Akbar Ali vs State Of Sikkim on 15 November, 2016

[Cites 31, Cited by 0]

Sikkim High Court

Akbar Ali vs State Of Sikkim on 15 November, 2016

1. Assailing the Judgment dated 27-06-2013 and Order on Sentence dated 29-06-2013, of the Fast Track Court, East Sikkim, at Gangtok, in Sessions Trial (F.T.) Case No.31 of 2013, by which the Appellant was sentenced to imprisonment of seven years and to pay a fine of Rs.1,000/- (Rupees one thousand) Crl.A.No.03 of 2016 2 Akbar Ali @ Md. Sentu vs. State of Sikkim only, with a default stipulation, under Section 376 of the Indian Penal Code, 1860 (in short "IPC"), the instant Appeal has been preferred.

2. The grounds canvassed by Learned Counsel for the Appellant were that, the Appellant was not known to the victim, P.W.8 or her cousin, P.W.2, at the time of the alleged offence, but no Test Identification Parade (in short "T. I. Parade") was conducted to confirm his identification, whereas they identified him in the Court for the first time, thereby making his identification doubtful. To fortify this submission, reliance was placed on Karan and Others vs. State of Kerala1, Rajesh Govind Jagesha vs. State of Maharashtra2 as also Dana Yadav alias Dahu and Others vs. State of Bihar3 and Dandu Jaggaraju vs. State of Andhra Pradesh4.

3. That, no cogent proof was furnished to establish that the Appellant had ever visited Sikkim prior to his arrest by the Police at Islampur, West Bengal. That, the Appellant had allegedly fled after the incident and was said to have been found in Dohapara, West Bengal, almost one year after the incident, after P.W.14, the Investigating Officer (in short "I.O.") of the case, was informed by the SHO, Panjipara, who incidentally was not examined in proof thereof. That, the I.O. allegedly brought the Appellant to Sikkim from West Bengal under Transit Remand, but no document has been furnished to substantiate this point. The I.O. also failed to produce the Contractor said to have employed

1. (1979) 3 SCC 319 2. (1999) 8 SCC 428

3. (2002) 7 SCC 295 4. (2011) 14 SCC 674 Crl.A.No.03 of 2016 3 Akbar Ali @ Md. Sentu vs. State of Sikkim the Appellant and the other labourers who were executing the works at Pakyong at the relevant time, no reasons being furnished for their non-production thus withholding material evidence, for which reliance was placed on State of Gujarat vs. Kishanbhai and Others5 and Tomaso Bruno and Another vs. State of Uttar Pradesh6. That, as per the I.O., the Appellant was using a mobile phone bearing SIM No.9932737928, which on investigation was found to be of one Mrs. Manju Karmakar of Purulia, West Bengal, therefore, could not be connected to the Appellant. That, the alleged incident occurred on 11-02-2011, but the statement of the victim under Section 164 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") was recorded by the Judicial Magistrate on 30-01-2012, almost a year after the incident raising questions on such delay. The clothes of the victim which included inner vest with blood stains and sickle seized by the I.O. along with vaginal wash of the victim and the blood sample of the Appellant, collected on his arrest on 07-01-2012, were forwarded to the CFSL on the same day, which means the seizures made from the victim remained with the I.O. for one year, no explanation was furnished for the delay. The results of the blood sample collected for DNA profiling and the vaginal wash were not produced before the Learned Trial Court to connect the Appellant to the alleged crime.

4. That, inconsistencies are apparent in the statement of the victim under Section 164 of the Cr.P.C. and that recorded before the Trial Court where she has tried to improve her

