Sikkim High Court
State Of Sikkim vs Rup Narayan Rai (Chamling) And Ors on 13 August, 2025
Author: Meenakshi Madan Rai
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
Dated : 13th August, 2025
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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.28 of 2024
Appellant : State of Sikkim
versus
Respondents : Rup Narayan Rai (Chamling) and Others
Appeal under Sections 378(1)(b) of the
Code of Criminal Procedure, 1973
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Appearance
Mr. Yadev Sharma, Additional Public Prosecutor with Mr. Sujan
Sunwar, Assistant Public Prosecutor for the Appellant.
Mr. K. T. Bhutia, Senior Advocate with Mr. Romit Gurung, Advocate
for the Respondents.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The Court of the Special Judge (POCSO Act, 2012), South Sikkim, at Namchi, vide Judgment dated 30-06-2022, in ST(POCSO) Case No.27 of 2020 (State of Sikkim vs. Rup Narayan Rai (Chamling) and Others) acquitted the Respondent No.1 of the following offences;
(a) under Sections 5(l) and 5(n), both punishable under Section 6 Protection of Children from Sexual Offences Act, 2012 (hereinafter, the ―POCSO Act‖);
(b) under Section 7 punishable under Section 8 and under Section 9(l) punishable under Section 10 of the POCSO Act;
(c) He was also acquitted of the offences under Sections 376(2)(n), 376(3) and 354 of the Indian Penal Code, 1860 (hereinafter, the ―IPC‖) by extending to him the benefit of doubt.
(i) The Respondents No.2 and 3 who were charged under Section 201 of the IPC and Respondent No.4 under Section 21(1) Crl. A. No.28 of 2024 State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 2 of the POCSO Act were also acquitted of the offences that they were charged with. Aggrieved, by the acquittals the instant Appeal has been filed.
2. Prior to delving into the merits of the matter a brief summation of the Prosecution case is essential. On 14-08-2020, PW-2 the cousin of PW-1 (the victim), being her uncle's son, lodged the FIR Ext-4, before the jurisdictional police station, complaining that PW-1, who was studying in Class VI was entrusted to the care of the Respondent No.1 for her education and lived in his house. On 14-08-2020, the Respondent No.1 came to the house of PW-2 along with his wife Respondent No.2 and the minor victim PW-1 to visit. Respondent No.1 and Respondent No.2 went for their personal work elsewhere and were to pick up PW-1 later that day. Having spent the day at the home of PW-2, PW-1 refused to return with Respondent No.1 and Respondent No.2 in the evening. On enquiry for her refusal, she told PW-2 that between 07-07-2020 and 08-07-2020 up to 12-08-2020, Respondent No.1 had touched her inappropriately when she was alone in his TV room at his home located village in ‗S' and also raped her about four to five times. On 12-08-2020, she had again been raped by the Respondent No.1 i.e., two days before her visit to her family on 14-08-2020.
(i) The police station on receipt of the FIR, registered Case No.20(08)2020, dated 14-08-2020, under Sections 6/10 of the POCSO Act only against the Respondent No.1. On completion of investigation, Chargesheet was submitted against the accused persons as follows;
1. Rup Narayan Rai (Chamling), under Section 06/10 of the POCSO Act, 2012;
2. Shreelal Gurung, under Section 212 of IPC;
Crl. A. No.28 of 2024State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 3
3. Padma Kri, Chettri (Rai), under Section 201 IPC;
4. Damber Kr. Chettri, under Section 201 IPC;
5. Arun Kr. Pradhan, under Section 201 IPC; and
6. Upashna Rai, under Section 21 of the POCSO Act.
(ii) The Trial Court framed Charge against the Respondent No.1 (Accused No.1 before the Trial Court) under Sections 5(l) and 5(n) both punishable under Section 6 of the POCSO Act, Section 7 punishable under Section 8 of the POCSO Act, Section 9(l) punishable under Section 10 of the POCSO Act, Section 376(2)(n), Section 376(3) and Section 354 of the IPC.
(iii) Charge was framed against the Respondent No.2 (Accused No.3 before the Trial Court) wife of Respondent No.1 and Respondent No.3 (Accused No.4 before the Trial Court), under Section 201 of the IPC individually.
(iv) Charge was framed against the Respondent No.4 (Accused No.6 before the Trial Court) daughter of Respondent No.1 under Section 21(1) of the POCSO Act.
(v) Charge was framed against one Shreelal Gurung (Accused No.2 before the Trial Court), under Section 212 of the IPC, which being exclusively triable by the Magisterial Court was made over to the concerned Court.
(vi) No charge was framed against Arun Kumar Pradhan (Accused No.6 before the Trial Court) lacking prima facie materials. He was accordingly discharged.
(vii) The Respondent No.1 (A1), Respondent No.2 (A3), Respondent No.3 (A4) and Respondent No.4 (A6) entered their respective pleas of ―not guilty‖ and claimed trial. Trial commenced with the Prosecution furnishing twenty-six witnesses. On closure of the Prosecution evidence, each of the Respondents was afforded an Crl. A. No.28 of 2024 State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 4 opportunity of explaining the incriminating evidence appearing against them, by examination under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter, the ―Cr.P.C.‖). The Respondent No.1 claimed that the allegations against him were false and that he had not absconded as alleged at the relevant time. He claimed total innocence and that he had been falsely implicated due to his failure to extend necessary help to PW-4, to protect his Certificate of Identification (COI) and to assist him financially, upon which the entire family had conspired against him. Respondent No.1 sought to and was permitted to examine four witnesses in his defence. Respondents No.2 and 3 denied the allegations made against them and claimed to have been falsely implicated. Respondent No.4 stated that the victim had never narrated anything to her regarding the instant matter and she was falsely implicated in the case.
(viii) DW-1 to DW-4 were examined as witnesses for the Respondent No.1 as sought by him.
(ix) The final arguments advanced by opposing Counsel was heard and the Trial Court on appreciation of the entire evidence or record acquitted all the Respondents as mentioned hereinabove.
3. The following question was taken up for determination by the Trial Court; Whether the Prosecution has been able to prove the age of the victim (PW-1) and establish that she is a child as described under Section 2(d) of the POCSO Act.
(i) Although, no other specific question for determination was framed, it can be culled out from Paragraph 71 of the impugned Judgment that, the Court considered whether the Crl. A. No.28 of 2024 State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 5 Respondent No.1 had committed aggravated penetrative sexual assault upon the victim, aged about thirteen years, touched her body (squeezed her breasts) repeatedly with sexual intent and thereby outraged her modesty. Whether, the Respondents No.2 and 3 intentionally gave false information to the police to screen the Respondent No.1 from legal punishment. Whether, Respondent No.4 failed to report the commission of the offences by Respondent No.1 against the minor victim to the concerned local police or any other authority.
