Ten Tshering Lepcha vs State Of Sikkim on 27 July, 2015

[Cites 13, Cited by 1]

Sikkim High Court

Ten Tshering Lepcha vs State Of Sikkim on 27 July, 2015

1. This Appeal is directed against the judgment dated 01-03-2013 of the Sessions Judge, South and West Sikkim at Namchi in S.T. Case No.06 of 2011 by which the Appellant was convicted of the offences under Sections 448/376 of the Indian Penal Code, 1860 (for short "IPC") and sentenced to undergo simple imprisonment of 7 (seven) years and to pay a fine of ` 1,000/- (Rupees one thousand) only failing which to undergo further simple imprisonment of 1 (one) month for the offence under Section 376 IPC. Against the offence under Section 448 IPC, he was directed to undergo simple imprisonment of 1 (one) year, with the sentences in both the offences to run concurrently. 2(i). The facts of the prosecution case as would be necessary for disposal of this Appeal is that when investigation was carried out against the Appellant under Section 376 IPC by the Jorethang Police in a case registered against him under that Section vide Jorethang P.S. Case No.04(01)2011 dated 10-01-2011, 3 Crl.A. No.23 of 2014 Ten Tshering Lepcha vs. State of Sikkim it was revealed that on 08-01-2011 when the victim Arati Biswakarma, P.W.10 who was of 7 (seven) years of age was in her house with her 3 (three) years' old younger brother Mandeep Biswakarma while their parents, Mamta Tamang, P.W.5 and Jit Bahadur Biswakarma, P.W.8, were away at the house of one Ram Prasad Biswakarma, P.W.9, the Appellant opened the door that was latched from the outside and entered the house. Upon entering when he found only the two sleeping, he chased the younger brother out of the house and then raped the victim.

(ii) The next day, i.e., on 09-01-2011, the victim refused to eat her meal complaining of pain in her abdomen. Later in the evening when the mother, P.W.5, came to learn from Manju Biswakarma, P.W.1, a friend of the victim, that she had been raped by the Appellant, she lodged Complaint, Exhibit 3, in the Jorethang Police Station, resulting in registration of the criminal case against the Appellant. Consequential charge-sheet filed against him after the investigation culminated in his conviction and sentence impugned in the present Appeal.

Crl.A. No.23 of 2014

Ten Tshering Lepcha vs. State of Sikkim 3(i). During the arguments, Mr. Jorgay Namka, Learned Legal Aid Counsel, appearing on behalf of the Appellant, submitted with all fairness that he did not dispute the prosecution having established the factum of the Appellant having entered the house of the victim during the absence of her parents. His only contention was that the prosecution had failed to establish the offence of rape as the medical and other evidence produced by them did not support such a case.

(ii) It was further his contention that even the victim herself had not specifically stated anywhere that she had been raped by the Appellant or that she was ravished by him and, that the evidence of PWs 1, 2 and 5 are also not specific on that account. He would rely upon Tarkeshwar Sahu vs. State of Bihar (now Jharkhand) :

(2006) 8 SCC 560 to urge that the essential requirement to constitute an offence under Section 375 IPC is penetration which, as per him, has not been established in the case.

(iii) It was his further submission that from the facts and circumstances emerging from the evidence 5 Crl.A. No.23 of 2014 Ten Tshering Lepcha vs. State of Sikkim the Appellant at best can be held to be liable under Sections 376/511 IPC as there was no material to show that the Appellant was determined to have sexual intercourse at all events. Reliance on this was made to Koppula Venkat Rao vs. State of A.P. : (2004) 3 SCC 602.

(iv) Mr. Jorgay Namka would heavily rely upon the evidence of Dr. Solomit Lepcha, Medical Officer, Jorethang PHC, P.W.4 and Dr. Rebecca Lama, Gynecologist, District Hospital, Namchi, P.W.6 in support of his submission that their evidence does not at all support the case of "rape" as was being made out by the prosecution against the Appellant.