5. (2014) 5 SCC 108 6. (2015) 7 SCC 178 Crl.A.No.03 of 2016 4 Akbar Ali @ Md. Sentu vs. State of Sikkim statement recorded under Section 164 of the Cr.P.C. therefore, her statements being inconsistent are unreliable. Reliance on this aspect was placed on Radhey Shyam vs. State of Rajasthan7, State of Rajasthan vs. Chandgi Ram and Others8, K. Venkateshwarlu vs. State of Andhra Pradesh9 and Thimmareddy and Others vs. State of Karnataka10. That, P.W.3 and P.W.8 have deposed that blood was coming out from the mouth of P.W.8, but P.W.11 the Doctor who examined the victim could find no such injury. That, the Learned Trial Court had also reached a finding that the Appellant had established his guilt by absconding, but the Hon'ble Apex Court has held a view contrary in Sujit Biswas vs. State of Assam11 in such circumstances. That, suspicion however, strong cannot take the place of evidence, on which aspect reliance was placed on Vijay Thakur vs. State of Himachal Pradesh12. The FIR is based on hearsay by P.W.1 on the narration of the mother of the victim who the Prosecution omitted to examine, hence, the veracity of the FIR was not established, besides, according to the victim she had narrated the incident to her mother. The M.O.'s owned by the victim were not shown to her for identification in the Learned Trial Court, but were identified by the Prosecution witnesses, hence the evidence of the victim does not inspire confidence. Learned Counsel for the Appellant has walked this Court carefully through the evidence of P.Ws 1, 3, 4, 6, 7, 11 and 14 and submits that their statements are not cogent and consistent, neither do they support the Prosecution case to prove doubt and hence, the

7. (2014) 5 SCC 389

8. (2014) 14 SCC 596

9. (2012) 8 SCC 73

10. (2014) 13 SCC 408

11. (2013) 12 SCC 406

12. (2014) 14 SCC 609 Crl.A.No.03 of 2016 5 Akbar Ali @ Md. Sentu vs. State of Sikkim impugned Judgment and Order on Sentence be set aside and the Appellant be acquitted.

5. Per contra, the arguments put forth by Learned Additional Public Prosecutor were that discrepancies in the statement of the victim and non-production of CFSL Report or non-holding of T. I. Parade does not adversely affect the Prosecution case as the victim has identified the Appellant. To buttress this submission, reliance was placed on Vijay alias Chinee vs. State of Madhya Pradesh13. Moreover, the offence was committed in broad daylight when the Appellant's face was visible enabling the victim to easily identify him, in such a circumstance, there infact is no necessity of holding a T.I. Parade. Support was drawn from Dastagir Sab and Another vs. State of Karnataka14. That, there may be embellishments in the evidence of the witnesses which however are a result of the lapse of time between the incident and the recording of evidence, which nevertheless does not detract from the fact that the incident had indeed occurred as evident from the deposition of P.W.8. The Hon'ble Apex Court has held that inconsistencies in the evidence of the Prosecution witnesses should not throw out the Prosecution case for which reliance was placed on State of Uttar Pradesh vs. Krishna Master and Others15. That, the Court also ought to take into consideration the level of understanding of the Prosecution witnesses when they depose before the Court. Reliance on this count was placed on State of H. P. vs. Shree Kant Shekari16. That, the absconsion of the

13. (2010) 8 SCC 191

14. (2004) 3 SCC 106

15. (2010) 12 SCC 324

16. (2004) 8 SCC 153 Crl.A.No.03 of 2016 6 Akbar Ali @ Md. Sentu vs. State of Sikkim Appellant would establish his guilt for which reliance was placed on Mritunjoy Biswas vs. Pranab alias Kuti Biswas and Another17. That, merely recording a statement under Section 164 of the Cr.P.C. does not mean that the evidence before the Court is to be discarded since evidence under Section 164 of the Cr.P.C. is not substantive evidence. Also one witness whose name did not appear in the list of witnesses furnished by the Prosecution was examined but it did not prejudice the Appellant, for which support was drawn from the decision of Ashok Debbarama alias Achak Debbarma vs. State of Tripura18. Pointing out to the examination of the Appellant under Section 313 of the Cr.P.C., it was argued that in response to Question Nos.6, 7 and 8 which required him to state as to whether he was at the place of occurrence and whether the victim was there, as also her brother, to whom he handed over Rs.2/- (Rupees two) only, to buy a cigarette. That, on his return the boy saw the Appellant running into the jungle, he responded with the answer "I do not know" indicating that he has made a total denial of the case, which points to his guilt. Admittedly, there are shortcomings in the investigation, but the Court should consider the evidence which supports the Prosecution case and since it is an offence under Section 376 of the IPC, due consideration be extended to the victim's statement and the Judgment of the Learned Trial Court be upheld and the Appeal dismissed.

6. I have heard the rival submissions of Learned Counsel at length and given anxious consideration to the same. I have

17. (2013) 12 SCC 796 18. (2014) 4 SCC 747 Crl.A.No.03 of 2016 7 Akbar Ali @ Md. Sentu vs. State of Sikkim also carefully perused the documents and evidence on record as also the citations made at the Bar and the relevant provisions of Law.

