Sikkim High Court
Binod Pradhan And Another vs State Of Sikkim on 20 December, 2019
Equivalent citations: AIRONLINE 2019 SK 72
Author: Bhaskar Raj Pradhan
Bench: Meenakshi M. Rai, B. R. Pradhan
THE HIGH COURT OF SIKKIM: GANGTOK
(Criminal Appellate Jurisdiction)
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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. 31 of 2017
1. Binod Pradhan,
Aged about 36 years,
Son of Late Naresh Pradhan,
Resident of Turuk, Daragoan,
South Sikkim.
Presently lodged at Central Prison,
Rongyek, East Sikkim.
2. Sabita Rai,
Aged about 24 years,
Wife of Binod Pradhan,
Resident of Turuk, Daragoan,
South Sikkim.
.....Appellants
Versus
State of Sikkim
..... Respondent
Appeal under Section 374(2) of the Code of Criminal Procedure, 1973.
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Appearance:
Mr. Tashi Rapten Barphungpa, Advocate (Legal Aid Counsel) for
the Appellant.
Mr. Thupden Youngda, Additional Public Prosecutor for the
Respondent.
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Date of hearing : 05.12.2019
Date of judgment : 20.12.2019
JUDGMENT
Bhaskar Raj Pradhan, J.
1. The appellant no.1 has been convicted under sections 376(2)(n), 342 and 120B read with section 34 of the Indian Penal Crl. A. No. 31 of 2017 2 Binod Pradhan & Another vs. State of Sikkim Code, 1860 (for short „IPC‟). He has been sentenced to rigorous imprisonment for twenty years and a fine of Rs.20,000/- for each of the offences under sections 376(2)(n) IPC and 120B IPC. He has been further sentenced for one year under section 342 IPC. The appellant no.2 has been convicted under sections 120B and 342 read with section 34 IPC. For the offence under section 120B, the appellant no.2 has been sentenced to undergo simple imprisonment for ten years and to pay a fine of Rs.10,000/-. She has been sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.10,000/- under section 342 IPC. All sentences have been directed to run concurrently. An amount of Rs.3,00,000/- has been awarded to the victim as victim‟s compensation.
2. The judgment of conviction and order on sentence dated 21.09.2017 passed by the learned Judge, Fast Track, South and West Sikkim at Gyalshing (for short „the learned Judge‟), in Sessions Trial (F.T) Case No. 8 of 2016 are under challenge by both the appellants. The appellant nos.1 and 2 are husband and wife respectively.
3. The investigation of the case emanated from the First Information Report (for short „the FIR‟) (Exhibit-5) lodged by the victim (PW-6) on 08.10.2016. The victim alleged that on 07.10.2016, the appellant no.2 asked her to go to her house. They reached her house at 6:30 p.m. At night, she had dinner Crl. A. No. 31 of 2017 3 Binod Pradhan & Another vs. State of Sikkim with the appellants and their child. At 8:30 p.m. they allotted her a room to sleep in. The appellant no.2 asked her if she wanted a sleeping pill, which she declined. When she was sleeping at around 9:00 p.m., the appellant no.1 came to her bed without her consent. She took him out of the room and latched the door. She, thereafter, tried to call the appellant no.2 but she refused to wake up. After a while, the appellant no.1 entered through the ceiling. When he started to force himself on her, she screamed but in spite of that he raped her and kept her locked inside the room. At around 3:00 a.m. in the morning, he once again raped her. During the night, she had called her friend (PW-1) on his mobile and requested him to come and get her. She also messaged him. On 08.10.2016 at around 8:00 a.m., she ran away from the house and went to a Church a little below the appellant‟s house. She asked for help and the people at the Church kept her hidden in the storeroom. The appellants, however, came and took her out. She told the appellant no.2 about the incident but the appellant no.2 supported the appellant no.1 and threatened her. PW-1 and one Badhal came looking for her and took her away. Thereafter, the victim told her sister (PW-2) about the incident and lodged the FIR. It appears that the signature of the victim in the formal FIR (Exhibit-6) dated 08.10.2016 was obtained only on 13.10.2016. Crl. A. No. 31 of 2017 4