(ii) The Trial Court then took into consideration the evidence of PWs 1, 2, 4, 16, 17, 19, 22, 24 and 26. It was also noted that PWs 3, 5, 7, 8, 12, 13; 14 were declared hostile by the Prosecution. PWs 6, 9, 10, 11, 20, 21, 23 stated nothing to support the Prosecution case. The Trial Court, while considering the age of the victim, in Paragraphs 68 to 70 of the impugned Judgment relied on the evidence of PW-24 Dr. Mukta Mukhia, Medical Officer of the concerned Primary Health Centre (PHC), who verified the Live Birth Register maintained at the PHC. The date of birth of the victim as per her official records was found to be 09- 05-2007. It was observed that the Defence failed to demolish the evidence of PW-24. The evidence of PW-18, Headmaster of the school which the victim was attending was also taken into consideration. He verified the details of the date of birth of the victim from the School Admission Register, duly certifying that, she was admitted to school in Class 1 in the year 2003 and her date of birth was recorded as 09-05-2007. The Court thus concluded that the victim was a minor at the time of the alleged incident. The Trial Court after considering the Prosecution evidence opined that from Crl. A. No.28 of 2024 State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 6 the discussions, authorities relied upon, circumstances of the case, the contradictory evidence on record, the medical evidence and the scientific evidence had all miserably failed to buttress the Prosecution case. On the aforementioned grounds all the Respondents were acquitted.
4. Learned Additional Public Prosecutor while narrating the facts of the case before this Court, urged that the victim had deposed that the last offence of penetrative sexual assault was perpetrated on 12-08-2020. She was a minor at that time, her date of birth being 09-05-2007. Relying on the Section 164 Cr.P.C. statement of the victim, it was contended that, she had given specific details of the incidents of sexual assault and apprised Respondent No.4, who disbelieved her and failed to report the matter to any authority. The victim's allegations have not been demolished under cross-examination. That, the evidence of PWs 1, 2, 4, 9, 17, 19, 20 and 24 establishes that, the Respondent No.1 had committed the offence of penetrative sexual assault on PW-1. The medical examination conducted by PW-17 indicated that there was ―abrasion in the labia minora‖ of the victim about three to four days old. The last incident having occurred on 12-08-2020 and the victim having been examined on 16-08-2020, the injury connects the offence to Respondent No.1. That, the Trial Court failed to appreciate the sole testimony of the victim, who had unwaveringly deposed that Respondent No.1 was the perpetrator of the offence. It was further urged that the Respondent No.1 in his responses under Section 313 Cr.P.C. to question nos.210, 212, 213, 278, 279, 280 and 281 statement, failed to explain the incriminating evidence against him. That, the slightest form of penetration constitutes the Crl. A. No.28 of 2024 State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 7 offence of penetrative sexual assault, this submission was buttressed by the decision in Satyapal vs. State of Haryana1, Krishan vs. State of Haryana2 and State of Rajasthan vs. N. K. The Accused3. Garnering strength from Appabhai and Another vs. State of Gujarat4 Learned Additional Public Prosecutor contended that the Court observed therein that, undue importance must not be attached to minor discrepancies in the depositions. That, the Supreme Court in 5 State of Punjab vs. Gurmit Singh and Others has held that, the Trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. If the evidence of the Prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statements in material particulars. It was further contended that, the acquittals of Respondents No.2, 3 and 4 lacked reasoning. The Trial Court erred in trusting the alibi of DW-3 who deposed that, on 07-07-2020 the Respondent No.1 was at a meeting in the SDF Headquarters and not at the place of occurrence, as also on 12-08-2020 deposed by DW-2. Ext D-6, the register of the parliamentary committee of the SDF party meeting cannot be relied on as it lacks any independent witness. That, the alibi of DW-2, relying on Ext D-5(a), the ―condolence resolution‖, dated 12-08-2020, in which Respondent No.1 was alleged to be present on the death of a party supporter is not buttressed by evidence. Respondents No.2 and 3 are said to have caused disappearance of evidence, however no specific arguments on this aspect were advanced. Respondent No.4 failed to report the matter to anyone, although, PW-1 confided in her 1 (2009) 6 SCC 635 2 (2014) 13 SCC 574 3 (2000) 5 SCC 30 4 1988 (Supp) SCC 241 5 (1996) 2 SCC 384 Crl. A. No.28 of 2024 State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 8 about the acts of the Respondent No.1. Hence, the Judgment of the Trial Court deserves to be set aside and all the Respondents convicted of the offences charged with.
5. Learned Senior Counsel for the Respondents repelling the arguments advanced by the Learned Additional Public Prosecutor contended that, in the first place this is a harassive case against the Respondents No.1, 2, 3 and 4 sans evidence whatsoever of sexual assault. The evidence of PW-1 is rife with contradictions. In her Section 164 Cr.P.C. statement, recorded on 19-08-2020, she specified that she had her first menstrual period on 04-07-2020. The Respondent No.1 touched her inappropriately on her private parts on 06-07-2020 and 07-07-2020. Contrarily, in her evidence before the Court she failed to specify the dates of the alleged offences and mentioned that, the first and second incidents took place in the month of June, 2020, instead of July as alleged in her previous statement to the Magistrate.
(i) In her Section 164 Cr.P.C. statement, she claimed that, Respondent No.1 raped her on multiple occasions but before the Court she claimed categorically that, he had committed penetrative sexual assault on her on five occasions in his room.
(ii) In contradiction to the Section 164 Cr.P.C. statement of PW-1, DW-1 deposed that, on 06-07-2020, Respondent No.1 was present in the Court as a Complainant, in a case lodged by him and the matter was taken up by the Court late in the day. This fact has not been demolished under cross-examination, lending credence to the fact that the victim had conjured up the dates and falsely implicated the Respondent No.1.
Crl. A. No.28 of 2024
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 9
(iii) In her Section 164 Cr.P.C. statement, PW-1 stated that, the Respondent No.1 repeated the offence of penetrative sexual assault on her on 12-08-2020, however DW-2 has deposed that on 12-08-2020 a condolence meeting was held for a party supporter and Respondent No.1 was present therein, as fortified by Ext D- 5(a), the resolution adopted on 12-08-2020. Respondent No.1, had stayed at the party office at Namchi, from around 09.30 a.m. to 05.00 p.m., thereby revealing that Respondent No.1 was elsewhere and not at the alleged place of the occurrence. There is no evidence whatsoever against Respondents No.2, 3 and 4 for the offences under which they were charged.
