW-16) were examined.
8. On 25.05.2018, the appellant was examined under section 313 of the Cr.P.C. The appellant claimed that he had been falsely implicated because he was a strict teacher and the children‟s parents used to dislike him. When the appellant declined to bring any witness in his defence, the matter was heard by the learned Special Judge. On 31.05.2018, he passed the judgment of conviction and the order on sentence.
9. Mr. Sudesh Joshi, learned counsel for the appellant, at the outset submitted that he does not seek to challenge the minority of the minor victim (PW-5). He, however, vehemently insisted that the evidence of the minor victim (PW-5) is grossly inconsistent and therefore, unreliable. It was submitted that considering the age of the minor victim (PW-5) and the conflicting statements made by the minor victim (PW-5), it would be dangerous to uphold the conviction of the appellant. Mr. Sudesh Joshi drew our attention to the inconsistency in the FIR (Exhibit-
1), the statement (Exhibit-6) and the deposition of the minor victim (PW-5). He drew our attention to the medical evidence as well as the various paragraphs of the impugned judgment which dealt with the statement (Exhibit-6). Mr. Sudesh Joshi relied upon a judgment of the Supreme Court in State of Rajasthan vs. Crl. A. No. 23 of 2018 5 Kendrap Lepcha vs. State of Sikkim Babu Meena1 emphasising that a wholly unreliable evidence of a prosecutrix cannot lead to conviction.
10. Mr. Hissay Gyaltsen, learned Assistant Public Prosecutor, however, submitted that the deposition of the minor victim (PW-5) is cogent. The heinous acts have been clearly deposed to and explained by the minor victim (PW-5) even though a child. He drew our attention to the fact that between the recording of the statement (Exhibit-6) and the recording of the deposition, there was a gap of fourteen months which would explain the minor discrepancies between them. He also emphasised that there was no apparent reason or motive to frame the appellant. He, therefore, submitted that the judgment of conviction and order on sentence both dated 31.05.2018 should not be interfered with.
11. PW-6 identified the appellant in court. PW-6 deposed that she was told by the mother of one of the schoolgirls that while bathing her daughter she was told by her that the appellant, their teacher, was sexually assaulting her and other schoolgirls including the minor victim (PW-5). PW-6 enquired about it from the minor victim (PW-5) who told her that the appellant used to put his hands on her chest/breasts and her pisab garne (vagina). According to PW-6, the parents then went to the Panchayat for discussing the matter and after informing 1 (2013) 4 SCC 206 Crl. A. No. 23 of 2018 6 Kendrap Lepcha vs. State of Sikkim the matter to the Panchayat member they lodged the FIR (Exhibit-1).
12. PW-7 identified the appellant in Court. According to her, on 08.12.2016, she was told by the mother of the minor victim (PW-5) and the parents of other schoolgirls that the appellant, their teacher, had been sexually assaulting them. After discussions, they lodged the FIR (Exhibit-1).
13. The other first informants (PW-1, PW-9, PW-10 and PW-14) deposed that they had heard about the schoolgirls being sexually abused by the appellant, the subsequent meeting and then the lodgement of the FIR (Exhibit-1). All the first informants identified the appellant in court. What the first informants heard from the schoolgirls as deposed by them may stand. However, the truth and veracity of what the schoolgirls informed the first informants (PW-1, PW-9, PW-10 and PW-14) could have been verified only if the schoolgirls had been examined. However, none of the schoolgirls were examined except the minor victim (PW-5). The truth, therefore, hinges on the evidence of the minor victim (PW-5).
14. The Deputy Secretary (PW-3) and the Joint Secretary (PW-4) both in the Human Resource Development Department, Government of Sikkim, proved the fact that the appellant had been appointed as an ad hoc teacher in the year 2015 and thereafter, reappointed as such in the year 2016. They also Crl. A. No. 23 of 2018 7 Kendrap Lepcha vs. State of Sikkim proved and exhibited the relevant certified copies of the office orders (Exhibit-3 and Exhibit-5). The fact that the appellant was a teacher in the same school in which the minor victim (PW-5) was a student has been sufficiently proved by the first informants, PW-2 (a teacher in the same school), PW-3 (the Deputy Secretary) and PW-4 (the Joint Secretary), PW-6 [the mother of the minor victim (PW-5)] and the minor victim (PW-5) herself.
15. Although, not challenged, the minority of the minor victim (PW-5) has been proved by the deposition of her parents i.e. PW-6 [the mother of the minor victim (PW-5)] and PW-17 [the father of the minor victim (PW-5)] as well as the deposition of PW- 8 (the school in-charge). The minor victim‟s (PW-5) birth certificate produced and exhibited by her father PW-17, the custodian of the birth certificate (Exhibit-20), proved that the minor victim (PW-5) was born on 13.12.2006, thus, establishing that the minor victim (PW-5) was below twelve years at the time of the occurrence.