Binod Pradhan & Another vs. State of Sikkim
4. The appellant no.1 was arrested on 17.10.2016 and appellant no.2 on 18.10.2016.
5. The final report dated 30.11.2016 was filed against the appellants as well as Subash Pradhan. It alleged that the appellant no.1 had committed rape on the victim and the appellant no.2 had conspired with the appellant no.1. Subash Pradhan was alleged to have concealed the appellants to screen them from legal punishment. On 23.02.2017, the learned Judge framed three charges under sections 376(2)(n), 342/34 and 120B read with 34 IPC against the appellant no.1. Two charges under sections 120B/34 and 342/34 IPC were framed against the appellant no.2. Charges were also framed against Subash Pradhan.
6. During the course of trial, the prosecution examined eleven witnesses including the Investigating Officers. The appellants were examined under section 313 of the Code of Criminal Procedure, 1973 (for short „the Cr.P.C.‟) on 05.08.2017. Both the appellants stated that they did not have any witness to their defence.
7. The learned Judge found that the prosecution had not adduced any evidence against Subash Pradhan and accordingly acquitted him of both the charges.
Crl. A. No. 31 of 2017 5
Binod Pradhan & Another vs. State of Sikkim
8. Heard Mr. Tashi Rapten Barfungpa, learned Counsel for the appellants and Mr. Thupden Youngda, learned Additional Public Prosecutor for the respondent.
9. Mr. Barpungpa submitted that in the facts and circumstances set out in the prosecution case, the statement of the victim is unreliable; there are material contradictions in the evidence produced; vital independent witnesses who could have deposed about what actually transpired have not been examined; there is no evidence to prove that blood of the appellant no.1 was drawn and sent for forensic examination and consequently, the forensic evidence that semen was found in the victim‟s underwear cannot be connected to the appellant and more importantly, the medical examination of the victim completely demolishes the allegation of rape. Relying upon the judgment of the Supreme Court in Sri Rabindra Kumar Dey v. State of Orissa1, he emphasised that the prosecution is required to prove its case beyond reasonable doubt; cannot derive any benefit from weakness or falsity of the defence version and that the accused is presumed innocent until proven guilty. He would rely upon the same judgment to submit that investigation implies the search for truth and not to bolster the allegation against the accused. The judgment of the Supreme Court in Vijender v. State of Delhi2 1 (1976) 4 SCC 233 2 (1997) 6 SCC 171 Crl. A. No. 31 of 2017 6 Binod Pradhan & Another vs. State of Sikkim was cited by him to submit that the result of investigation cannot be the basis for the finding of guilt against an accused. The judgment of the Supreme Court in Vithal Tukaram More & others v. State of Maharashtra3 was cited in support of his argument that it is the duty of the Court to see that penal provisions intended to curb the crime by bringing the offenders to book do not cause injustice to the innocent. He submitted that if two views are possible on evidence adduced, the view favourable to the accused should be adopted while relying on Umakant & another v. State of Chhattisgarh4. Mr. Barfungpa further submitted that as per settled principles of criminal jurisprudence, more serious the offence, more strict the degree of proof. For the said proposition, he cited the judgment of the Supreme Court in Mousam Singha Roy & another v. State of W.B5. Relying upon R. Shaji v. State of Kerala6, he submitted that if the prosecution seeks to establish its case by way of circumstantial evidence, it must do so beyond reasonable doubt.
10. Per contra, Mr. Thupden Youngda submitted that the evidence of the victim and the other prosecution witnesses clearly establishes the guilt of the appellants beyond reasonable doubt. The deposition of the victim is beyond reproach and nothing 3 (2002) 7 SCC 20 4 (2014) 7 SCC 405 5 (2003) 12 SCC 377 6 (2013) 14 SCC 266 Crl. A. No. 31 of 2017 7 Binod Pradhan & Another vs. State of Sikkim substantial was extracted by the defence during the cross- examination of the prosecution witnesses including the victim. He relied upon the judgment of the Supreme Court in State of Orissa v. Thakara Besra & another7 to submit that victim of rape were not women of easy virtue and since there was no suggestion made to the victim in cross-examination or in the defence plea in the course of his examination under section 313 of the Cr.P.C. that the victim had any grudge or reason to falsely implicate the appellants in such a heinous crime in which she herself was ravished and her honour was at stake.