(iv) That, not one, but three doctors examined the victim after the incident, while two doctors examined the Respondent No.1. Their evidence failed to establish the Prosecution case of sexual assault, including penetrative sexual assault. PW-15 the Senior Psychiatrist, at the District Hospital, who examined the victim on 16-08-2020, concluded that, the victim required no active psychiatric intervention. Learned Senior Counsel urged that, had the victim been subjected to penetrative sexual assault, she would have been affected not only physically but mentally and would have required psychiatric intervention. PW-16 the Gynaecologist, examined the victim on 18-08-2020 and found that she was menstruating, but found no vaginal injuries. The doctor categorically opined that there were no clinical signs to suggest recent or past sexual assault. Relying on the cross-examination of PW-16, Learned Senior Counsel pointed out that as the alleged victim was about thirteen years old and Respondent No.1 fifty-one years, the disparity in their general physical and genital Crl. A. No.28 of 2024 State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 10 development, would have resulted in rupture of the victim's hymen, severe bleeding, tear of muscles and perhaps a need for hospitalisation if there was penetrative sexual assault. These circumstances were absent. PW-16 had opined that even minimal or partial penetration could cause tear of the hymen. The victim's hymen being intact, penetrative sexual assault is ruled out. PW-17 the other doctor, who examined the victim on 16-08-2020, also found her hymen intact with no fresh tears or injuries in and around the vagina. PW-24, the doctor who first examined the victim, on 14-08-2020, found no tears or injury in the external genitalia or in the vaginal region of the victim. Her urine pregnancy test was negative. PW-17, on examining Respondent No.1, found that he was capable of performing sexual intercourse, but found no signs of recent sexual intercourse. The statements made by the victim are belied by the medical examination of both Respondent No.1 and the victim making the Prosecution case doubtful. PW-17 obtained dry and wet vaginal swabs of the minor victim, which were forwarded for forensic examination, however the RFSL report emerged negative and failed to establish sexual assault on the victim. Relying on Rahim Beg and Another vs. State of 6 U. P. , it was urged that the medical examination of the accused showed no signs of sexual assault. Reliance was also placed on 7 Palvinder Kaur vs. State of Punjab . The victim in her deposition in Court, purposely did not state the dates of the alleged offences after being aware of the fact that, the Respondent No.1 in his application for bail had specified that he was not at his residence on 6th/7th July and 12th August, 2020, the dates on which PW-1 6 (1972) 3 SCC 759 7 (1952) 2 SCC 177 Crl. A. No.28 of 2024 State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 11 alleged that the sexual assaults had taken place. While arguing that this Court ought not to interfere with the acquittal granted by the Trial Court, reliance was placed on Chandrappa and Others vs. 8 State of Karnataka and on Union of India and Others vs. Sepoy Pravat 9 Kumar Behuria , where medical evidence did not support the evidence of rape. Reliance was also placed on State of Sikkim vs. 10 Jigmee Bhutia and Shri Sajal Rai alias Adrian vs. State of Sikkim11. That, no evidence had come to light against the other Respondents. Hence, the Judgment of acquittal ought not to be disturbed.
6. Learned Counsel for the parties were heard in extenso and their submissions afforded careful consideration. We have also perused the entire documents on record, examined the evidence and perused the impugned Judgment. The questions that fall for determination by this Court are;
1. Whether the Judgment of acquittal rendered by the Trial Court is correct or whether the Prosecution had in fact been able to establish the allegations of sexual assault and penetrative sexual assault perpetrated by the Respondent No.1 on PW-1.
2. It is also to be determined as to whether the Respondents No.2 and 3 were guilty of the offences under Section 201 of the IPC and;
3. Whether the Respondent No.4 was guilty under Section 21(1) of the POCSO Act in terms of the charge framed against her.
(i) While thus embarking on examining the merits of the matter, in the first instance it may pertinently be noticed that, the Supreme Court in Krishan Kumar Malik vs. State of Haryana12 held that, to hold the accused guilty for commission of the offence of rape, the solitary evidence of the Prosecutrix is sufficient, provided 8 (2007) 4 SCC 415 9 (2019) 10 SCC 220 10 SLR (2021) SIKKIM 467 11 SLR (2021) SIKKIM 181 12 (2011) 7 SCC 130 Crl. A. No.28 of 2024 State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 12 the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. Sterling quality of a witness is described by the Supreme Court in 13 Rai Sandeep alias Deepu vs. State (NCT of Delhi) which reads as follows;
"22. In our considered opinion, the ―sterling witness‖ should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a ―sterling witness‖ whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."13
(2012) 8 SCC 21 Crl. A. No.28 of 2024 State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 13
(ii) In State of Himachal Pradesh vs. Raghubir Singh14, it was held that there is no legal compulsion to look for corroboration of the evidence of the Prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted and there ought to be no circumstance which militate against her veracity. This view was reiterated by the Supreme Court in Wahid Khan vs. 15 State of Madhya Pradesh .
(iii) That having been said, it is now a well settled legal proposition that when minor contradictions arise in the evidence of the Prosecutrix, the Courts should examine the broader probabilities of a case and not get swayed by such minor contradictions or insignificant discrepancies which are not fatal in nature, to throw out an otherwise reliable Prosecution case. Nevertheless if for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony [See Gurmit Singh (supra)].
(iv) The settled principles of law having thus been extracted supra, the object now is to winnow the chaff from the grain to arrive at the truth of the testimony of the Prosecution witness.
(v) The age of the victim is not in dispute, hence a prolix discussion on this aspect is not necessitated, suffice it to notice that the victim in her evidence before the Court stated that she was fourteen years old. Exbt-2 her birth certificate was furnished by the Prosecution as proof of her age. PW-24, issued Exbt-31, verification report regarding the birth of the victim wherein she stated that the date of birth of the victim was registered on 26-05- 2007 in the original births record register of the concerned PHC, 14 (1993) 2 SCC 622 15 (2010) 2 SCC 9 Crl. A. No.28 of 2024 State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 14 indicating her date of birth as 09-05-2007. Her evidence having been tested under cross-examination and remained undecimated, we find that the date of birth of PW-1 has been duly proved. We need dwell no further on this point.
7. With regard to the evidence of PW-1, the victim, her statement under Section 164 of the Cr.P.C. Ext-1 was recorded on 19-08-2020. Under cross-examination she asserted that Ext-1 in two pages was her statement recorded by the Judge. Before proceeding further on this facet, it may be clarified that the statement made under Section 164 of the Cr.P.C. may be used to corroborate or contradict a statement made in the Court in the manner provided by Sections 145 and 157 of the Evidence Act but under no circumstance can it be treated as substantive evidence.