7. What falls for consideration before this Court is whether the Learned Trial Court erred in reaching a finding that the Appellant was guilty of the offence under Section 376 of the IPC?

8. In order to reach this finding, we may briefly adumbrate the facts of the case. As per the Prosecution, on 11- 02-2011, at 1500 hours, the Pakyong Police Station received an FIR from P.W.1, the father of the victim, alleging therein that his 11 year old minor daughter P.W.8, had been sexually assaulted on the same day at around 1400 hours, by an unknown Islampuri labourer working at Namcheybong school, when she had gone to collect fodder in the jungle. Pakyong P.S. Case was duly registered under Section 376 of the IPC against an unknown person and the matter taken up for investigation. It transpired that P.W.8 aged about 11 years, studying in Class V accompanied by her cousin P.W.2 aged about 6 years, on the relevant day had gone to collect grass in the nearby field, after school. An unknown Islampuri employed as a casual labourer at a Secondary School, appeared at the spot. He then sent P.W.2 to buy a cigarette and once the victim was alone he forcibly caught hold of her, put his fingers inside her mouth to prevent her from raising a cry, cut her track pant with a sickle and subjected her to forceful sexual intercourse, as evident from the blood stained Crl.A.No.03 of 2016 8 Akbar Ali @ Md. Sentu vs. State of Sikkim undergarment, inner vest and track pant of the victim, and thereafter fled to an unknown destination. The victim reached the house of her grandfather and informed him of the incident upon which the local villagers attempted to trace the absconding Appellant, in vain, efforts by the Police were also fruitless. On 05- 01-2012 credible information was received from O/C Panjipara Out-Post, West Bengal, to the effect that the Appellant was in their custody. Upon issuance of NBWA by the Learned Judicial Magistrate, East Sikkim, at Gangtok, on 05-01-2012, he was brought to Pakyong P.S. and arrested on 07-01-2012. On thorough interrogation, he confessed to the crime and his absconsion to Siliguri. His blood sample was collected in the presence of independent witnesses and all material exhibits including his blood sample and the vaginal vulval wash of the victim were forwarded to the CFSL, Kolkata. On 16-01-2012, the Chief Judicial Magistrate, East and North Sikkim, at Gangtok, issued an Order directing that the Appellant be produced before the Court in Islampur, on an application filed by P.W.14, with regard to his involvement in Goalpokher P.S. Case under Section 363/366A IPC. On completion of investigation, Charge-Sheet was submitted against the Appellant under Section 376 of the IPC.

9. The Learned Trial Court framed Charge under Section 376 of the IPC against the Appellant. To prove its case beyond a reasonable doubt, the Prosecution examined fourteen witnesses including the I.O. On due consideration of the evidence on record, the Court reached a finding that the Appellant was guilty of the Crl.A.No.03 of 2016 9 Akbar Ali @ Md. Sentu vs. State of Sikkim offence under Section 376 of the IPC, convicted and sentenced him as detailed hereinabove.

10. It would be essential firstly to consider the evidence of the victim P.W.8 and assess whether her evidence was cogent and consistent to satisfy the parameters set by law and the conscience of the Court. According to her, the incident took place, at around 12.30 p.m., on 11-02-2011. That, when she was playing with her friends at school, the Appellant asked her to hand over the T. T. Ball to him which was next to her. Thereafter, she and her cousin P.W.2 left for their respective homes, but as her parents directed them to collect fodder both of them went to the nearby jungle. After sometime the Appellant came to the place where they were cutting grass and told P.W.2 to go and buy a cigarette for him while offering to cut the grass for him. P.W.2 then left the place on his errand during which time the Appellant told her to check his mobile phone, which he alleged was not functioning. She did not accede to his request upon which the Appellant pulled her hand and forced her to lie on the ground, cut the right side of her trousers with the help of the sickle which he had snatched from her undressed her also removed his clothes, laid her on the ground and raped her. She screamed when the Appellant committed the offence, but he inserted his hand inside her mouth to stop her from screaming. During the incident blood stains were seen on her vest, blood was coming out from her mouth due to the insertion of the Appellant's hand and also her vagina. When P.W.2 returned from his errand the Appellant fled Crl.A.No.03 of 2016 10 Akbar Ali @ Md. Sentu vs. State of Sikkim from the place. She then returned home without the collected fodder. When she reached her grandparent's house she saw that they were at a nearby field. Her uncle called her father and took her to Pakyong Police Station after which she was taken to Pakyong PHC and to the STNM Hospital where she was examined by the Doctor. While discussing the evidence of this witness Learned Counsel for the Appellant contended that under cross- examination she has deposed that the Appellant had inserted his finger into her mouth, cut her trousers and undressed her, but he did not insert his genital into hers, thereby establishing that she is not a reliable witness. However, placing reliance on Vijay alias Chinee13 (supra) it was argued by Learned Additional Public Prosecutor that some omissions, contradictions and discrepancies in the case should not result in the entire evidence being discarded.