11. The learned Judge has convicted the appellants on the basis of the testimonies of the victim (PW-6); Dr. Karma Choden Bhutia (PW-8) who found "bluish discoloured bruise on right arm" of the victim on 08.10.2016 when she examined her and Prem Kumar Sharma (PW-9) the Junior Scientific Officer at the RFSL, Ranipool who found that the victim‟s underwear had human semen which matched the blood group of the appellant no.1. The learned Judge also relied upon the deposition of the victim‟s friend (PW-1) who had gone to the appellant‟s house and brought the victim back the next day after she had sought his help during the night. The learned Judge found that the appellant had been identified by the victim as well as her friend (PW-1) in Court. The learned Judge held that failure to seize the 7 (2002) 9 SCC 86 Crl. A. No. 31 of 2017 8 Binod Pradhan & Another vs. State of Sikkim cell phone of the victim‟s friend (PW-1) and her sister (PW-2) are inconsequential and did not affect the prosecution case of rape and wrongful confinement. The learned Judge thus concluded that the victim had been repeatedly raped by the appellant no.1 with the appellant no.2 sleeping just next door. The learned Judge found corroboration in the forensic examination of the black underwear by Prem Kumar Sharma (PW-9) when he detected semen on it which matched the blood group of appellant no.1. The learned Judge also held that the appellant no.2 had wrongfully restrained the victim having entered into conspiracy with the appellant no. 1 in the commission of rape of the victim.
12. The prosecution evidence does establish that the FIR had been lodged against the appellants. The evidence of the victim‟s friend (PW-1), the victim‟s sister (PW-2), the victim‟s brother-in-law (PW-3), Deepak Gurung (PW-4) who accompanied PW-3 to the Police Station, the victim and Police Inspector Karma Chedup Bhutia (PW-7) who received the complaint and registered the FIR have adequately established this fact. It is also certain that the victim had accompanied the appellant no.2 to her house and the next day her friend (PW-1) picked her up from there.
13. As per the FIR, the victim was with the appellants on 07.10.2016. Besides the appellants, their child was also in the house where the alleged incident is said to have taken place. The child was not examined. The appellants enjoyed their right of Crl. A. No. 31 of 2017 9 Binod Pradhan & Another vs. State of Sikkim silence. What happened on the night of 07.10.2016 can therefore be gathered only from the victim‟s evidence. The victim also spoke about informing her friend (PW-1) and her sister (PW-2). They have been examined and their evidence could provide corroboration if found convincing. PW-1‟s friend Badhal was not examined by the prosecution.
14. The victim elaborated what she stated in the FIR during her deposition. She reiterated that she had accompanied the appellant no.2 to her house on 07.10.2016. She deposed that the appellant no.2 had offered her sleeping pills but she had declined. She stated that the appellant no.2 had offered her another room. She deposed that she had sent a text message to PW-1 and talked to him on his mobile. The victim also deposed about the appellant no.1 committing rape twice. She reiterated that she had run away the next morning and hid herself in a Church just below the appellant‟s house but the appellants had come to the Church and taken her back. The substantial discrepancies between the FIR, her statement recorded under section 164 Cr.P.C and the deposition of the victim were not brought out in cross-examination by the defence. What was brought out in cross-examination is that the appellant no.2 had not forced the victim and taken her to their house and that she did not know the appellant since long. The deposition of the victim also elaborated on the participation of the appellant no.2. Crl. A. No. 31 of 2017 10
Binod Pradhan & Another vs. State of Sikkim According to her deposition although appellant no.2 was her friend she did not permit her to sleep in her room but instead offered her another room with two beds, one for the victim and the other for the appellant no.1. She also deposed that the appellant no.2 had told her that the appellant no.1 normally sleeps in that room. According to the victim the appellant no.2 did not help her even when she saw the appellant no.1 pulling and dragging her back to the room and when the victim told the appellant no.2 about the rape she refused to believe her. The victim had not stated so in the detailed FIR lodged by her.