(i) Section 145 of Evidence Act reads as follows;
"145.Cross-examination as to previous statements in writing.─A witness may be cross- examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
Section 145 of the Evidence Act gives the accused the right to cross-examine the witness, on previous statements made by him and reduced into writing, when the previous statements are relevant to the matters in issue. The object of the provision is to afford reasonable opportunity to the witness to explain his previous statement, after his attention has been drawn to the specific portions of his previous statement, which are sought to be contradicted or corroborated, in a fair and reasonable manner and not for the purpose of mere form. When the witness is questioned about every material passage in his previous statement, point by Crl. A. No.28 of 2024 State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 15 point, there is substantial compliance with the requirement of Section 145 of Evidence Act. As far back as in 1952 in Bhagwan 16 Singh vs. The State of Punjab the Supreme Court while elaborating on the second limb of Section 145 of the Evidence Act extracted hereinabove, held that, if it is intended to contradict the witness, his attention must be called to those parts which are to be used for the purpose of contradicting him. It was further held that, if the witness denies having made any statement which is inconsistent with his testimony in Court, the latter testimony would not be vitiated, until the cross-examiner proceeds to comply with the procedure prescribed, in the second limb of Section 145 of the Evidence Act. The credit of a witness can be impeached by proof of any statement which is inconsistent with any part of his evidence in Court. At the same time, reading out the entire Section 164 Cr.P.C. statement to the witness and asking what he had to say with regard to the entire statement is not in compliance with the provision of Section 145 of the Evidence Act.
(ii) In V. K. Mishra and Another vs. State of Uttarakhand and 17 Another , a three Judge Bench of the Supreme Court observed as follows;
"19. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of witness is drawn to that part and this must reflect in his cross- examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction 16 AIR 1952 SC 214 17 (2015) 9 SCC 588 Crl. A. No.28 of 2024 State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 16 and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act that is, by drawing attention to the parts intended for contradiction."
(iii) Section 157 of the Evidence Act reads as follows;
"157. Former statements of witness may be proved to corroborate later testimony as to same fact.─In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved."
This Section is based on the principle that if there is consistency between the previous statement and present statement of a witness it may be considered a ground for believing him. The two things which are essential for Section 157 of the Evidence Act to apply are; The witness should have given testimony with respect to some fact. The second is that he should have made a statement earlier with respect to the same fact at or about the time, when the fact took place or before any authority legally competent to investigate the fact. Section 157 of the Evidence Act makes it clear that, a statement recorded under Section 164 Cr.P.C. cannot be relied upon and is only for the purpose of corroborating or contradicting it, the reason being that the Defence has had no opportunity of cross-examining the Crl. A. No.28 of 2024 State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 17 witnesses whose statements were recorded under Section 164 Cr.P.C. [See R. Shaji vs. State of Kerala (2013) 14 SCC 266)].
(iv) On careful perusal of the evidence of the victim it is seen that the second limb of Section 145 of the Evidence Act has not been complied with either by Prosecution to indicate corroborative evidence as urged in the arguments of Learned Additional Public Prosecutor or to prove contradictions as per the contentions of Learned Senior Counsel for the Respondents. The Trial Court was therefore in error in considering Ext-1, while discussing the evidence of PW-1. Hence, there is no requirement to consider this facet of the arguments advanced by both Learned Court. It is reiterated here that, evidence under Section 164 of the Cr.P.C is not substantive evidence.
(v) The cross-examination of PW-1 extracted the following facts; She was residing in the house of Respondent No.1 for the last three and half years along with her brother. The Respondent No.1 had four daughters, of whom the youngest was of the victim's age and a student of Class V. The driver and the domestic help of Respondent No.1 used to be in the same house, the whole day and return to their homes in the evening. The witness also admitted that from the last week of March, 2020, there was a complete lockdown due to COVID-19 Pandemic, hence all the family members of Respondent No.1 used to be at home most of the time. Her academic performance improved once she started living at the house of Respondent No.1 and she was awarded a prize for 100% attendance when she was in Class VIII. She along with Respondent No.1 and his family members would sit down for family prayers in the morning and evening and Respondents No.1 and 2 Crl. A. No.28 of 2024 State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 18 used to teach them good moral values and discipline. Apart from that, Respondent No.1 after completion of prayer used to touch the victim's feet as well as those of his daughters. Respondent No.1 had a friendly and loving nature, used to play with them, inspire them with positive attitude and encourage them to participate in extra-curricular activities. Two children used to come to the house of the Respondent No.1 to play with them on a daily basis and used to be in the house during the whole day and would return home in the evening. Sometimes both the children would spend the night in the house of Respondent No.1.
(vi) She further deposed that, most of the time the family members, the driver and domestic help used to be in the house of Respondent No.1, who would not allow any of his family members to go out of the house, owing to the pandemic lockdown. Online classes were attended by the victim and the daughters of Respondent No.1 while Respondent No.2 a teacher, used to take classes online. The victim admitted to being aware that, Respondent No.1 was an active member of the SDF political party and would remain outside his house most of the time. In a statement that would have bearing to the instant matter the victim admitted that Respondent No.1 had a house in another place viz., ―N‖, where he used to mostly reside during the lockdown period. As and when he used to return home to ―S‖, party workers and guests used to visit with whom he remained pre-occupied. The witness during cross-examination volunteered to state;
"................................................................................... ............ even when the visitors were at home, the accused No.1 used to come to his room where I would be watching TV at intervals, close the door and commit penetrative sexual assault upon me. ........... ......................................................................."Crl. A. No.28 of 2024
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 19
(vii) She also stated that, she along with the daughters of Respondent No.1 had a separate common room where they slept and the room of Respondent No.1 was adjacent to the sitting room, where Respondent No.1 entertained his guests. On the day when PW-1 was taken home by Respondent No.1, Respondent No.2 his wife and his youngest daughter, she was singing and playing ―Antakshri‖ in the vehicle and she was aware that she would be picked up from her house by Respondent No.1 and his family on their way back to their home at ―S‖. She admitted that, she had even called Respondent No.2, twice over her phone and enquired as to what time they would be picking her up, from her home, to which Respondent No.2 responded that she would call the victim herself and inform her when they would be returning to pick her up. She used to help Respondent No.2 in their home at ―S‖ and most of the time remained with her. Initially, according to her, she was medically examined by one doctor at the District Hospital and half an hour later one male doctor also examined her.