11. On perusing Section 164 of the Cr.P.C. statement of the victim, she has ofcourse stated that the Appellant forced her to the ground, but omitted mentioning the sexual assault, nevertheless the fact of sexual assault has been stated in her substantive evidence before the Court on oath and borne out as truth by the evidence of P.W.11, the Doctor who examined her after the incident, the same evening. The Hon'ble Apex Court in Vijay alias Chinee13 (supra) has held that--

"23. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and shifting the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the Crl.A.No.03 of 2016 11 Akbar Ali @ Md. Sentu vs. State of Sikkim accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses (vide Sohrab v. State of M.P. [(1972) 3 SCC 751], Bharwada Bhoginbhai Hirjibhai v. State of Gujarat [(1983) 3 SCC 217], Prithu v. State of H.P. [(2009) 11 SCC 588] and State of U.P. v. Santosh Kumar [(2009) 9 SCC 626]."

This observation holds good for facts and circumstances of this case as well.

12. That, having been said, we may consider the evidence of P.W.2 the child, who was with the victim, P.W.8. His evidence clearly corroborates that of P.W.8. On a joint reading of the evidence of the above witnesses, it is evident that the Appellant reached the spot where both of them were and after sending off P.W.2, physically and sexually assaulted P.W.8.

13. The evidence of P.W.6, a Contractor, reveals that, the contract work for construction of Namcheybong Senior Secondary School was awarded to the Educated Unemployed Youth Cooperative Society of which he was a Member, and he was present on the work site on 10-02-2011 and 11-02-2011. On the latter date, he saw the Appellant at the work site. At around 12 noon to 1 p.m., he received a call from the uncle of the victim stating that the Appellant had fled away from Namcheybong after raping his niece. The evidence of P.W.6 to the effect that the Appellant was working at the construction site since 10-02-2011 is supported by the evidence of P.W.7 also a Member of the same Society. He was also informed by the uncle of the victim that the Appellant had raped the victim.

Crl.A.No.03 of 2016 12

Akbar Ali @ Md. Sentu vs. State of Sikkim

14. The fact of sexual assault gains corroboration from the evidence of P.W.11 Dr. Parasmani Karki who examined the victim on the date of the incident at 6.22 p.m. where she was brought by the I.O. P.W.14 PI Mahendra Subba. Notice has to be taken of the fact that the incident took place around 2 p.m. was reported to the P.S. around 3 p.m. and the child examined at 6.22 p.m. in Gangtok which is some distance from Pakyong. The child has remained escorted by her father during this period. According to this witness, the victim gave him a history of having gone to collect grass with her brother to the jungle where she was sexually assaulted by a labourer who sent her brother to buy cigarettes. The witness deposed that --

"..........................................................

On examination, all vitals were within normal limit and in general examination, no abnormality was detected. On examination of neck, there were abrasions 4 in numbers on anterior side of the neck. On examination of breast-tanner stage 1, axillary hair also tanner stage 1, public hair was absent, on examination of the private part-blood stain over inner side of both the thighs were present.

On examination of vagina, there was tear on the posterior fourchette (vagina), there was mild bleeding and clots. Hymen was found to be torned (sic) which was fresh and admits index finger and tender. Vaginal and vulval wash was taken and sent for spermatozoa test to Pathology. Undergarment of the victim and other vaginal and vulval fluid wash was handed over to the I.O. of the case.

