Sikkim High Court
State Of Sikkim vs Bhakta Bahadur Gurung on 1 April, 2015
Bench: Chief Justice, S.P. Wangdi
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
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D.B. : HON'BLE MR. JUSTICE S. K. SINHA, CHIEF JUSTICE
HON'BLE MR. JUSTICE S. P. WANGDI, JUDGE
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Crl.A. No. 06 of 2014
Appellant : The State of Sikkim
versus
Respondent : Bhakta Bahadur Gurung
S/o Late Dhan Bahadur Gurung,
Resident of Churibotay,
Mangsari
Soreng,
West Sikkim.
An application under Section 378(3)
of the Code of Criminal Procedure, 1973
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Appearance
Mr. J. B. Pradhan, Additional Advocate General
and Public Prosecutor with Mr. Karma Thinlay
Namgyal, Additional Public Prosecutor, Mr. S. K.
Chettri and Mrs. Pollin Rai Assistant Public
Prosecutors for the State-Appellant.
Mr. Tashi Rapden Barfungpa, Advocate as Legal
Aid Counsel for the Respondent-Accused.
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Crl.A. No.06 of 2014 2
State of Sikkim vs. Bhakta Bahadur Gurung
JUDGMENT
(1st April, 2015) Wangdi, J.
[1] The Respondent/Accused was sent up for trial on a charge under Section 376 Indian Penal Code (for short "IPC") for having committed rape on one Ms Sarita Tamang, a deaf and dumb women. Shorn of details, it is sufficient to state for the purpose of this appeal that on the basis of a written complaint filed by Mrs. Tshering Maya Tamang, P.W.1, mother of the victim, on 05.02.2011 at the Soreng Police Station, West Sikkim, case under Section 376 IPC was registered against the Respondent/Accused, Bhakta Bahadur Gurung, being Soreng P.S. Case No.02(02)11 dated 05.02.2011, and investigation taken up by the Investigating Officer (in short the "I.O".).
[2] Investigation of the case revealed that on 21.01.2011 at about 1500 hours, the Respondent/Accused had committed sexual intercourse with deaf and dumb Ms. Sarita Tamang when she was grazing her goats at the irrigational channel above the Jorethang-Sombaria road at Cheuribotey, Mangsari, West Sikkim.
Crl.A. No.06 of 2014 3
State of Sikkim vs. Bhakta Bahadur Gurung [3] Having found sufficient materials, charge-sheet was filed against the Respondent/Accused for having committed rape on the victim punishable under Section 376 IPC and was committed to trial before the Fast Track Court, South and West, at Namchi, which registered Sessions Trial (Fast Track) Case No. 13 of 2013 upon conclusion of which, by judgment dated 16.11.2013, the Learned Judge, Fast Track Court acquitted the Respondent/Accused having found that the prosecution had failed to prove its case beyond reasonable doubt. [4] It is against this that the present appeal has been preferred by the State/Appellant under Section 376 IPC and under Sub-Section (3) of Section 378 of the Code of the Criminal Procedure, 1973 (for short "Cr.P.C."). Having granted leave, the appeal was taken on board and heard finally on 24.03.2015.
[5] Although in the memo of appeal, the Appellant has questioned the impugned judgment on several grounds and also raising an alternative ground that even if the offence under Section 376 IPC had not been made out against the Respondent/Accused, the materials and evidence on record were sufficient to convict him under Crl.A. No.06 of 2014 4 State of Sikkim vs. Bhakta Bahadur Gurung Section 354 IPC but, during the course of the arguments, Mr. Karma Thinlay Namgyal, Learned Additional Public Prosecutor, chose to confine himself only on the finding that the sexual intercourse between the Respondent/Accused and the victim was consensual. It was submitted that the Trial Court had completely overlooked the medical report, Exhibit 23, of the Consultant Neuro-Psychiatry, P.W. 23, which revealed the victim to be deaf and dumb and mentally retarded and, similar medical report marked Exhibit 3 of the Medicolegal Consultant, District Hospital, Namchi, South Sikkim, P.W.17, as well as the oral evidence of these witnesses. It was also urged that the evidence of these witnesses and the medical reports corroborate the oral evidence of P.Ws 2, 3 and 4, who are said to be the eye-witnesses to the incidence, in testifying that the Respondent/Accused was seen having sexual intercourse with the victim and, also the evidence of P.W.1, the mother of the victim, and P.Ws 6 and 8, her sisters who have deposed that the victim was deaf and dumb.