(viii) We find that the allegations pertain to the period of the COVID-19 Pandemic and the consequent persistent lockdowns that followed. We find that during such periods, the Respondent No.1 was living in a different home most of the time. He was therefore away from the home, where the victim was living with his wife and children. Respondent No.1 apparently was involved in a political party and preoccupied in its workings, admittedly with party workers frequenting his house. She claims to have been sexually assaulted for the first time in the TV room but again allegedly ventured into the TV room the next day, when it would be normal Crl. A. No.28 of 2024 State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 20 in the course of human nature to avoid places where injury, physical or mental had been perpetrated on her.
(ix) In light of the evidence given by PW-1 she appears to have had a wholesome well rounded and disciplined life in the house of Respondents No.1 and 2, added to which it was her admission that she had called up Respondent No.2 to enquire when they would pick her up that day. In wake of circumstances discussed, the voluntary statement of the victim extracted hereinabove appears to us to be fraught with improbabilities regarding her allegations of sexual assault and penetrative sexual assault. Her statements of sexual assault therefore have to be considered with circumspection, more especially considering the humanly impossible circumstance of Respondent No.1 raping her, even when he had visitors in his home and would be engaged with them.
(x) As held in Gurmit Singh (supra) when the Court finds it difficult to place implicit reliance on the victim's evidence we may look into the medical evidence to examine whether it supports her case.
(xi) It is worth noticing and rather surprising that, not one doctor but three doctors carried out the physical examination of the victim, while one Psychiatrist made an assessment of her mental health.
8. It may be recapitulated here that, the FIR Ext-3, was lodged on 14-08-2020 and the GD entry was made at 1955 hours at the jurisdictional police station. PW-1 (the victim) was forwarded for medical examination to the medical officer posted at the jurisdictional PHC that same evening. PW-24 is the medical Crl. A. No.28 of 2024 State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 21 officer who conducted the first medical examination of PW-1. She deposed that on 14-08-2020, at around 0200 hours, the minor victim was forwarded from ―M‖ police station for her medical examination. (Pausing here, this is a technically erroneous statement as at 0200 hours it would already be 15-08-2020). According to the doctor, the victim was accompanied by one female police personnel and a female guardian. She was brought with an alleged history of having been sexually assaulted by the Respondent No.1 of ―S‖ on various occasions since July, 2020, the latest being on 12-08-2020 at his residence. PW-24, Dr. Mukta Mukhia, deposed as follows;
"....................................................................... On 14.08.2020, at around 0200 hours, minor victim was forwarded from Melli Police Station for her medical examination. One female police personnel and the female guardian of the minor victim had also accompanied her with the allegedly history of having been sexually assaulted by R** N****** C******* of ‗S', South Sikkim (name of place concealed) on various occasions since July, 2020, latest being on 12.08.2020 at his residence. She was forwarded for medical examination to ascertain the following:-
1. Whether any sign of recent penetrative sexual assault; (sic.)
2. Whether any injuries sustained by her on her body;
3. Whether hymen was intact or not and also to provide vaginal swab (wet and dry) for further investigation.
4. Any other information from your end useful for investigation.
During examination, the victim gave the history that she was assaulted for five to six times since July by her uncle. She also gave history that her uncle used to grab her breasts and squeeze them. She gave history of penetration during such incidents. Last such incidents according to her took place on August 12th. She also gave history that she changed and washed her clothes following the incident. She also gave history of washing her private areas following the incident on August 12th on the same day. She reports that condom was not used by her uncle. No history of vaginal bleeding following the incident according to her. Consent was taken before examination. Mark of identification - two moles below the lips on the cheek. Menarche - July 4th at Crl. A. No.28 of 2024 State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 22 13 years of age. Last Menstrual Period - 4th July, 2020.
....................................................................... No fresh external injuries seen on head to toe examination. Nail clipping, vaginal swabs and innerwear (white with black dots) handed over (sealed) to Uden Bhutia (Constable).
On her examination, no tears or any injury seen in the external genitalia and labia minora, majora, introitus, hymen, perineum. Pubic hair not developed. Urine Pregnancy Test done at Melli PHC came negative.
I also advised for HBsAg, VDRL, HIV investigation. I also advised for Obstetrics and Gynaecology and Psychiatric consultation. I also opined that conclusive opinion cannot be given without above investigation and the investigation by forensic expert.
Exhibit-22, shown to me in the Court today, is the requisition sent by I.O. of the case and Exhibit-23, shown to me in the Court today, is the medical report of the minor victim prepared by me wherein Exhibit- 23(a) is my signature.
...................................." [emphasis supplied] She elucidated in her cross-examination as follows;
".................. It is true that in the history given victim girl alleged to have been assaulted about five - six times since July by her uncle. It is true that she did not give the dates of assault. It is true in the history given by the victim girl she said that every time as and when her uncle grabbed her breasts and squeezed them, he subjected her to penetrative sexual assault. It is true that according to the history given by the victim girl, grabbing of the breasts, squeezing of the breasts and penetrative sexual assault used to go together. ................................. It is true that my examination was from head to toe of the girl to ascertain whether there was any marks of squeezing or grabbing of breasts etc. However, I did not notice any injuries over the body of the victim indicating the presence of any application of force, restraint, torture, squeezing or grabbing. It is true during examination of the victim I did not find any signs of redness (inflammation), swelling, bruise over the external genitalia, the inner thighs. It is true that there was no tenderness over the genitalia, inner thighs during the examination of the victim. It is true that as advised by me all examinations of the victim were done by psychiatrist, gynaecologist and forensic expert. As per the report of the RFSL issued by Prem Kumar Sharma, Junior Scientific Officer, RFSL, Saramsa shown to me in the Court today, blood or semen was not detected in exhibit number BIO- 569(V), BIO 569(VI) and BIO-569(A). It is true according to RFSL report, test of the swabs taken were all negative. It is true in case of grabbing and squeezing, there remains bruise or reddish marks on the body for quite long time. It is not a fact that I am deposing falsely." [emphasis supplied] Crl. A. No.28 of 2024 State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 23
(i) On physically examining Respondent No.1, PW-24, Dr. Mukta Mukhia, found no signs of recent sexual intercourse on Respondent No.1 nor were there signs of fresh injuries, bite mark or scratches present in his body, although he was found capable of performing sexual intercourse. PW-24 after considering the RFSL report, Gynaecological examination report, forensic investigation report and lab investigations was of the view that the incidents of alleged assault could not be ruled out.
(ii) On 16-08-2020, PW-26, the IO, made an application to the District Medical Superintendent (DMS), of the concerned District Hospital for providing expert opinion as PW-24 (supra) had advised OBG consultation. Upon such application, PW-17 the second medical officer, who incidentally was also not a Gynaecologist, examined the victim on 16-08-2020. PW-17, Dr. Pratik Rasaily, identified Ext-13 as the report prepared by him where he noted as hereunder;
"....................................................................... On 16.08.2020, I received an application on behalf of District Medical Superintendent, District Hospital Namchi to make the arrangement for the examination of the minor victim ..................... .