16. The minor victim (PW-5) identified the appellant as Kendrap Sir who used to teach them Mathematics and Hindi when she was in the 4th and 5th standards. She deposed that on two occasions, the appellant put his finger in her pisab garne (vagina). She deposed that on five occasions he put his hands on Crl. A. No. 23 of 2018 8 Kendrap Lepcha vs. State of Sikkim her chest/breasts in the classroom of the school. She also deposed about the appellant sexually abusing other schoolgirls. She said she had disclosed it to her mother and given her statement (Exhibit-6) to the learned Magistrate (PW-12). She admitted that the appellant was a strict teacher. The defence has cross-examined the minor victim (PW-5) on what she stated about the sexual abuse on other schoolgirls by the appellant. However, the defence could not get anything but a denial to their suggestions that what she stated in her deposition against the appellant was not true. No questions were asked to the minor victim (PW-5) regarding the discrepancies in the statement (Exhibit-6) and her deposition. A close scrutiny of her deposition as well as her statement (Exhibit-6) does establish that the appellant had on more than one occasion put his fingers in her vagina and also molested her several times by touching her breast. These facts have been corroborated by her statement (Exhibit-6) and the deposition of PW-6 [the mother of the minor victim (PW-5)] to whom she had also disclosed that the appellant used to put his hands on chest/breast and her pisab garne (vagina).
17. Mr. Sudesh Joshi had vehemently argued that the several inconsistencies in the deposition of the minor victim (PW-
5) and her statement (Exhibit-6) as to what the appellant did to the other schoolgirls were sufficient to create a serious doubt to the prosecution case. The FIR (Exhibit-1) was lodged on Crl. A. No. 23 of 2018 9 Kendrap Lepcha vs. State of Sikkim 11.12.2016, when one of the first informants came to know about her daughter, a schoolgirl in the school, had been sexually abused by the appellant. The several incidents referred to by the minor victim (PW-5) were of the period 2015-2016. The minor victim‟s (PW-5) statement (Exhibit-6) was recorded on 26.12.2016 and her deposition on 21.02.2018, after nearly fourteen months thereafter. It may be possible to get confused at such a tender age about which act was committed on which schoolgirl but near impossible for a schoolgirl to forget how she was sexually abused that too by her own teacher. The fact that the appellant was the minor victim‟s (PW-5) teacher; to that the minor victim (PW-5) was below 16 years of age at the time of the incident and that the appellant had in more than one occasion inserted his finger in her vagina has been proved beyond reasonable doubt. Section 375(b) IPC provides that insertion of a finger (a part of the body) into the vagina amounts to rape. In the circumstances, we are inclined to accept the submission of Mr. Hissay Gyaltsen that the time gap between the statement (Exhibit-6) and the deposition could have created the confusion regarding the details as to what transpired with which of the schoolgirls. The minor victim (PW-5) is sufficiently clear about the fact that she was sexually abused by the appellant several times by putting his hands on her breasts and by also inserting his finger in her vagina. The medical report of the minor victim (Exhibit-13) also reflects that her hymen was not intact and her breast nipples Crl. A. No. 23 of 2018 10 Kendrap Lepcha vs. State of Sikkim swollen. In the circumstances, we are inclined to uphold the appellant‟s conviction under section 376(2)(f)(i) and (n) of the Indian Penal Code, 1860 (for short „the IPC‟).
18. The appellant has also been sentenced under section 9(f), 9(l) and 9(m) of the POCSO Act. The prosecution has proved that the appellant had put his hands on her chest/breasts on more than one occasion. The fact that the appellant committed these acts of sexual assaults in school where he was a teacher and the minor victim (PW-5) a student, has also been proved. The fact that at the time of the offence the minor victim (PW-5) was below 12 years of age has also been proved. Accordingly, sentences under section 9(f), 9(l) and 9(m) of the POCSO Act are upheld.
19. In Kiran Karki @ Chettri Uncle vs. State of Sikkim2, a Division Bench of this Court has held that the punishment prescribed under section 376(2) of the IPC is greater in degree than the one provided under the Protection of Children from Sexual Offences Act, 2012 (for short „the POCSO Act‟). Therefore, in terms of section 42 of the POCSO Act, the appellant is not liable to be punished for the offences under section 5(f), 5(l) and 5(m) of the POCSO Act. Accordingly, the appellant‟s sentences under section 5 of the POCSO Act are set aside.
22019 SCC Online Sikk 224 Crl. A. No. 23 of 2018 11 Kendrap Lepcha vs. State of Sikkim
20. Section 376(2) of the IPC prescribes rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person‟s natural life, and shall also be liable to fine. The learned Special Judge has sentenced the appellant to 20 years and a fine of ₹ 50,000/- for each of the offences under section 376(2)(f), 376(2)(n) and 376(2)(i) of the IPC. Keeping in mind all the relevant considerations including the age of the appellant, we are of the considered view that a sentence of 10 years of rigorous imprisonment and a fine of ₹ 50,000/- each for each of the above offences would be sufficient for the ends of justice. The appellant has been sentenced to 7 years of simple imprisonment and a fine of ₹ 40,000/- each for the offences under section 9(f), 9(l) and 9(m) of the POCSO Act. We are not inclined to interfere with the sentences imposed. We do hope that the appellant reflects on his heinous acts during the period of incarceration and aspire to be a better citizen.
21. As directed by the learned Special Judge, the period of imprisonment for the sentences confirmed shall run concurrently. The period of imprisonment already undergone by the appellant in connection with this case shall be set off against the sentences imposed. The Award of compensation for the offence committed as directed by the learned Special Judge is maintained.
Crl. A. No. 23 of 2018 12
Kendrap Lepcha vs. State of Sikkim
22. The appeal is partly allowed.
23. The impugned order on sentence dated 31.05.2018 stands modified to the above extent. Copy of the judgment be transmitted to the Court of the learned Special Judge (POCSO) North Sikkim at Mangan.
24. The records of the learned Trial Court be returned forthwith.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
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