In my opinion, there was definite sign of penetration. Ext.7 is the medico-legal injury report of victim (named withheld), Ext. 7(a) is my signature therein. Ext. 7(b) is the signature of father of victim who had affixed his signature on Ext.7 at the time of giving consent for examination of his daughter. Ext. 7(c) is the signature of P.I. Mahendra Subba which I can identify as he affixed the same in my presence at the time of receiving undergarment of the victim and the vaginal and vulval wash fluid.

..............................................................................."

None of the above evidence could be demolished under cross-examination besides the observation that he did not find Crl.A.No.03 of 2016 13 Akbar Ali @ Md. Sentu vs. State of Sikkim any marks or injuries in the mouth of the victim girl. The injuries on the genital of the victim as observed by the Doctor points unwaveringly to the fact of sexual assault on her.

15. Pointing to the evidence of P.W.3, Learned Counsel for the Appellant had argued that the statement of witness to the effect that he went to the place of occurrence after the victim narrated the incident to him is not corroborated by the evidence of the victim, P.W.8 herself. On perusal of the evidence of both witnesses, it is clear that there is a variance inasmuch as the victim has said that she saw her grandparents in the field nearby while her uncle called her parents, as against the statement of P.W.3 who said that P.W.8 narrated the incident to him. Consideration on this aspect has to be taken of the fact that the child of 11 years was evidently severely traumatised by the incident as would be apparent from her conduct inasmuch as she went home running, therefore, it is humanly impossible for the victim to recall every incident in seriatim, in any event this discrepancy does not go to the heart of the matter and therefore, merits no consideration. Although, the decision of Radhey Shyam7 (supra) was relied on by Learned Counsel for the Appellant on this count, the facts therein are clearly distinguishable from the instant one as in Radhey Shyam7 (supra) the Appellant allegedly cut the throat of his children with a blade, in the house of his in- laws where he was residing for treatment. The incident was allegedly witnessed by P.W.2, brother-in-law, of the Appellant who was a child witness. It was held therein that the evidence of Crl.A.No.03 of 2016 14 Akbar Ali @ Md. Sentu vs. State of Sikkim a child witness must be evaluated with greater circumspection because a child is susceptible to tutoring and adequate corroboration must be found before it is considered reliable. As the evidence of the child witness (supra) could not be corroborated by other evidence, the Court did not take it into consideration. In the instant case, however the victim herself after experiencing the incident has stated as to what transpired, duly corroborated by the medical examination conducted by P.W.11 and, therefore, it cannot be said that her evidence is tainted in any way or the result of tutoring. She is not a third person who witnessed the crime. She is the victim who was violated, the person who experienced the offence and was traumatised by it.

16. In Swaroop Singh vs. State of Madhya Pradesh19 : (2013) 14 SCC 565 the facts were similar to the instant case inasmuch as the victim was proceeding to the field for cutting grass when she was waylaid by the Appellant who forcibly raped her by threatening her at knife-point. The Hon'ble Apex Court while refusing to interfere with the Judgment of conviction of the Learned Trial Court and the High Court opined that the Doctor who examined the prosecutrix had clearly stated that hymen of the prosecutrix was torn and ruptured and held in Paragraph 15 as follows;

"15. In this context it will be worthwhile to refer to the principles laid down by this Court as to the manner in which the evidence of a rape victim should be evaluated to ascertain the truth. The said decision is reported in State of Punjab v. Gurmit Singh [(1996) 2 SCC 384]. Paras 8 and 21 are relevant which read as under:

(SCC pp. 395-96 & 403)

19. (2013) 14 SCC 565 Crl.A.No.03 of 2016 15 Akbar Ali @ Md. Sentu vs. State of Sikkim "8. ... The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In case involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook.

The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? .................. These observations bring within its ambit the facts and circumstances of this case and sets to rest all apprehensions and doubts raised by Learned Counsel for the Appellant.