15. The victim deposed about how she tried to escape from the appellant‟s house the next day. Most of the witnesses deposed about by the victim i.e. "M Didi", Sushila and the people at the Church who hid her when she fled from the house and took refuge there, have not been examined.
16. The victim deposed that the appellant no.1‟s brother had left after dinner on 07.10.2016. She did not depose about him returning thereafter. However, the victim‟s friend (PW-1) deposed that he was there in the appellants‟ house the next day.
17. The victim deposed about the two acts of forceful rape which was committed on her at the appellants‟ house by the appellant no.1 on the night of 07.10.2016 and the morning of 08.10.2016. Dr. Karma Choden Bhutia (PW-8) the Medical Crl. A. No. 31 of 2017 11 Binod Pradhan & Another vs. State of Sikkim Officer who examined her on 08.10.2016 at around 5 p.m. noted "bluish discoloured bruise on her right arm". Although, the communication dated 08.10.2016 from the Officer-In-Charge of the police station to the Medical Officer had specially asked whether the victim had sustained any injury on her private part, Dr. Karma Choden Bhutia (PW-8) noted that besides the bruise there were no other external marks of violence. During cross- examination Dr. Karma Choden Bhutia (PW-8) admitted that he had not mentioned the age of the bruise but clarified that the bruise being bluish was suggestive of being a day old as it was not red in colour.
18. As correctly pointed out by Mr. Tashi Rapten Bafungpa there is no evidence to prove that the blood sample of the appellant no.1 had been collected. The two Investigating Officers i.e. Kunchok N. Wangdi (PW-10) and Damdi Lachungpa (PW-11) both deposed that blood sample of the appellant no.1 had been collected and sent for forensic examination. According to Damdi Lachungpa (PW-11) the blood sample was collected at Namchi District Hospital. The defence did not dispute these assertions by the Investigating Officers during their cross- examination. However, there is no evidence led by the prosecution which would establish that the appellant no.1 was in fact taken to the Namchi District Hospital. No record of Namchi District Hospital was produced to establish what the Crl. A. No. 31 of 2017 12 Binod Pradhan & Another vs. State of Sikkim Investigating Officers stated were true. Kunchok N. Wangdi (PW-
10) proved the letter dated 29.10.2016 sent by him to RFSL, Ranipool (Exhibit-14) purportedly forwarding exhibits including blood sample of the appellant no.1. The handing / taking memo (Exhibit-15) proved by Kunchok N. Wangdi (PW-10) also records the handing over of a requisition for blood specimen of the appellant no.1. However, there is no material to even suggest that the appellant no.1 who had been alleged to have raped the victim had been examined by a medical practitioner under section 53 A of the Cr.P.C. The appellant no.1 when asked about the collection of blood sample from him denied that Kunchok N. Wangdi (PW-10) had taken his blood sample. We are of the view that the prosecution has failed to lead cogent evidence to establish that the blood sample examined by Prem Kumar Sharma (PW-9) the Junior Scientific Officer at RFSL, Ranipool was in fact of the appellant no.1. The prosecution ought to have led evidence to prove that the blood sample was collected from the appellant no.1 and sent for forensic examination. The oral evidence of the Investigating Officers alone would not satisfy the requirement of proof of the fact in a criminal case. Otherwise, a bare statement of an Investigating Officer would send the accused to the gallows.