[6] As per the Learned Additional Public Prosecutor, the fact that the Respondent/Accused had committed the offence has categorically been stated by the victim in her Crl.A. No.06 of 2014 5 State of Sikkim vs. Bhakta Bahadur Gurung own evidence as P.W.18. Relying upon Tulshidas Kanolkar vs. State of Goa : (2003) 8 SCC 590, it was submitted that having regard to the established fact that the victim was mentally retarded, she could not legally have given consent which would necessarily involve understanding of the fact of such consent. A girl whose mental faculties are undeveloped cannot be said to have suffered sexual intercourse with consent. It is submitted that the passive giving in by the victim due to mental retardation cannot be considered to be consent in law. The Learned Additional Public Prosecutor seriously assailed the finding of the Trial Court on this score as being clearly in conflict with the well-settled principle. [7] Relying upon State of Uttar Pradesh vs. Chhotey Lal : (2011) 2 SCC 550, consent has to satisfy the requirements as provided under Section 90 IPC in as much as it is not a consent if it is given by a person who from unsoundness of mind is unable to understand the nature and consequence of that to which he gives his consent. It was submitted that the finding of the Trial Court being inconsistent with the legal position and the evidence on record, the impugned judgment was liable to be set aside.
Crl.A. No.06 of 2014 6
State of Sikkim vs. Bhakta Bahadur Gurung [8] Mr. Tashi Rapden Barfungpa, Learned Advocate as Legal Aid Counsel, appearing on behalf of the Respondent/Accused, on the other hand, would submit that there was no error in the finding of the Trial Court. The medical report, Exhibit 3, issued by the Medicolegal Expert, P.W.17 and, his medical report, Exhibit 3 unerringly reveal that there was nothing to suggest forceful sexual intercourse, though the victim was accustomed to sexual intercourse.
[9] It was submitted that although it has been opined in the medical reports, Exhibits 3 and 23 that the victim was deaf and dumb and mentally of low I.Q., the evidence of P.W.1, who is no less than the mother of the victim, and her sisters P.Ws 6 and 8 clearly show that her mental retardness was not to such extent that she was incapable of giving consent. It has come in their evidence that she was capable of expressing her mind by way of gestures and that she had the capability to take the responsibility of tending to the flocks of goats and grazing them. It has further been revealed from the evidence of P.W.1, the mother, that the victim who was more than 33 years old, would intimate very clearly to her whenever she Crl.A. No.06 of 2014 7 State of Sikkim vs. Bhakta Bahadur Gurung had any problems and that, on the day of the incident she neither complained to the mother nor to her sisters of any problem or suffering.