On the same day, at 1600 hours, I examined the minor victim. Victim stated that her uncle R** N****** C******* touched her breasts and squeezed them on 6th or 7th of July. She also stated that he did it more than one time and on later date. She further stated that after two such incidents she was forced to have sexual intercourse six to seven times from July to August, 2020 last one being on 12th of August, 2020. She stated that her uncle R** N****** C******* used to have intercourse with her sometimes on bed and sometime on the wall of the house.
On general examination, pulse - 84 per minute, BP - 110/80 and rest of the general examination was found to be normal.
On examination of private parts, (1) vulva - no fresh injuries/scar seen, (2) labia majora - no fresh injury/old scar seen, (3) labia minora - abrasion approx. 3 to 4 days old, 1 cm in length noted on left side, (4) hymen - no fresh tear and old scar noted, hymen intact, (5) fourchette - no injuries noted, (6) on external examination of body - no injuries noted.Crl. A. No.28 of 2024
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 24 I also obtained two dry and wet vaginal samples of the minor victim and handed over the same to the accompanying police personnel.
...................................." [emphasis supplied] Under cross-examination he deposed as follows;
".................... It is true that abrasion and injury of hymen are visual and can be seen with naked eyes and no special equipment or examination is required. It is true that abrasion is a superficial injury which can be caused by fingernail, accidental, pin prick, thorn. It is true that in the villages people are not very conscious about genital hygiene which may cause irritation to vital organs (vagina) and pricking of the irritation by fingernail can cause abrasion. It is true that in my report I have mentioned that the abrasion was three or four days old that means it must have occurred on 13th or 14th August, 2020. ........................ It is true that I have not mentioned the end of the labia minora where the abrasion was located. It is true that the measurement of the abrasion mentioned in my report marked Exhibit-13 and 14 is based on approximation. It is true that I did not measure the abrasion with an inch tape. It is true that I have not mentioned the colour of abrasion. It is true the age of the abrasion was assumed by me. It is true if the abrasion is fresh the colour would be red, if the abrasion is 12 to 24 hours the colour would be bright red scab as lymph and blood dries up leaving a bright red scab, if the abrasion is 2 to 3 days old colour would be reddish brown scab, if the abrasion is 4 to 7 days old colour would be dark brown to brown black scab, if the abrasion is more than seven days old scab dries and skins fall off leaving depicmented area underneath which gradually gets pigmented. It is true that in my report I have not given the colour of the abrasion to show the age of the abrasion. It is true that abrasion if any is seen has to be measured with inch tape. It is true that since I did not measure the abrasion and also did not give the colour, the abrasion mentioned in the report could be remnant of the (menstrual) blood clot which had adhered to in the labia minora and was mistaken as abrasion by me. It is true that there was no injury at all in and around vagina to suggest forceful sexual intercourse as alleged by the victim girl. My opinion was withheld till RFSL Report was available.................................."
(iii) On the same day, 16-08-2020, the minor victim was forwarded to the Neuropsychiatrist PW-15, Dr. Bishnu Sharma, for consultation. The evidence of the Neuropsychiatrist revealed as follows;
"....................................................................... Presently, I am posted as M.D. Neuropsychiatric (sic.) at District Hospital, Namchi since May 2019.Crl. A. No.28 of 2024
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 25 On 16.08.2020, minor victim ―PT‖ (name concealed) was forwarded for neuropsychiatric consultation on Monday OPD by the Medical Officer Dr. Pratik Rasaily. On the same day, I conducted the psychiatric consultation of the minor victim. The patient was reviewed and examined. Patient was well oriented to time, place and person. Sleep was normal. Appetite was normal. Bladder was also normal. No active psychiatric intervention was required.
......................................................................."
Under cross-examination PW-15 opined as follows;
"It is true that in my report Exhibit-8A(a) I have not indicated/mentioned about the demeanor of the victim girl whether she was talkative, shy, nervous, fear to face the people etc. It is true that if the child keeps on changing her statement that is the indication that the child is prone to telling lie. It is true that age till eighteen is critical age. The children falling under this age group get excited and makes childish statements without thinking the serious consequences. It is true that children falling under this group are prone to make serious allegations against others without realizing the consequences of their allegations. The children falling under this group may or may not suffer from hallucination depending on hormonal changes and environment factors. It is true that the characters of these children depend on the environment from where they have come and where they are living. It is true that children having broken family have disturbed mind and may make serious allegations without realizing the consequences. It is true in the broken family the children imitate the behaviour of their parents and use filthy languages as normal languages. The children also have the knowledge of physical structure, vital organs and use of the same. It is not a fact that I am deposing falsely."
(iv) PW-26, the IO, on 18-08-2020, filed another requisition to the Medical Superintendent of the District Hospital requesting expert opinion as per the advice of PW-24 for OBG consultation.
(v) The victim was again examined by PW-16, Dr. Rajesh Kharel, the Gynaecologist, at the District Hospital. While identifying Ext-10 as the medical report pertaining to the victim prepared by him, he deposed that;
"....................................................................... On the same day i.e. on 18.08.2020, at around 1550 hours, I medically examined the minor victim after taking the consent of one Shanti Chettri of Child Care Institute, Ravangla.Crl. A. No.28 of 2024
State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 26 During my examination, I found the general and systemic examination were normal. No marks of resistance or injuries noted on any part of the body. On local examination, she was menstruating at that time. The examination of labia majora, minor, fourchette - no injuries seen. Hymen appeared intact. There were no fresh or old injuries noted.
On my opinion, there were no clinical signs to suggest recent or old sexual assault. Since the results of vaginal swabs were awaited, the final opinion was deferred.
......................................................................."
His cross-examination revealed as follows;
"........................... It is true that hymen is visible on external examination and no special equipment is required for the examination of the hymen. It is true that because of disparity in the age and in their general body features and genital development there was bound to be rupture of hymen, severe bleeding, tear of muscles and it becomes minimal hospitalization and operation also could have been necessary for the repair of the hymen. It is true that even minimal/partial penetration would cause tear of hymen. It is true that abrasion is a superficial injury. Abrasion can be caused by fingernail, accidental, pin prick, thorn. It is true in villages people are not so conscious about genital hygiene which caused irritation and the girls may rub the irritation by finger causing abrasion. It is true the history given was that victim was subjected to sexual assault (penetrative) with force on 6th July and last episode was on 12.08.2020. It is true that no marks of resistance or injuries were noted by me on any part of the body. It is true on my examination labia majora, minora, fourchette were found intact, further hymen was also found intact. No fresh or old injuries were seen in and around the vagina. It is true on the basis of examination and findings I gave my opinion that there was no clinical signs to suggest recent or old penetrative sexual assault. .................."