17. It was also canvassed by the Appellant that the Learned Trial Court arrived at the finding that the Appellant was guilty as he had absconded, but this has been eschewed by the Hon'ble Apex Court in the decision of Sujit Biswas11 (supra) wherein it was held that a person against whom an FIR has been lodged may abscond apprehending arrest, but his mere absconsion cannot mean he is guilty. In the said matter (Sujit Biswas11), it may be noticed that contrary to the case at hand, the Appellant had absconded as he was "named" in the FIR, but in the case at hand the FIR was lodged against an unknown labourer. It is not disputed that there were many other labourers working at Crl.A.No.03 of 2016 16 Akbar Ali @ Md. Sentu vs. State of Sikkim the spot along with the Appellant therefore, what raises a doubt against the Appellant as being the offender is the fact that despite being unnamed in the FIR, he chose to abscond from the place of his employment. The observation of the Hon'ble Apex Court that absconsion is in fact relevant evidence, but its evidentiary value depends upon the surrounding circumstances, cannot be lost sight of. Absconsion of the Appellant herein undoubtedly adds to the evidentiary value in the facts and circumstances of the instant case, reiterating the belief that he had committed the offence.

18. That, having been said, the next pertinent issue would be the identification of the Appellant. Learned Counsel had contended that a T.I. Parade was not conducted despite the Appellant not being known to the victim and placed reliance on the Judgments (supra). It was, inter alia, held therein that belated identification of the Appellant in Court for the first time after more than two years from the date of the incident when the prosecution witness did not name the Appellant before the Police should not form the basis of conviction, especially when the same is not corroborated by either previous statement made before the police or any other evidence.

19. Needless to point out that the said matter is distinguishable from the facts in the instant case, inasmuch as if we are to revert to Exhibit 4, Section 164 Cr.P.C. statement of the victim, she has clearly stated that she knew the Appellant prior to the date of the incident, as he used to work at Namcheybong School as Mistiri (mason). She has also clearly stated in her Crl.A.No.03 of 2016 17 Akbar Ali @ Md. Sentu vs. State of Sikkim evidence in Court that at the relevant time of the incident she was studying in class V. "While playing Pittu game, the accused (identified) told me to supply the T. T. ball which cause (sic) near to me (objected). After the school time was over at around 12 noon, I and my cousin brother Saroj Chettri left for our respective home. As my parent had directed me to bring fern leaves (sottar) as such I and my said cousin brother went to nearby jungle to collect sottar. From jungle I saw the accused was going to the direction of my house at the relevant point of time the saw me (objected). Thereafter the accused person came to the place where we were collecting/cutting sottar. The accused told my cousin brother to buy cigarette for him and he also told that he will cut sollttar (sic) for him (objected)." Under cross-examination she has not dithered and has unwaveringly affirmed that "I saw the accused for the first time in my school on the day of the incident. There were about 10 nos. of labours (sic) working in our school on the relevant day." Therefore, the question of the victim not being able to identify the Appellant in the above circumstances does not arise. On this count, we may also consider the evidence of P.W.2 who has stated that "I am 9 years old. I know the accused person standing in the dock but I do not know his name. I saw him at Namcheybong School area. He used to work in School also. ............... When we two were cutting grass the accused person (identified) came there and gave me Rs. 2/- to fetch cigarette for him from Daragaon Dokan near to the place where we were cutting the grass." His evidence stood the test of cross-examination as he stated that "The accused works as a mistiri at our school. There are about 10 mistiris working in my school besides the accused. I had seen the accused in School but have never talked with him at any point of time. It is not a fact that I had never seen the accused before or that I could not recognize him." Thus, where identification of the Appellant as the perpetrator of the offence is concerned, the victim aged about 11 years and P.W.2 aged about 9 years, have given clear, consistent and categorical Crl.A.No.03 of 2016 18 Akbar Ali @ Md. Sentu vs. State of Sikkim statements which in my considered opinion needs no further corroboration.

20. In Shree Kant Shekari16 (supra) the Apex Court has held that sexual violence apart from being a dehumanising act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity - it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. Hence, it was concluded that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. This would squarely apply to the matter at hand and I find no reason to disbelieve the victim in the light of the evidence deposed by her. That apart, the injury in her genital and the blood detected on her thighs by P.W.11 lends credence to the commission of the offence. In Page 667-678 of the Modi A Textbook of Medical Jurisprudence and Toxicoloy 24th Edition 2013 while describing the injuries likely to be found on victim of rape it has been elaborated as follows;

"(iii) Genitals.―.....................................................

(1) ....................................................................

(2) Recently effused or dried blood may be found upon the genital organs or in the neighbourhood, and in recent cases, there may be bleeding from the vagina, which is usually very slight. Bleeding itself might be due to menstruation, which is possible to be induced by sexual intercourse.

(3) Bruising and laceration of the external genitals may be present with redness, tender swelling and inflammation.