[10] As per him, the evidence of P.Ws 2, 3 and 4, said to be the eye-witnesses of the offence, only reveal that they had seen the Respondent/Accused and the victim having sexual intercourse and, the fact that she simply inquired about the goats by gesturing and did not at all complain when they met her immediately after the incident, is inconsistent with the story of her being been ravished forcibly by the Respondent/Accused. The Learned Counsel would argue that the medical report, Exhibit 23 of the Consultant Neuro-Psychiatry, P.W.23, was unreliable as the opinion was not based upon proper medical examination but given instantly after a cursory clinical examination. He had not examined the victim on the level of her mental retardation as to whether it was mild, moderate, severe or profound. It, therefore, could not be said that the medical opinion was so conclusive so as to lead one to believe that the victim was completely incapable of understanding the significance of the act. Crl.A. No.06 of 2014 8
State of Sikkim vs. Bhakta Bahadur Gurung [11] Relying upon State of Himachal Pradesh vs. Jai Lal and Ors. : AIR 1999 SC 3318, it was submitted that the credibility of an expert like the Consultant Neuro- Psychiatry, P.W.23, would depend upon the reasons stated in support of his conclusions and the data and materials furnished that form the basis of his conclusions. He submits that the opinion Exhibit 23 being bereft either of any reason or data and materials forming the basis of his conclusion, it could not be said that the evidence of these witnesses was reliable. Resting on R. Paulsamy vs. Union of India and Anr. : 1999 CRI.L.J. 2897 (SC), it was urged that the opinion given by medical witnesses was subject to test by the Court and, if the opinion is wanting in logic or objectivity, Court is not obliged to go by that of opinion. [12] It is then submitted that in the event of difference in the medical opinion and ocular evidence it is trite that the ocular evidence if found credible and trust worthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. The Learned Counsel would refer to State of Madhya Pradesh vs. Dharkole alias Govind Singh and Ors. : AIR 2005 SC 44, to reinforce his argument that the victim was not mentally retarded. It is submitted that even the I.O., P.W.22, has not stated Crl.A. No.06 of 2014 9 State of Sikkim vs. Bhakta Bahadur Gurung anything to suggest that but, only to the extent that the victim was deaf and dumb which is also the case stated even in the charge-sheet. He would re-emphasise the settled position of law that the prosecution cannot take support of the weakness of the defence which the Appellant/State was apparently seeking to do in the present case. The Learned Defence Counsel would submit that there was no substantial or compelling reason to interfere with the findings of the Trial Court and upsetting the acquittal of the Respondent/Accused which is necessary for the prosecution to establish in an appeal under Section 378 Cr.P.C.
[13] We have given anxious consideration to the rival submissions and the evidence on record. The exercise of jurisdiction of this Court in an appeal against acquittal and its parameters is now well-settled. Out of the plethora of decisions on the question, we may site Ramanand Yadav vs. Prabhu Nath Jha and Ors. : (2003) 12 SCC 606, which reemphasizes the principle precisely as under:-
"21. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of Crl.A. No.06 of 2014 10 State of Sikkim vs. Bhakta Bahadur Gurung justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence of not. (See Bhagwan Singh v. State of M.P.) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, Ramesh Babulal Doshi v. State of Gujarat, Jaswant Singh v. State of Haryana, Raj Kishore Jha v. State of Bihar, State of Punjab v. Karnail Singh and State of Punjab v. Phola Singh".
[14] On the anvil of the above law, we may examine the present case to arrive at a finding as to whether in the facts and circumstances of the case, two views are possible on the evidence adduced, i.e., one pointing to the guilt of the accused and the other to his innocence and, whether there are compelling and substantial reasons for us to interfere with the impugned judgment of acquittal. [15] The sole foundation of the case of the Appellant/State in the appeal which has been pressed at Crl.A. No.06 of 2014 11 State of Sikkim vs. Bhakta Bahadur Gurung the hearing by the Learned Additional Public Prosecutor is that the Learned Fast Track Court, did not consider the medical evidence which established that the victim was a mentally retarded person and, therefore, had overlooked the trite position that consent given by a mentally retarded person is in law no consent.
[16] In support of his contentions the Learned Additional Public Prosecutor placed heavy reliance on the evidence of the Consultant Neuro-Psychiatry, P.W.23 and his medical report, Exhibit 23 and, the Medicolegal Consultant, P.W.17 and his opinion Exhibit 3. On a first brush, we would indeed be inclined to agree with the contention. However, on a close examination of the medical evidence, we find it difficult to accept those as clinching and convincing. The entry in the medical report, Exhibit 3, dated 05.02.2011 of the Medicolegal Consultant, P.W.17, no doubt mentions the victim as being mentally of low I.Q. However, in the remarks column there is no mention of there being a history of the victim suffering from mental retardation.
[17] Even the medical reports, Exhibit 23 dated 25.02.2011 and Exhibit 22 of the Consultant Neuro- Crl.A. No.06 of 2014 12
State of Sikkim vs. Bhakta Bahadur Gurung Psychiatry, P.W.23, only mentions mental retardation. Apparently the opinion is formed on a clinical examination and not on the basis of a detailed test to which the victim was subjected to. Secondly, the terms "low I.Q." and "mentally retarded" are relative and not at all indicative of the extent of the lowness of the I.Q. and the severity of mental retardness. Had the medical examination of the victim been a detailed one, it would perhaps been possible for us to come to a definite conclusion. The oral evidence of the mother of the victim P.W.1, unambiguously reveal that she could communicate with the victim who was more than 33 years old by gesture and could understand her by gestures.