(v) Similarly, he would also refer to the CFSL report, Exhibit 26, in respect of the wearing apparels of the victim where it has been opined that no blood or semen could be detected on those.

(vi) Under these circumstances, it was submitted that the Appellant could not have been held guilty of the offence under Section 376 IPC and accordingly, prayed that the offence be altered to Sections 376/511 IPC.

Crl.A. No.23 of 2014

Ten Tshering Lepcha vs. State of Sikkim 4(i). Mr. Karma Thinlay Namgyal, Learned Additional Public Prosecutor, on the other hand, submitted that there was no error in the impugned judgment that called for interference. It was submitted that in her evidence, the victim, Arati Biswakarma, P.W.10, has unequivocally deposed that she had been sexually assaulted by the Appellant and that her evidence has been corroborated in full measure by PWs 1, 2, 3 and 5 in their evidence. The medical report, Exhibit 2 of the Gynecologist, P.W.6, corroborates their evidence when it has been opined by her that there was congestion (reddish) present around hymen. It was his submission that the evidence of PWs 1, 2 and 5 fully corroborated the evidence of the victim, P.W.10, in particular P.W.1, who had deposed that "she was walking slowly due to stomach pain due to the sexual assault as told by her".

(ii) The Learned Additional Public Prosecutor would stress upon the well-settled principle of law that if the evidence of a prosecutrix is found to be convincing, no corroboration is required and conviction can be held solely based on her evidence. Reference 7 Crl.A. No.23 of 2014 Ten Tshering Lepcha vs. State of Sikkim in this regard made to the case of Mohd. Imran Khan vs. State Government (NCT of Delhi) : (2011) 10 SCC 192.

(iii) Referring to Rajendra Datta Zarekar vs. State of Goa : (2007) 14 SCC 560, it was contended that to constitute the offence of rape it is not necessary that there should be a complete penetration and rupture of the hymen.

5. I have considered the rival submissions of the Learned Counsel for the parties, the evidence and the documents on record. Since it is admitted that the prosecution has been able to establish the Appellant having entered the house of the victim girl during the absence of her parents, we need not delay ourselves on this aspect. The only question that would require determination is as to whether offence under Section 376 IPC had indeed been committed by the Appellant. 6(i). On a careful examination of the evidence, I find that the prosecution has failed to establish beyond reasonable doubt that the Appellant had committed rape upon the victim. Although the Complaint, Exhibit 3, mentions "balatkar", it has remained only in words 8 Crl.A. No.23 of 2014 Ten Tshering Lepcha vs. State of Sikkim and the requisite ingredients necessary therefor have not been satisfied.

(ii) P.W.10, the victim, was 10 years of age at the time of the offence. In her statement, she has used the term "sexual assault" and not "sexual intercourse". Even in her statement recorded under Section 161 of the Code of Criminal Procedure, 1973, she has used the words "chaara gareyo". Section 375 IPC which defines "rape" requires that sexual intercourse should take place between a man and a woman under 6 (six) circumstances mentioned therein. None of such circumstance has been made out except that the Appellant had entered the house of the victim. PWs 1 and 2 have only been able to corroborate the evidence of the victim that the Appellant had entered her house in the absence of her parents.

(iii) Apart from these facts, the mother of the victim, P.W.5, is found to have deposed only to the extent that the victim did not take food as she complained of stomachache. Even the evidence of 9 Crl.A. No.23 of 2014 Ten Tshering Lepcha vs. State of Sikkim P.W.1 reveals that she was walking slowly due to stomach pain caused by the sexual assault "as told by her". What is crucial, therefore, is to ascertain what was told to them by the victim. Anything in addition to this would be embellishments. As already noted, all that she had said was that she was sexually assaulted by the Appellant after he had entered her house on 08- 11-2011.

