Bhagirath Dhangal vs State Of Sikkim on 9 December, 2019

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Sikkim High Court

Bhagirath Dhangal vs State Of Sikkim on 9 December, 2019

Equivalent citations: AIRONLINE 2019 SK 79

1. Aggrieved with the Judgment of conviction and Order on Sentence, dated 29-11-2018 and 30-11-2018 respectively, in Sessions Trial (POCSO) Case No.30 of 2017, the Appellant is before this Court. The Learned Trial Court, vide the impugned Judgment convicted the Appellant of the offence under Section 9(m), 9(l) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, POCSO Act) and Section 354A(1)(i) of the Indian Penal Code, 1860 (hereinafter, IPC). The Appellant was sentenced to suffer imprisonment of five years and to pay a fine of Rs.5,000/- (Rupees five thousand) only, each, under Sections 9(m) and 9(l) of the POCSO Act and for the offence Crl.A. No.39 of 2018 2 Bhagirath Dhangal vs. State of Sikkim under Section 354A(1)(i) of the IPC he was sentenced to undergo rigorous imprisonment of three years and to pay a fine of Rs.2,000/- (Rupees two thousand) only. Default clauses of imprisonment were also prescribed and the sentences of imprisonment ordered to run concurrently.

2. The facts, as they emerge, are that on 09-07-2017, at around 2100 hours, Exhibit 2, the FIR was lodged by P.W.2, the father of the victim, alleging that on 08-07-2017, at around 4 p.m., when the victim, his daughter, had gone to the shop of the Appellant to buy Cigarettes, the Appellant put his hand inside his daughter‟s clothes and fondled her chest. The child returned home crying and narrated the incident to her mother P.W.3 and her aunts P.W.4 and P.W.5, who then informed P.W.2. P.W.2 in turn enquired about the incident from the victim and came to learn that apart from the instant incident she had also been previously molested by the Appellant, hence the request seeking appropriate legal action.

3. Investigation into the matter revealed that the Appellant aged about 74 years old was the neighbour of the victim aged about nine years, a student of Class III. Pursuant to the complaint the victim was subjected to medical evidence which corroborated her statement. Investigation thus established the allegations made out against the Appellant. Charge-Sheet was submitted against the Appellant under Sections 341/354(A) of the IPC read with Section 8 of the POCSO Act. The Learned Trial Court framed Charge under Sections 9(m), 9(l) of the Crl.A. No.39 of 2018 3 Bhagirath Dhangal vs. State of Sikkim POCSO Act and Section 354A(1)(i) of the IPC. On the plea of "not guilty" by the Appellant, the Prosecution sought to establish its case by examining thirteen witnesses. On closure of Prosecution evidence the Appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C."). In a bid to disprove the Prosecution case, the Appellant examined himself, his daughter and a co-villager as D.W.1, 2 and 3 respectively. On consideration of the entire evidence on record, the impugned Judgment and Order on Sentence were pronounced.

4. Before this Court Learned Counsel for the Appellant urged there are anomalies with regard to the time that the victim visited the shop of the Appellant. According to the victim, she had gone there at 4 p.m., however, as per P.W.6, her grandfather, who had assigned her the errand, she was sent at 12 noon. That, no seizure of any Cigarette or „bidi‟ was made by the Police from P.W.6 or the victim to establish the victim‟s visit to the shop. That, infact the alleged incident arose out of animosity between the Appellant and the parents of the victim who owed money to the Appellant, who runs a grocery shop and they were not inclined to pay the dues. This fact is supported by the evidence of P.W.2, the father, who has admitted that they had outstanding payments to be made to the Appellant and P.W.3 the mother of the victim who substantiated this evidence. The evidence of the Appellant and his daughter D.W.2 also bolsters this circumstance. That, although the evidence of P.W.9 records that there was bilateral tenderness on the mammary Crl.A. No.39 of 2018 4 Bhagirath Dhangal vs. State of Sikkim region of the victim, P.W.11 the Gynaecologist has not opined that there was any kind of bruise or pain over the same region. Apart from which P.W.11 had admitted that tenderness may occur bilaterally on the mammary glands by reason of fall on a hard surface. That, although the incident occurred on 08-07- 2017, the complaint came to be lodged only on 09-07-2017 and the delay was unexplained. That, the Birth Certificate of the victim, Exhibit 3, shows the date of registration as 31-05-2010, whereas her date of birth is alleged to be 08-07-2008. Hence, the authenticity of the Birth Certificate is suspect and thereby the age of the victim is doubtful. Accordingly, in view of the grounds put forth supra the impugned Judgment and Order on Sentence be set aside.

