Sikkim High Court
Bhim Bahadur Basnett vs State Of Sikkim on 6 December, 2023
Author: Meenakshi Madan Rai
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
DATED : 6th December, 2023
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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.03 of 2022
Appellant : Bhim Bahadur Basnett
versus
Respondent : State of Sikkim
Application under Section 374(2) of the
Code of Criminal Procedure, 1973
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Appearance
Mr. Jorgay Namka, Senior Advocate (Legal Aid Counsel) for the
Appellant.
Mr. Yadev Sharma, Additional Public Prosecutor with Mr. Sujan
Sunwar and Mr. Shakil Raj Karki, Assistant Public Prosecutor for
the State-Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The Prosecutrix/victim, P.W.2, in the instant matter, is a differently abled person being hearing and speech impaired. The Complaint, Exhibit 2, came to be lodged by P.W.3, the nephew of the victim, in whose house the offence allegedly took place on 21- 09-2020, of which the victim informed him and his wife, P.W.1. The Court of the Learned Judge (Fast Track), South & West, at Gyalshing, on careful analysis of the oral and documentary evidence adduced by the Prosecution and on appreciation of all facts and circumstances of the case was convinced that the Appellant had raped and sexually assaulted the disabled victim on the night of 21-09-2020, in the house of P.W.3. The Appellant was convicted for having raped a woman with physical disability, punishable under Section 376(2)(1) of the Indian Penal Code, 1860 (hereinafter, ―IPC‖), in S.T. (Fast Track) Case No.01 of 2021 (State Crl.A. No.03 of 2022 2 Bhim Bahadur Basnett vs. State of Sikkim of Sikkim vs. Bhim Bahadur Basnett). In consequence thereof, he was sentenced to undergo rigorous imprisonment for a term of fifteen years for commission of the offence and to pay a fine of ₹ 50,000/- (Rupees fifty thousand) only, in default of payment of fine to undergo simple imprisonment for one more year, setting off the period of detention already undergone by him, in terms of Section 428 of the Code of Criminal Procedure, 1973 (hereinafter, ―Cr.P.C.‖).
2. The Prosecution case is that on 21-09-2020 the victim had gone to Yangang Bazaar (South Sikkim), from where she set out for the house of her nephew P.W.3 and spent the night. During the evening, the Appellant, a co-villager, also came to the same house. On account of the persistent heavy rain, he too spent the night in the house of P.W.3. That, both the above persons were in two separate rooms in the main house of P.W.3, as P.W.3 and his family spent the night in a temporary room, near the cowshed. On the intervening night of 21-09-2020 and 22-09-2020, the Appellant entered the room of the victim and is alleged to have sexually assaulted her. The next morning when P.W.3 and his family went over to their main house at around 6 a.m., both the victim and the Appellant had already left the house. In the afternoon, however, the victim returned to the house of P.W.3 and informed his wife P.W.1 that the Appellant had raped her four times during the night. P.W.1 then informed her husband P.W.3 of what P.W.2 had expressed to her through gesticulations. P.W.3 for his part informed the neighbours and the Panchayat after which P.W.10 scribed the FIR, Exhibit 2, on which P.W.3 affixed his signature. On completion of investigation, P.W.11 who was the Investigating Crl.A. No.03 of 2022 3 Bhim Bahadur Basnett vs. State of Sikkim Officer of the case found that a prima facie offence under Section 376 of the IPC was made out against the Appellant and Charge- Sheet was submitted accordingly. Charge was framed under Section 376(2)(1) of the IPC against the Appellant by the Learned Trial Court. On the plea of ―not guilty‖ by the Appellant, the Prosecution embarked on an examination of eleven Prosecution witnesses. The Learned Trial Court concluded that the Prosecution had proved its case and pronounced the impugned Judgment and Order on Sentence, both dated 31-12-2021.