(emphasis supplied)
(vi) Having thus carefully considered the evidence of the victim and the doctors, although it is her specific claim that, she was subjected to penetrative sexual assault and sexual assault, the medical evidence does not fortify such allegations.
(vii) In Modi A Textbook of Medical Jurisprudence and Toxicology - Twenty Fourth Edition - Justice K Kannan -- Lexis Nexis, at Page 667, it has been explained that if a girl had struggled and put up resistance at the time when she was raped, she would have received some injuries on her buttocks, hips, back, elbow, and Crl. A. No.28 of 2024 State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 27 thigh. Medical evidence is valuable for proving the presence or absence of marks of struggle. The presence of marks of struggle on the body and clothes, and marks of injury on the person, particularly the private parts, would be evidence supporting the allegation of rape. However, we are alive to the settled law and medical jurisprudence that absence of marks of resistance is not a conclusive factor to disbelieve a case of rape.
(viii) That having been said, the medical evidence of the three doctors, are categorically indicative of the fact that there were no injuries on any part of the person of the victim, including her genital. PW-16 specified that there were no injuries even on the labia minora and PW-17 having deposed that he found an abrasion of 1 centimetre in length in the labia minora, aged about three to four days, under cross-examination admitted that the age of the abrasion was assumed by him. Admittedly, he had not given the colour of the abrasion to indicate its age. He further admitted that the abrasion could be the remnant of menstrual blood clot, which had adhered to the labia minora and was mistaken as abrasion by him, bringing to naught the argument of the Additional Public Prosecutor on this facet. PW-24 had also seen no such abrasion on the labia minora of the victim on her examination. The forensic report of the Junior Scientific Officer found no blood or semen in the articles forwarded to him. In any event, this requires no consideration as neither the articles nor the scientist were brought before the Court. These facts were only brought out in the evidence of the IO PW-26.
(ix) It is explained in Modi A Textbook (supra) that, it is always desirable that the victim of rape and the perpetrator should Crl. A. No.28 of 2024 State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 28 be medically examined as quickly as possible. In the instant case, evidence reveals that the victim was examined the same night after the FIR was lodged with the allegation that she was last raped on 12-08-2020. In Modi A Textbook (ibid), at Page 668, while discussing the consequence of sexual assault it has been explained that;
"............................................................................... (3) Bruising and laceration of the external genitals may be present with redness, tender swelling and inflammation.
(4) In nubile virgins, the hymen, as a result of complete sexual intercourse, is usually lacerated, having one or more radiate tears, (more so in the posterior half), the edges of which are red, swollen and painful, and bleed on touching, if examined within a day or two after the act. These tears heal within five or six days and after eight to ten days, become shrunken and look like small tags of tissue. Frequent sexual intercourse and parturition completely destroy the hymen, which is represented by several small tags of tissue, which are called carunculae hymenealis or myrtiformes.
................................................................................................. In girls under 14 years of age, the vaginal orifice is usually so small that it will hardly allow the passage of the little finger through the hymen. It is often difficult to distinguish between an indentation in a fimbriated hymen and a tear, unless the hymen is stretched by a finger tip, glass rod.
The fourchette and posterior commissure are not usually injured in cases of rape, but they may be torn if the violence used is very great. The extent of injury to the hymen and the genital canal depends upon the degree of disproportion between the genital organs of both the parties and the violence used on the female. In small children, the hymen is not usually ruptured, but may become red and congested along with the inflammation and bruising of the labia. If considerable violence is used, there is often laceration of the fourchette and the perineum.
When grown-up virgin girls, unmarried or married women, offer resistance, marks of violence, such as bruises and scratches of fingernails may be found on the external genitals, perineum, abdomen, chest, back, limbs, neck and face. .......................... ................................................................................................."
(x) It emerges with no doubt that physical injuries were not found on the victim as deposed by PWs 16, 17 and 24, which ought to have been sustained by her in a case of complete Crl. A. No.28 of 2024 State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 29 penetrative sexual assault, considering her tender age, PW-15, the Neuropsychiatrist, who examined the victim opined that the victim was not in need of professional psychiatric intervention. In our considered view this evidence also buttresses the lack of physical injuries and thereby her stable mental condition with no signs of trauma or distress as would otherwise be expectedly found on a minor victim of sexual assault.
(xi) Modi A Textbook (ibid) delineates that, the victims of rape may suffer from shock and post traumatic stress, disorder, they need professional psychological help. The medical officer should be ready to offer assurance to the victim or her parents. In the instant case, however PW-15 not find any rape trauma syndrome on the victim and PW-1 herself admitted under cross- examination that when Respondent No.1 and his family were taking her in his vehicle to drop her home, she was singing along with his youngest daughter and playing ―Antakshri‖, which is revelatory of her normal mental status, leading to doubts about the veracity of her allegations of sexual assault and her evidence. The Prosecution, it may be mentioned has relied only on the evidence of PWs 1, 16, 17 and 24.
(xii) PW-2 the Complainant claims to be the cousin of the victim, being her uncle's son. He merely lodged the complaint on being told by the victim that, Respondent No.1 ―committed rape upon her‖. His cross-examination extracted the fact that they had submitted a written FIR to the officer in charge, which was not found in the case records and subsequently Ext-3 was written by one of their uncles. He admitted ".....................It is true that Nabin Ashang have been directed to scribe the FIR by one SI Crl. A. No.28 of 2024 State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 30 Madam..............". Admittedly, the ―domicile‖ of his father was cancelled when he was actively involved in politics. He denied having conspired against Respondent No.1 and his family.
(xiii) PWs 3, 5, 7, 8, 12, 13 and 14 turned hostile and despite careful perusal of their evidence, no testimony could be culled out as being supportive of the Prosecution case.
(xiv) On consideration of the evidence of PW-4 the emergence of a new story is detected as PW-4 the father of PW-2, states that, he received a call from Respondent No.1, who told him that he had beaten the victim with a stick and after he had dropped her at her home she was not willing to return, he thus requested PW-4 to advise her to return. He then called his younger son over the phone and enquired as to why the victim was not willing to return, to which he was informed by his son PW-2 that, the victim was sexually assaulted by Respondent No.1. It is also seen that PW-4 has claimed that Respondent No.1 offered to pay around 6 to 7 lakhs to the family of the victim to settle the matter. These new facts pertaining to beating of victim and her reluctance thereby to return and the offer of money, are seeing the light of day for the first time, as it was not mentioned in the FIR or in the witness's statement during investigation and therefore deserve to be and are disregarded.