5. Per contra, Learned Assistant Public Prosecutor contended that no doubt arises on the date of birth of the victim as clearly established by the Birth Certificate, Exhibit 3, duly substantiated by the evidence of P.W.9 Dr. Manoj Mishra, who has stated that on going through the records maintained at the Rangpo Public Health Centre, it was found that Exhibit 3 was issued to the victim. That, Exhibit 3 reflected her date of birth as "08-07-2008" and was issued on 31-05-2010. The document was genuine as per the records maintained at the Rangpo Public Health Centre. That, Exhibit 19 was the birth authentication report issued by P.W.9 pertaining to the age of the victim and duly proved by P.W.9. The evidence is categorical and proves that the victim was a minor. So far as the fact of the incident is concerned the victim has cogently deposed without faltering Crl.A. No.39 of 2018 5 Bhagirath Dhangal vs. State of Sikkim before the Learned Trial Court and her statements stood undecimated in cross-examination. P.W.6 had said that he had asked the victim girl to get a bundle of „bidi‟ from the shop of the Appellant "in the afternoon", hence he had mentioned no specific time contrary to the argument raised by the Appellant. The Medical Report supports the allegation made by the victim pertaining to the sexual assault perpetrated by the Appellant. Relying on the ratio of B. C. Deva alias Dyava vs. State of 1 Karnataka it was held that it is not necessary that marks and injuries have to be found on the person of the victim. All that is required is that the evidence of the victim has to be trustworthy. That, conviction can be based solely on the testimony of the victim as held in State of Himachal Pradesh vs. Suresh Kumar alias 2 DC . Hence, the Judgment and Order on Sentence of the Learned Trial Court warrants no interference.

6. Having heard the Learned Counsel at length and having also perused the documents, entire evidence and records of the case, the question that falls for consideration before this Court is whether the Learned Trial Court was in error in convicting the Appellant.