3. Aggrieved thereof, Learned Senior Counsel for the Appellant contended before this Court that the allegation made by the victim against the Appellant is not borne out by medical or forensic evidence. That, the Appellant was aged approximately 32 years at the time of offence, whereas the victim was 52 years and claims to have been raped four times during the night as narrated to P.W.1. Exhibit 4 is the medical report of the victim, according to which, the victim was examined on 23-09-2020 at 03.40 p.m., the offence having allegedly taken place on the intervening night of 21- 09-2020 and 22-09-2020. That, no physical indication of such violation were found on her person including her private parts. The Medical Officer, P.W.9, after examining the victim categorically opined that there was no vaginal tear, no swelling, no ecchymosis neither was there any tenderness in the area. The vaginal swabs both internal and external of the victim, collected by P.W.9, were examined at the Regional Forensic Science Laboratory (RFSL). That, neither the undergarments of the victim and the accused forwarded to the RFSL contained any body fluids nor did the penile swabs of the Appellant and the vaginal swabs of the victim point to Crl.A. No.03 of 2022 4 Bhim Bahadur Basnett vs. State of Sikkim any offence. The medical report of the Appellant failed to lend credence to the Prosecution case as no injuries were detected on any part of his body, including his private parts. The Prosecution exhibited the RFSL report as Exhibit 9 but failed to enumerate reasons as to why the Junior Scientific Officer of the RFSL who conducted the forensic tests was not examined as a witness. This clearly indicates that the Prosecution evidence did not support the allegation made by the victim against the Appellant. That, the victim was examined as P.W.2 during the trial and the records reveal that the Oath was administered on the victim with the help of the Special Educator and P.W.1 the victim's relative who was allegedly familiar with the communications made by the victim. That, the Learned Trial Court however failed to appreciate that the victim did not live with P.W.1 but with P.W.6 her sister and therefore there was no explanation as to how P.W.1 or the Special Educator were familiar with the gesticulations and communication made by the victim. That, no assistance was obtained from P.W.6 during trial, who would have been better circumstanced to explain the communications made by P.W.2. That, P.W.6 has also not revealed in her evidence that the victim had complained to her at any point in time that the Appellant had raped her. In fact, according to P.W.6, after P.W.2 returned home the area Panchayat came to her house and informed her, i.e., P.W.6, that her sister had been raped by the Appellant, in the house of P.W.3 and took P.W.2 along with her. The cross-examination of P.W.6 reveals that the Prosecution failed to record the correct name of the victim. It was next emphasised that the Learned Trial Court also failed to take into consideration Section 119 of the Indian Evidence Act, Crl.A. No.03 of 2022 5 Bhim Bahadur Basnett vs. State of Sikkim 1872 (hereinafter, ―Evidence Act‖) while recording the evidence of P.W.2 as the proceedings were not videographed. That, the Section 313 Cr.P.C. statement of the Appellant is indicative of the fact that he was framed in the offence as his elder brother was complicit in getting P.W.10 arrested in another case. That, in light of the arguments advanced it is apparent that the evidence on record fails to establish the Prosecution case. Relying on the decision of this Court in Dal Bahadur Darjee vs. State of Sikkim1 and Dawagyal Lepcha vs. State of Sikkim2 it was urged that the legal principles emphasised therein under Section 118 and Section 119 of the Indian Evidence Act have not been followed by the Learned Trial Court. That, as the Prosecution has failed to prove its case beyond reasonable doubt, the Appellant be acquitted of the offence charged with.