(xiv) DW-1 vouched for the fact that on 06-07-2020, the Respondent No.1 was at a Court, where he was examined as the Complainant in a Criminal case, and his matter found listed almost at the end of the causelist. His evidence was not decimated under cross-examination. DW-2 testified that on 12-08-2020, the date on which Respondent No.1 is alleged to have committed Crl. A. No.28 of 2024 State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 31 penetrative sexual assault on the victim, Respondent No.1 was as the vice-president of SDF party, in fact, at a condolence meeting, held in the district party office. The cross-examination extracted the fact that Respondent No.1 came to the office at 09.30 a.m. and stayed there till 05.00 p.m. His deposition also remained undecimated. DW-3 deposed that on 07-07-2020, the second date on which the victim claims to have been sexually assaulted by Respondent No.1, he (Respondent No.1) was at a parliamentary committee meeting, in the headquarters of SDF party, at Gangtok. The resolution of the Meeting dated 07-07-2020 was furnished before the Court as Ext D-6, containing the signatures of the attendees, including that, of Respondent No.1 as Ext D-6(m). According to DW-3, Respondent No.1 came to Gangtok office on 06-07-2020 for the meeting to be held on 07-07-2020. After attending the meeting at Gangtok which continued till 04.00 p.m., Respondent No.1 remained in Gangtok that night as there was a programme to visit Rhenock Constituency and Gnathang Machong Constituency on 08-07-2020. They left for the said place in the early morning of 08-07-2020. The evidence given by the said witness stood the test of cross-examination.
9. In Adambhai Sulemanbhai Ajmeri and Others vs. State of 18 Gujarat , the Supreme Court considered how the evidence of Prosecution and defence witnesses are to be evaluated and held as follows;
"219. It has been held by this Court in a catena of cases that while examining the witnesses on record, equal weightage shall be given to the defence witnesses as that of the prosecution witnesses. In Munshi Prasad v. State of Bihar [(2002) 1 SCC 351 : 2002 SCC (Cri) 175] , this Court held as under:
(SCC p. 356, para 3) 18 (2014) 7 SCC 716 Crl. A. No.28 of 2024 State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 32 ―3. ... Before drawing the curtain on this score, however, we wish to clarify that the evidence tendered by the defence witnesses cannot always be termed to be a tainted one by reason of the factum of the witnesses being examined by the defence. The defence witnesses are entitled to equal respect and treatment as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution -- a lapse on the part of the defence witnesses cannot be differentiated and be treated differently than that of the prosecutors' witnesses.‖ (emphasis supplied)
220. Further, it has been held in State of Haryana v. Ram Singh [(2002) 2 SCC 426 : 2002 SCC (Cri) 350] as under: (SCC p. 439, para 19) ―19. ... Incidentally, be it noted that the evidence tendered by defence witnesses cannot always be termed to be a tainted one -- the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution. Rejection of the defence case on the basis of the evidence tendered by the defence witness has been effected rather casually by the High Court. Suggestion was there to the prosecution witnesses, in particular PW 10 Dholu Ram that his father Manphool was missing for about 2/3 days prior to the day of the occurrence itself--what more is expected of the defence case: a doubt or a certainty--
jurisprudentially a doubt would be enough: when such a suggestion has been made the prosecution has to bring on record the availability of the deceased during those 2/3 days with some independent evidence. Rejection of the defence case only by reason thereof is far too strict and rigid a requirement for the defence to meet -- it is the prosecutor's duty to prove beyond all reasonable doubts and not the defence to prove its innocence -- this itself is a circumstance, which cannot but be termed to be suspicious in nature."
(i) In State of U.P. vs. Babu Ram19, the Supreme Court observed as follows;
"21. ........................... attention to the following observations contained in the decision of this Court in Dudh Nath Pandey v. State of U.P. [(1981) 2 SCC 166 : 1981 SCC (Cri) 379] : (SCC p. 173, para 19) ―Defence witnesses are entitled to equal treatment with those of the prosecution. And, courts ought to overcome their traditional, instinctive disbelief in defence witnesses.‖
22. We may quote the succeeding sentence also from the said decision for the sake of completion of the observations of their Lordships on that score. It 19 (1981) 2 SCC 166 Crl. A. No.28 of 2024 State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 33 is this: ―Quite often they tell lies but so do the prosecution witnesses.‖
23. Depositions of witnesses, whether they are examined on the prosecution side or defence side or as court witnesses, are oral evidence in the case and hence the scrutiny thereof shall be without any predilection or bias. No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses for which different yardsticks cannot be prescribed as for those different categories of witnesses."
(ii) We are indeed mindful of the provisions of Section 29 of the POCSO Act, 2012, in the context of the victim's statement. However, there has to be some evidence for the Court to base a conviction before relegating an accused to the guillotine.
10. Thus, from a careful perusal and consideration of the entirety of the evidence on record, including that of DW's, we are inclined to conclude that the allegation of sexual assault and penetrative sexual assault are not established by the evidence on record. We also observe that had there been repeated penetrative sexual assault on PW-1 as claimed by her, there would have been some physical indications on her person, bearing in mind her tender years and considering that the Respondent No.1 was a fully grown adult of fifty-one years of age. The Respondent No.1 is said to have perpetrated penetrative sexual assault on her for the last time on 12-08-2020 before her medical examination was done on 14-08-2020, pursuant to the lodging of the FIR. Despite the early physical examination of the victim not even redness was detected in the vagina of the victim nor was any swelling in her private part. The hymen, despite allegation of repeated penetrative sexual assault was found to be intact by all the doctors who examined her. She was not in need of any professional psychological assistance or intervention or supportive care and was absolutely normal mentally Crl. A. No.28 of 2024 State of Sikkim vs. Rup Narayan Rai (Chamling) and Others 34 on examination by Neuropsychiatric PW-15, Dr. Bishnu Sharma. The accused bore no marks on his body to indicate that he had sexually assaulted any person. There were no injuries on his genital to indicate force applied by him on the victim.
11. So far as the other Respondents are concerned, no evidence has appeared against them under the provisions of law under which they are charged. There is no proof whatsoever that they are guilty of the offences that they had been booked under.
12. In conclusion, we are of the considered view that the impugned Judgment dated 30-06-2022, in ST(POCSO) Case No.27 of 2020 (State of Sikkim vs. Rup Narayan Rai (Chamling) and Others), suffers from no error and thereby warrants no interference.
13. The Appeal stands dismissed and disposed of accordingly.
14. Copy of this Judgment be forwarded to the Trial Court for information along with its records.
15. Pending applications, if any, also stand disposed of.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
13-08-2025 13-08-2025
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