(iv) Explanation to Section 375 IPC before its amendment provides that "penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape". Penetration has not at all been proved except for the finding of the Gynecologist, P.W.6 as well as the Medical Officer, P.W.4, of there being congestion around the hymen. When a child of 7 (seven) years is subjected to forceful intercourse, it is expected as a natural course that she would suffer severe injuries in and around her private parts. The evidence of Gynecologist, P.W.6, reveals that the congestion could be an injury caused by a blunt object or by infection due to lack of hygiene. There is no evidence at all to suggest that there was penetration or even partial 10 Crl.A. No.23 of 2014 Ten Tshering Lepcha vs. State of Sikkim penetration or even attempt at that in the present case.

(v) The evidence of Dr. T. W. Bhutia, P.W.7, Pathologist, further corrodes the case of the prosecution when his Cytopathology Report, Exhibit 8, on the swabs of the external genital and paraurethral area in respect of the victim showed "no motile or non motile spermatozoa found in all the sample examination".

(vi) The CFSL report, Exhibit 26, in respect of the wearing apparels of the victim also did not show presence of any blood or semen although there is evidence to the contrary in the oral evidence of P.W.5, P.W.8 and the I.O., P.W.15, referred to and relied upon by the Learned Additional Public Prosecutor. 7(i). The evidence alluded to thus far clearly reveals that the prosecution has not been successful in establishing the case of "rape" against the Appellant beyond reasonable doubt.

(ii) The offence of "rape" generally and, in particular against a minor, is heinous and 11 Crl.A. No.23 of 2014 Ten Tshering Lepcha vs. State of Sikkim condemnable. However, while dealing with such cases, Courts are bound by the law of evidence and cannot be overwhelmed by emotion.

8. Upon careful examination, I am of the considered view that it would be unsafe to hold the Appellant guilty of the offence under Section 375 IPC on the basis of such inadequate evidence.

9. The decisions cited at the bar by the Learned Additional Public Prosecutor re-emphasises the well- established principles of law which have been applied on the facts which are clearly distinguishable from the ones obtaining in the case at hand.

10. Having held so, the Appellant, however, would not be absolved completely. The admitted fact of the Appellant having entered the house of the victim considered along with her evidence and the evidence of PWs 1, 2 and 5 indubitably establishes the offence under Sections 448/354 IPC. This aspect which is the alternative submission placed on behalf of the State- Respondent appear to stand established. The Learned Additional Public Prosecutor has referred to Aman Kumar 12 Crl.A. No.23 of 2014 Ten Tshering Lepcha vs. State of Sikkim and Another vs. State of Haryana : (2004) 4 SCC 379 in support of this plea.

11. Upon consideration of the facts and circumstances, I am inclined to agree with the Learned Additional Public Prosecutor and hold that there is sufficient evidence to establish that the Appellant had outraged the modesty of the victim by trespassing into her house thereby committing the offence under Sections 448/354 IPC.

12. For the aforesaid reasons, the Appeal is allowed in part and the Appellant is held guilty under Sections 448/354 IPC and his conviction altered accordingly.

13. In the facts and circumstances, he is directed to undergo simple imprisonment of 1 (one) year and fine of ` 1,000/- (Rupees one thousand) for the offence under Section 448 IPC and the maximum sentence of 2 (two) years and fine of ` 3,000/- (Rupees three thousand) for the offence under Section 354 IPC. Failure to pay the fine shall entail further imprisonment 13 Crl.A. No.23 of 2014 Ten Tshering Lepcha vs. State of Sikkim of 6 (six) months and 1 (one) year respectively for both offences. The period of sentence undergone by the Appellant shall be remitted against the above sentences. In the event, the Appellant already undergone imprisonment for the period of the sentences, he shall be discharged forthwith.

14. No order as to costs.

15. A copy of this judgment and the original records be transmitted forthwith to the Court below for compliance.

Sd/-

( S. P. Wangdi ) Judge 27-07-2015 Approved for reporting : Yes Internet : Yes ds/to

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