4. Learned Additional Public Prosecutor, while fairly conceding that the medical report Exhibit 4 and the RFSL report, Exhibit 9 do not support the Prosecution case, argued that it is not always necessary for injuries to be found on the victim of sexual assault to establish the commission of the offence. That, the victim assisted by the Special Educator and P.W.1 her relative have unerringly made out a case of rape against the Appellant. P.W.2 has by her gestures before the Court and to the Prosecution witnesses indicated how the sexual offence was committed on her by the Appellant. That, P.W.1 to whom the incident of rape was first narrated by P.W.2 has supported the victim's narrative as also P.Ws 4, 5, 7 and 8. That, the Judgment of the Learned Trial Court in the said circumstances warrants no interference. 1 2019 SCC OnLine Sikk 122 2 2023 SCC OnLine Sikk 93 Crl.A. No.03 of 2022 6 Bhim Bahadur Basnett vs. State of Sikkim
5. Having considered the submissions of Learned Counsel for the parties, in the first instance, it would be apposite to examine the evidence on record. P.W.1 stated that the victim and the Appellant spent the night in different rooms in the house of the witness, while she and her family slept in a temporary room made next to their cowshed apprehending landslides near their main house as it was monsoon season. The next morning when she returned to her home she found that both P.W.2 and the Appellant had already left their rooms. Later, the victim returned and through gestures enacted the offence of rape committed on her by the Appellant. P.W.1 then woke up her husband and the victim once again repeated to him through gestures the sexual assault perpetrated on her by the Appellant as she had shown to P.W.3 earlier.
(i) P.W.2, the victim is said to have given evidence in the Court with the help of the Special Educator and P.W.1. Pertinently, the Special Educator was not examined separately by the Court to verify her educational qualifications as no documentary evidence in proof thereof was furnished. Before commencing the evidence of P.W.2 the Learned Trial Court recorded as follows;
"............................................................................ (As the victim has a speech impediment, for the purposes of clarity, her statement is recorded with the assistance of Ms. Almaya Subba, Special Educator, Social Justice & Welfare Department and as well as PW-1 family member of the victim who is familiar with communication of the victim. Evidence of the victim accordingly recorded under Section 119 of the Indian Evidence Act, 1872).
..............................................................................."
All that can be culled out from the afore-extracted sentences is that the person named therein is a ―Special Educator‖. No Oath was administered to her. While the Learned Trial Court noted that Crl.A. No.03 of 2022 7 Bhim Bahadur Basnett vs. State of Sikkim P.W.1 the family member of the victim was familiar with the gestures of the victim, the records reveal that in fact P.W.6 is the victim's sister with whom she was living, but scant attention was paid to this fact by the Prosecution or the Learned Trial Court. Relevantly, it is noticed that the Learned Trial Court in its Order dated 12-04-2021 recorded that "Ld. Addl. P.P. submits that since the victim is unable to speak and hear, she prays that summons also be issued to PW6, the relative of the victim who is familiar with communicating with the victim.". However, on 30-06-2021 contrary to the above observation, the Learned Trial Court went on to record in its Order that "Victim examined with the help of Ms. Almaya Subba, Special Educator who is also present in the Court and the examination also video (sic) under Section 119, Indian Evidence Act, 1872." with no reference to P.W.1 to reveal her presence, although in the evidence of P.W.2 it is recorded that the assistance of both Special Educator and P.W.1 were taken. Incongruously enough, P.W.1 appears to have responded to a question put to the victim and the Court has recorded her response, without clarifying the provision of law under which such a step was adopted or permitted. P.W.1 was to assist but not to respond independently on behalf of the victim. Two aspects emerge from the above extracted portions of the proceedings in the Learned Trial Court, the first being that the assistance of P.W.6 was not availed of by the victim or by the Court when P.W.2 deposed before the Court, which was alive to the fact that P.W.6 was familiar with communicating with the victim having been apprised of it by the Learned Additional Public Prosecutor. The second aspect is that although the Learned Trial Court has Crl.A. No.03 of 2022 8 Bhim Bahadur Basnett vs. State of Sikkim recorded that the examination was also videographed no such videography has been placed before this Court during the hearing of the Appeal. In fact, the impugned Judgment of the Learned Trial Court also makes no reference to such videography.