7. We may appositely examine the evidence of the witnesses to reach a finding on this aspect. The victim unequivocally stated her age as being 9 years at the time of the offence which occurred on 08-07-2017 and that she was in Class III at the relevant time and attending a private School in their 1 (2007) 12 SCC 122 2 (2009) 16 SCC 697 Crl.A. No.39 of 2018 6 Bhagirath Dhangal vs. State of Sikkim village. It was her specific case that on the relevant day her grandfather had sent her to purchase „bidis‟ from the shop of the Appellant and on reaching there found the Appellant alone. She purchased a packet of „bidis‟ and paid for the same. The Appellant asked her to wait in his shop for some time and while doing so he put his hands from the top portion of her frock and pinched her breasts. She fled, went home and narrated the incident to her mother. She has stated that he had also committed similar acts in the past but that was from outside her clothes. Thereafter, she went to the Rangpo Police Station with her family where she was questioned by the Police, following which, she was forwarded to the District Hospital, Singtam for medical examination. She identified Exhibit 1 as the statement made by her before a Judge while referring to her Section 164 Cr.P.C. statement. Although incisive questions were put in cross-examination to the victim the evidence-in-chief could not be decimated. P.W.2 the father of the victim stated that he had lodged Exhibit 2 at the Rangpo P.S. on 09-07-2017 on learning of the assault on his child. He also identified Exhibit 3 as the Birth Certificate seized by the Police from his wife. P.W.3 the victim‟s mother besides corroborating the evidence of P.W.1 stated that she opened the victim‟s clothes to check as her daughter was in pain. She found that the victim‟s right breast was sore and some discharge emanated from there. She corroborated the evidence of P.W.1 with regard to the questions put to the victim by the Police and medical examination conducted on the victim. P.W.4 and P.W.5 were the paternal Crl.A. No.39 of 2018 7 Bhagirath Dhangal vs. State of Sikkim aunts of the victim present at the house of the victim at the relevant time and they also examined the victim‟s breasts. P.W.6 was the grandfather who had sent the victim to buy the „bidis‟. Although a concerted effort was made by Learned Counsel for the Appellant to establish that there were contradictions in the time pertaining to the visit of the victim to the Appellant‟s shop, it is relevant to notice that P.W.6 stated that in the „afternoon‟ he had asked the victim to get him a bundle of „bidis‟. Nowhere has he stated that immediately on his request the victim complied with it. She could well have gone at 4 p.m. P.W.9 examined the victim at about 2200 hours at the Rangpo PHC and found that there was a mild bruise over the right mammary gland with mild pain. He forwarded the victim to STNM Hospital for gynaecological examination. P.W.11 Dr. M. P. Sharma was the Gynaecologist who examined the victim on 10- 07-2017 at STNM Hospital at around 11.55 a.m. and found that there was tenderness bilaterally on the mammary region. Accordingly, he recorded the nature of injury as simple. The evidence of the Doctor withstood the cross-examination. P.W.9 vouched for the authenticity of Exhibit 3. Having examined Exhibit 19 and Exhibit 3, which was seized in the presence of P.W.6 and P.W.7 and in consideration of the fact that P.W.9 was examined to substantiate Exhibit 19, it is evident that the date of birth of the victim was 08-07-2008. The incident having occurred on 08-07-2017, the victim was 9 years at the relevant time. Section 30 of the POCSO Act casts a reverse burden of proof on the Appellant. In order to rebut the evidence against Crl.A. No.39 of 2018 8 Bhagirath Dhangal vs. State of Sikkim him while examining himself as D.W.1 he stated that he had not committed the sexual assault and infact from the month of April, 2017, the parents of the victim had stopped taking grocery from his shop insinuating thereby that the victim had not visited his shop. D.W.2 deposed that her father had ticked off the victim on account of non-payment of outstanding dues by her parents, but were celebrating her birthday. Thus, implying that this was the reason for the victim and her parents to falsely implicate the Appellant. D.W.3 made an effort to establish that the Appellant did not sit alone in his shop but was accompanied by either his son or daughter. Despite the effort it could not be proved by the Appellant beyond a reasonable doubt, as per the provision of Section 30 of the POCSO Act, that he had not committed the offence. The late lodging of the FIR, i.e., 07-07-2017, after the incident occurred on 08-07-2017 cannot be a ground to suspect the Prosecution case. In Bharwada Bhoginbhai Hirjibhai vs. State 3 of Gujarat the Hon‟ble Supreme Court held as follows;

"10. By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because (1) A girl or a woman in the tradition-bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracized by the 3 (1983) 3 SCC 217 Crl.A. No.39 of 2018 9 Bhagirath Dhangal vs. State of Sikkim society or being looked down by the society including by her own family members, relatives, friends, and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition-bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross-

examination by counsel for the culprit, and the risk of being disbelieved, acts as a deterrent." In the light of this ratio, in all likelihood the same parameters came into consideration for the victim and her family. Besides on 08-07-2008 the birthday of the victim was being celebrated as evident from depositions.

8. On the question of trustworthiness of the victim‟s statement in State of Maharashtra vs. Chandraprakash Kewalchand 4 Jain the Supreme Court held as follows;

"16. A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 4 (1990) 1 SCC 550 Crl.A. No.39 of 2018 10 Bhagirath Dhangal vs. State of Sikkim 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage:

"It is only in the rarest of rare cases if the court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary."

With respect, the law is not correctly stated. If we may say so, it is just the reverse. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation."

There is no reason for the victim to have spun a yarn about such an offence and her evidence is cogent and consistent. Crl.A. No.39 of 2018 11

Bhagirath Dhangal vs. State of Sikkim

9. In the instant case, the registration of Exhibit 3 was on "31-05-2010" showing the victim‟s date of birth as "08-07- 2008" the FIR was lodged on "09-07-2017" several years after the preparation of Exhibit 3. The Supreme Court had an occasion to examine a similar issue in Mohd. Ikram Hussain vs. 5 The State of Uttar Pradesh and Others and held as under;

"(16) In the present case Kaniz Fatima was stated to be under the age of 18. There were two certified copies from school registers which showed that on June 20, 1960 she was under 17 years of age. There were also the affidavit of the father stating the date of her birth and the statement of Kaniz Fatima to the police with regard to her own age. These amounted to evidence under the Indian evidence Act and the entries in the school registers were made ante litem motam. ......................"