Crl.A.No.03 of 2016 19

Akbar Ali @ Md. Sentu vs. State of Sikkim (4) ........................................................................ 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.

.........................................................................." The injuries on the victim are consistent with the descriptions above and leads to the indubitable conclusion that she was raped.

21. P.W.1, the father of the victim, P.W.3, the grandfather and P.W.4 the grandmother of the victim, are rustic villagers as per the Learned Additional Public Prosecutor and were examined after two years therefore, and hence cannot be faulted for minor discrepancies in their evidence. On this count, we may refer to the decision of the Hon'ble Apex Court in Krishna Master15 (supra) wherein the Court had held that minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. It was also opined that minor omissions in the police statements are never considered to be fatal and there are normal discrepancies in the depositions of witnesses, howsoever honest and truthful they may be which may occur due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence. The same principles may be applied while sifting through the evidence of P.Ws 1, 3 Crl.A.No.03 of 2016 20 Akbar Ali @ Md. Sentu vs. State of Sikkim and 4 who are rustic villagers and whose evidence have to be considered keeping in mind their mental dispositions.

22. Coming to the question of non-production of the seized articles, reliance was placed on Kishanbhai5 (supra). It was held therein that the said case being one, inter alia, under Sections 376 and 302 of the IPC, there has now been a great advancement in scientific investigation and the investigating agency ought to have sought DNA profiling of the blood sample which would have given a clear picture whether or not the blood of the victim Gomi was, in fact on the clothes of the respondent- accused Kishanbhai. The matter ended in an acquittal due to insensitive handling of the matter by the investigating agency. In the said case, the six year old victim died as a result of the crime and thus the case was built entirely on circumstantial evidence and would have substantially benefitted from DNA profiling. In the instant case although it is true that the I.O. has failed to exhibit or explain the fate of vaginal and vulval wash of the victim or the blood sample of the Appellant collected for DNA profiling, yet this Court has to be alive to the undisputed fact that the victim is living to narrate the gruesome incident and her evidence is not faltering with regard to the identification of the Appellant and the act committed on her, duly corroborated by the medical examination of P.W.11.

23. With regard to non-production of the SHO, Panjipara Out-Post under Goalpokher Police Station, District Uttar Dinajapur, West Bengal as witness, I am of the considered view Crl.A.No.03 of 2016 21 Akbar Ali @ Md. Sentu vs. State of Sikkim that, in any event it would not have assisted in the facts of the case. At the same time notice is taken of Exhibit 11, a Movement Order issued to the I.O. and other Police personnel by the Superintendent of Police, East District, Sikkim, enabling them to proceed to Uttar Dinajapur, West Bengal and Exhibit 10 the Non Bailable Warrant of Arrest issued by the Court of the Judicial Magistrate for arrest of the Appellant.

24. In the facts and circumstances of the case, I am of the considered opinion that the impugned Judgment and Order on Sentence of the Learned Trial Court warrants no interference.

25. Before parting with the matter, it is pertinent to point out that before the amendment of 2013 Section 376(2)(f) of the IPC pertained to commission of rape on a woman below 12 years of age and prescribed a penalty of rigorous imprisonment for a term which shall not be less than 10 years, but which may be for life and shall also be liable to fine. The offence being committed on 11-02-2011, therefore the Section as it existed prior to the amendment is applicable. Although the records of the case indicate that the victim was 11 years at the time of the incident, however neither the Birth Certificate of the victim nor the School Admission Register or any other documentary proof has been filed to establish the age of the victim. In the absence of such proof, no further discussion on this point need ensue.

26. In the result, the Appeal is dismissed.

Crl.A.No.03 of 2016 22

Akbar Ali @ Md. Sentu vs. State of Sikkim

27. In terms of The Sikkim Compensation to Victims or his Dependents Schemes, 2011, as amended in 2013, a sum of Rs.1,00,000/- (Rupees one lakh) only, be made over to the victim by the Sikkim State Legal Services Authority (for short "SSLSA").

28. No order as to costs.

29. Copy of this Judgment be sent to the Learned Trial Court along with Records of the Court, and to the Member Secretary, SSLSA forthwith for information and compliance.

Sd/-

( Meenakshi Madan Rai ) Judge 15-11-2016 Approved for reporting : Yes Internet : Yes ds

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