(ii) The Learned Trial Court has recorded that the evidence of the victim is recorded under Section 119 of the Indian Evidence Act, 1872, as already seen (supra). True, Section 119 of the Evidence Act is invoked for a witness who is unable to communicate verbally. The provision lays down that a witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs. The Proviso which is an indispensible appendage of the Section lays down without ambiguity that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a Special Educator in recording the statement and such statement shall be ―videographed‖. The Court has purportedly taken the assistance of P.W.1 and the Special Educator, but the statement of the victim has not been videographed. This Court in Dawagyal Lepcha (supra) has held that not only is Section 119 of the Evidence Act important while recording the evidence of a disabled person, the provision of Section 118 of the Evidence Act is also to be taken into consideration being of equal importance. It is incumbent upon the Learned Trial Court to examine the competence of a witness who suffers from physical disability to testify, in terms of Section 118 of the Evidence Act to gauge whether the witness in this case, the victim, P.W.2 was prevented from understanding the questions put to her or from giving rational answers to those questions on Crl.A. No.03 of 2022 9 Bhim Bahadur Basnett vs. State of Sikkim account of her disabilities. Such examination of the victim and the responses extracted from her could either inspire the confidence of the Court with regard to her ability to depose by assessing her abilities of comprehension or to disregard the evidence on grounds of being unreliable, incomprehensible and unconvincing. In Dawagyal Lepcha (supra) this Court had referred to State of 3 Rajasthan vs. Darshan Singh alias Darshan Lal where the Supreme Court while considering the provision of Section 119 of the Evidence Act inter alia held as follows;
"18. ........................................ When a deaf and dumb person is examined in the court, the court has to exercise due caution and take care to ascertain before he is examined that he possesses the requisite amount of intelligence and that he understands the nature of an oath. On being satisfied on this, the witness may be administered oath by appropriate means and that also be with the assistance of an interpreter. However, in case a person can read and write, it is most desirable to adopt that method being more satisfactory than any sign language. The law required that there must be a record of signs and not the interpretation of signs.
..............................................................
21. To sum up, a deaf and dumb person is a competent witness. If in the opinion of the Court, oath can be administered to him/her, it should be so done. Such a witness, if able to read and write, it is desirable to record his statement giving him questions in writing and seeking answers in writing. In case the witness is not able to read and write, his statement can be recorded in sign language with the aid of interpreter, if found necessary. In case the interpreter is provided, he should be a person of the same surrounding but should not have any interest in the case and he should be administered oath."
[emphasis supplied]
(iii) The Learned Trial Court has failed to ascertain whether the victim possessed the requisite amount of intelligence or that she understood the nature of the Oath. On this facet, the victim was admittedly a ‗laati', i.e., a person who is said to be suffering from speech impairment mostly but may also be suffering from intellectual impairment. Appositely in this context, we may refer to 3 AIR 2012 SC 1973 Crl.A. No.03 of 2022 10 Bhim Bahadur Basnett vs. State of Sikkim Section 2(s) of the Rights of Persons with Disabilities Act, 2016, which provides as follows;
―2. Definitions.--In this Act, unless the context otherwise requires,--
.......................................................................................
(s) "person with disability‖ means a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others;"
[emphasis supplied]
(iv) The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999, defines persons with disability as follows;
"2. Definitions.--In this Act, unless the context otherwise requires,--
...........................................................................
(j) "persons with disability‖ means a person suffering from any of the conditions relating to autism, cerebral palsy, mental retardation or a combination of any two or more of such conditions and includes a person suffering from severe multiple disability;‖
(v) In this context, the Learned Trial Court while recording the evidence of the Prosecutrix has noticed that the victim has a speech impediment and was communicating through gestures. No disability card issued by the concerned authority was relied on by the Prosecution. When the evidence of P.W.7 was recorded she referred to the victim as a ‗laati' (speech impaired). P.W.8 also described the victim as having speech impairment, in other words ‗laati'. The I.O. in his cross-examination stated that "It is not a fact that my investigation did not reveal that the victim is hearing and speech impaired since birth ...............". Her disabilities undoubtedly hinder her effective participation, but in the absence of examination of the witness in terms of Section 118 of the Crl.A. No.03 of 2022 11 Bhim Bahadur Basnett vs. State of Sikkim Evidence Act it is not clear whether the victim suffered from physical disability only or also from mental disability.