In Murugan alias Settu vs. State of Tamil Nadu6 the Hon‟ble Supreme Court held as follows;

"24. The Documents made ante litem motam can be relied upon safely, when such documents are admissible under Section 35 of the Indian Evidence Act, 1872. (Vide Umesh Chandra v. State of Rajasthan [(1982) 2 SCC 202] and State of Bihar v. Radha Krishna Singh [(1983) 3 SCC 118].)"

In Lakhi Ram Takbi vs. State of Sikkim7 this Court while addressing a similar question has held as follows;

"10. Now to address the first doubt raised by learned Counsel for the Appellant, that Exhibit 2, the Birth Certificate prepared by the Registrar of Births and Deaths, Health and Family Welfare Department, Government of Sikkim was prepared ante litem motam and was therefore suspicious. On perusing Exhibit 2 it is revealed that it is the original Birth Certificate issued in the name of the victim by the Registrar, Births and Deaths, Health and Family Welfare Department, Government of Sikkim where the victim‟s date of birth is entered as 21.12.1996. The date of registration has been recorded as 24.03.1998. It is undoubtedly prepared almost fifteen months after the birth of 5 AIR 1964 SC 1625 6 (2011) 6 SCC 111 7 SLR (2019) Sikkim 45 Crl.A. No.39 of 2018 12 Bhagirath Dhangal vs. State of Sikkim the victim. Would this fact by itself make the document unreliable? According to the Black‟s Law Dictionary, "ante litem motam" means "before the law suit started." The principle would imply the meaning "before an action has been raised" or "before a legal dispute arose," at a time when the declarant had no motive to lie. The principle on which this restriction is based is succinctly stated in Halsbury‟s Laws of England, 3rd Edition, Volume 15 at page 308 in these words;

"To obviate bias the declarations are required to have been made ante litem motam which means not merely before the commencement of legal proceedings but before even the existence of any actual controversy concerning the subject-matter of the declarations."

............................................................................................" In the circumstances of the case as emanates supra, it cannot be said that the Birth Certificate was prepared with an ulterior motive, the complaint having been lodged in the year 2017 against the Appellant while Exhibit 3 was prepared in 2010.

10. It is evident that the mother of the victim has also noticed the swelling on the right breast of the child and despite the effort of the Appellant to make the injury look like it was the result of a fall, this remained unproved as the Appellant failed to establish where the victim could have fallen. The evidence of P.W.2 the victim is cogent, reliable and trustworthy duly corroborated by the findings of P.W.9 who found mild bruise over the right mammary gland and P.W.11 who found bilateral tenderness in the same region.

11. Considering that no earlier FIR had been lodged to report the alleged earlier offence, or investigation conducted in the matter, the Charge under Section 9(l) of the POCSO Act does not stand. He is accordingly acquitted of the said offence. Crl.A. No.39 of 2018 13

Bhagirath Dhangal vs. State of Sikkim

12. The Appellant is convicted of the offence under Section 9(m) of the POCSO Act and Section 354A(1)(i) of the IPC.

13. Consequently, the Appellant is sentenced to suffer simple imprisonment of four years for the offence under Section 9(m), punishable under Section 10 of the POCSO Act with fine of Rs.5,000/- (Rupees five thousand) only, with a default clause of simple imprisonment for six months.

For the offence under Section 354A(1)(i) of the IPC, rigorous imprisonment for a period of three years and fine of Rs.2,000/- (Rupees two thousand) only, with a default clause of imprisonment of one month. The sentences of imprisonment shall run concurrently.

14. The Appeal is allowed to the extent above.

15. No order as to costs.

16. Copy of this Judgment be forwarded to the Learned Trial Court.

( Justice Meenakshi Madan Rai ) Judge 09-12-2019 Approved for reporting : Yes ds

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