[18] It is also in her evidence that her daughter would intimate everything very clearly when faced with any problem or suffering and that on the day of the incident she did not tell her anything. P.Ws 6 and 8 who are her sisters have not at all stated that the victim was mentally retarded except that she was deaf and dumb and that she could express her mind by way of gestures and that on the day of the incident when she returned from her routine work she did not complain of anything. The evidence of the so-called eye-witnesses are also silent as Crl.A. No.06 of 2014 13 State of Sikkim vs. Bhakta Bahadur Gurung to whether the victim was mentally retarded. Their evidence only establishes that the Respondent/Accused and the victim were having sexual intercourse and that the latter was found to be dumb. It is in fact in their evidence that the victim did not gesture seeking their help and that after the incident she only inquired about the goats and made no complaint against the Accused. Even the evidence of the victim as P.W.18 and in her statement under Section 161 Cr.P.C. marked Exhibit 'B' do not indicate commission of the offence by the Respondent/Accused on her. That apart, we note that even the Fast Track Court did not make any observation while recording the evidence of the victim that either she was mentally retarded or was unable or unfit to give her evidence. On the contrary, the Fast Track Court had found her competent to give evidence by communications by gestures through her mother.
[19] When we consider the evidence of the witnesses discussed above, it is difficult for us to accept as convincing the medical report that the victim was mentally retarded. The best evidence on this fact, in our considered opinion, is that of the mother and the two sisters. As already discussed, these witnesses have most Crl.A. No.06 of 2014 14 State of Sikkim vs. Bhakta Bahadur Gurung significantly not stated that the victim was mentally retarded except that she was deaf and dumb. In our view, a deaf and dumb person need not necessarily be mentally retarded. Rather from the evidence of the mother P.W.1 and her sisters P.Ws 6 and 8, we find that she was quite intelligent and was capable of communicating by gestures. [20] On this question apart from State of Himachal Pradesh vs. Jai Lal and Ors. (Supra) cited by the Learned Counsel for the Respondent/Accused, in Ramanand Yadav vs. Prabhu Nath Jha (Supra), it has been held as under:-
"17. So far as the alleged variance between medical evidence and ocular evidence is concerned, it is trite law that oral evidence has to get primacy and medical evidence is basically opinionative.................................."
[21] The case of Tulshidas Kanolkar vs State of Goa (supra) cited by the Learned Additional Public Prosecutor is one where it was established that the mental faculties of the victim were under developed and her intelligence quotient (I.Q.) was not even one third of a normal person and was incapable of comprehending the vicissitudes of the act perpetrated on her by the Accused several times. Therefore, the facts are distinguishable from the present case for the reasons alluded to above. The other case of Crl.A. No.06 of 2014 15 State of Sikkim vs. Bhakta Bahadur Gurung State of Uttar Pradesh vs. Chhotey Lal (supra) lays down the well-established principle underlying Section 90 IPC which would be applicable depending on the facts and circumstances of each case. Clearly it is not applicable in the case at hand.
[22] For the aforesaid reasons, we are inclined to reject the medical opinion, Exhibits 3 and 23, as being reliable. Otherwise also the facts and circumstances and the evidence, we find that two views, i.e., one pointing to the guilt of Accused and the other to his innocence, are possible and the law mandates that we should accept the latter view. We also do not find any error in the impugned judgment which can be considered as compelling and substantial for us to interfere.
[23] For all these reasons, we do not find this to be a fit case where we should upset the judgment acquitting the Respondent/Accused.
[24] In the result, the Appeal is dismissed.
[25] No order as to costs.
Crl.A. No.06 of 2014 16
State of Sikkim vs. Bhakta Bahadur Gurung [26] A copy of this judgment and the original records be transmitted to the Learned Judge, Fast Track Court, South and West at Namchi, for due compliance.
( S. P. Wangdi ) ( S. K. Sinha )
Judge Chief Justice
01-04-2015 01-04-2015