(vi) Reverting to the question of Oath administered to the victim before recording her evidence, the Court has recorded as follows;
"OATH ADMINISTERED (with the help of the Special Educator and PW-1, (victim's relative) who is familiar with communicating with the victim, kasam/oath administered on the victim to tell the truth).‖ The Court below did not record that the victim understood what was communicated to her and that she was capable of understanding the meaning of oath and that she was to deliver the truth. This is where the importance of Section 118 of the Evidence Act kicks into place and ought to have been given due weightage by the Learned Trial Court. The Learned Trial Court has also not recorded its findings as to how the Special Educator was familiar with the words and gestures of the victim as the Special Educator herself has admitted on a question put to her during the cross-
examination of the ―victim‖, that she had not met the victim before and the day of the victim's evidence was the first time that she had met her. So far as the question of interpreter, Special Educator or person familiar with the manner of communication with the victim is concerned, it has to be borne in mind that the victim is from a rural background and her evidence reveals that she is uneducated.
In such circumstances, a Special Educator in the first instance would be incompetent to translate her gesticulations as the victim was never formally educated in the sign language. It is only in cases where the victims have been educated in the sign language Crl.A. No.03 of 2022 12 Bhim Bahadur Basnett vs. State of Sikkim that the assistance of Special Educator would be of any assistance to the Court in interpreting the gesticulations.
(vii) The above shortcomings having been noticed and pointed out, it is relevant to also reiterate that the cardinal principle of criminal jurisprudence is that the burden rests on the Prosecution to establish its case against the accused beyond reasonable doubt. It cannot benefit from the weakness of the defence case. This is being stated for the purpose that so far as the offence of rape is concerned, we are unable to convince ourselves on the basis of evidence furnished that the act of sexual assault by way of penetration occurred, this is for the reason that both the persons involved in the incident have no physical indication whatsoever of any sexual intercourse as borne out by the evidence in Exhibit 4, Exhibit 5 and Exhibit 9. Exhibit 4 is the medical report of the victim, identified by P.W.9, the Medical Officer who examined the victim and inter alia indicates as follows;
Head to toe examination
- no sign of defence seen
- no cuts, bruise, scratches or abrasion seen
- no blood stains seen L/E
- no vaginal tear
- no swelling
- no ecchymosis
- no tenderness UTP -ve Exhibit 5 is the medical examination report of the Appellant also identified by P.W.9 which inter alia is as follows;
Head to toe examination
- superficial graze abrasion over left cheek,
- 2 cm x 1 cm with swelling
- no other significant injuries observed.
L/E
- Smegma Absent size - 8.5 cm no trauma or injury around the penis.
Crl.A. No.03 of 2022 13
Bhim Bahadur Basnett vs. State of Sikkim
(viii) The Learned Trial Court was impressed by the fact that the medical report of the Appellant indicated a ―graze abrasion‖ on the cheek of the Appellant. The Learned Trial Court failed to appreciate that the victim made no claims of having assaulted him on the cheek neither is it the Prosecution case that the injury was sustained by him during the alleged sexual assault.
(ix) This Court is indeed alive to the decision of the Hon'ble Supreme Court in Krishan vs. State of Haryana4 where it was held that it is not expected that every rape victim should have injuries on her body to prove her case. In this context, in State of Rajasthan vs. N. K. The Accused5 also the Supreme Court held inter alia that;
"18. ................................ The absence of visible marks of injuries on the person of the prosecutrix on the date of her medical examination would not necessarily mean that she had not suffered any injuries or that she had offered no resistance at the time of commission of the crime. Absence of injuries on the person of the prosecutrix is not necessarily an evidence of falsity of the allegation or an evidence of consent on the part of the prosecutrix. It will all depend on the facts and circumstances of each case. ......................."
(x) That having been said, in Karnel Singh vs. State of M.P.6 the Supreme Court had observed that in the event of any lapses on the part of the Investigating Agency or the Prosecution, the victim of such serious offences ought not to suffer since bad investigation is no ground for acquittal. The Learned Trial Court relied on the ratio however by extracting only the afore-mentioned sentences from the Judgment, thereby shearing it of its intrinsic interpretation. In fact, the Supreme Court held therein that;
"8. ...................................................... ................................. The find (sic) of semen stains on the petticoat and in the vagina lend assurance to the 4 (2014) 13 SCC 574 5 (2000) 5 SCC 30 6 (1995) 5 SCC 518 Crl.A. No.03 of 2022 14 Bhim Bahadur Basnett vs. State of Sikkim story narrated by the prosecutrix. The submission that there was delay in lodging the complaint has to be stated to be rejected for the simple reason that immediately after the incident she had to go in search of her husband who was a rickshaw-puller, narrate to him the incident, go down to the police station and then lodge the complaint. .................................."
The Learned Trial Court thus failed to appreciate that in the case of Karnel Singh (supra) the Prosecution despite finding semen stains on the petticoat as well as in the vagina of the victim had failed to take this into consideration during the investigation. In Paragraph 4 of the said Judgment Karnel Singh (ibid), it was observed as follows;
"4. We have very carefully scrutinized the evidence having regard to the fact that (PW 6) the investigating officer had not taken the care expected of him. He did not record the statements of the two witnesses nor did he refer to the attachment of the ‗chaddi' in his oral evidence. That was a very vital piece of evidence to which little or no attention was paid. If the seizure of that article was properly proved, the article with semen stains would have lent strong corroboration to the evidence of the prosecutrix. There is no doubt that the investigation was casual and defective. But despite these deficiencies both the courts below have recorded a conviction. The question is : are they right?"
The Supreme Court went on to observe that "Any investigating officer, in fairness to the prosecutrix as well as the accused, would have recorded the statements of the two witnesses and would have drawn up a proper seizure-memo in regard to the 'chaddi'. That is the reason why we have said that the investigation was slipshod and defective.".
(xi) In the case at hand, we find that indeed the I.O. has not only neglected during investigation to examine the details of whether the victim was only physically disabled or also mentally disabled, as having lesser ability of comprehension, but has also presented the Special Educator before the Court to assist P.W.2 when she had had no previous interaction with the victim and was Crl.A. No.03 of 2022 15 Bhim Bahadur Basnett vs. State of Sikkim literally a stranger to the gestures and language employed by the victim. In State of Maharashtra vs. Chandraprakash Kewalchand Jain7 the Supreme Court has held that no corroboration is required for the evidence of a Prosecutrix with the caveat that it should inspire the confidence of the Court to enable it to reach the finding that the Prosecution has proved its case beyond all reasonable doubt as is the standard set for proof of a criminal case.
(xii) The medical evidence Exhibit 4 and Exhibit 5 or the forensic analysis Exhibit 9, indicate that there was no body fluids on the undergarments of the victim and the Appellant nor were there any incriminating fluids in the external and internal vaginal swab of the victim and the penile swab of the Appellant. No medication appears to have been prescribed to the victim in Exhibit 4 contrary to the claim of the victim in her response to question number 6 of her evidence. The Appellant is alleged to have raped her four times during the intervening night of 21-09-2020 and 22- 09-2020, she was medically examined immediately on 23-09-2020, in our considered opinion, there ought to have been some physical indication of the assault. We are constrained to observe that the Court is to do justice both to the Prosecutrix and to the Appellant. Merely because the Appellant has been accused of an offence and Charge-Sheet filed against him it does not tantamount to proof of the case against him, unless it meets the high bar of proof set for a criminal case.
6. In such circumstances and for reasons already enumerated (supra), we conclude that the Prosecution has failed to establish its case under Section 376(2)(1) of the IPC. 7 (1990) 1 SCC 550 Crl.A. No.03 of 2022 16 Bhim Bahadur Basnett vs. State of Sikkim
7. However, an offence under Section 354A(1)(i) of the IPC, i.e., physical contact and advances involving unwelcome and explicit sexual overtures has been proved by the evidence of P.W.2.
8. The Appellant is accordingly acquitted of the offence under Section 376(2)(1) of the IPC.
9. The Appellant however stands convicted of the offence under Section 354A(1)(i) of the IPC.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
06-12-2023 06-12-2023
Approved for reporting : Yes
ds