19. The victim deposed that vide seizure memo (Exhibit-1) her black underwear (MO-I) was seized from her before two Crl. A. No. 31 of 2017 13 Binod Pradhan & Another vs. State of Sikkim witnesses. The black underwear (MO-I) is shown to have been seized from the victim on 08.10.2016 at the Melli Police Station in the presence of Deepak Gurung (PW-4) and PW-1. Deepak Gurung (PW-4) the person who accompanied the victim‟s brother-in-law (PW-3) to the police station deposed that he witnessed the seizure of the victim‟s clothes there. He identified the black underwear (MO-I). PW-1 also deposed that the black underwear (MO-I) was seized from the victim. During cross- examination PW-1 admitted that at the time of the seizure the black underwear (MO-I) was at the police station and he volunteered to state that he had been called to the police station the next day when he signed on the seizure memo (Exhibit-1). More importantly, he admitted he had no idea where the black underwear (MO-I) was seized from and whether it belonged to the victim. The black underwear (MO-I) which was examined by Prem Kumar Sharma (PW-9) who detected human semen on it is said to be of the victim. The victim unfortunately, did not identify the same in Court as the prosecution failed to show it to her during her deposition. Although, human semen could be detected on the black underwear (MO-I) the crucial identification of the underwear (MO-I) which is missing, dents the prosecution case. The seizure memo (Exhibit-1) records that the seizure took place at the Melli Police Station on 08.10.2016. PW-1 is uncertain about it although he was a friend of the victim. However, both Dr. Karma Choden Bhutia (PW-8) who examined the victim on Crl. A. No. 31 of 2017 14 Binod Pradhan & Another vs. State of Sikkim 08.10.2016 at Namchi District Hospital and Dr. Mani Gurung (PW-5) who examined the victim at STNM Hospital, Gangtok on 09.10.2016 deposed that the victim‟s undergarment was removed by them and given to the lady home guard and the police respectively. The prosecution evidence on this aspect is also profoundly confusing and uncertain. Resultantly, we have but no option but to discard this evidence.
20. The deposition of the victim is of forceful rape, not once but twice the same night. The victim was examined by Dr. Mani Gurung (PW-5) at the STNM Hospital, Gangtok on 09.10.2016. On local genital examination, Dr. Mani Gurung (PW-
5) found that the hymen admitted one finger. No fresh injury was seen. Vaginal wash was taken on 09.10.2016 and sent for pathological examination for presence of spermatozoa which turned negative. Dr. Mani Gurung (PW-5) finally opined after clinical examination and the lab reports that it does not suggest of recent forceful sexual act.
21. The alleged rape is said to have transpired in the confines of the appellant‟s house. The testimony of the victim stands alone. It seems that the victim told her friend (PW-1) that the appellant had raped her when they were on their way to her sister‟s house. According to her sister (PW-2) the victim had been raped twice by the appellant no.1. According to the victim‟s brother-in-law (PW-3) the victim told him that the appellant no.1 Crl. A. No. 31 of 2017 15 Binod Pradhan & Another vs. State of Sikkim had forcibly raped her. He also deposed about bruises on her arms and all her clothes being torn. According to Deepak Gurung (PW-4) who accompanied the victim‟s brother-in-law (PW-3) to the Police Station the victim told them that she had been raped thrice. The victim herself did not depose about her clothes being torn. The Investigating Officers also did not depose that they had seized any torn clothes of the victim. The seizure memo (Exhibit-
1) also does not record that the track pant and jeans were torn. Although Dr. Karma Choden Bhutia (PW-8) did find "bluish discoloured bruise" on the victim‟s right hand no such bruises were detected in the other arm as deposed by the victim‟s brother-in-law.
22. It is true that if the victim‟s deposition is found credible that alone could lead to a conviction. The medical evidence however, is contradictory to the victim‟s version of multiple forceful rapes committed on her. The victim was eighteen years old. The appellant no.1 is said to be 36 years of age. Dr. Mani Gurung (PW-5) who examined her on 09.10.2016 did not notice any injury on her genital examination although her hymen admitted one finger only. The victim‟s deposition gives us a sense that there has not been a full disclosure. In the circumstances it is vital for us to seek corroboration. The victim had deposed that after the appellant no.1 had entered the room from the ceiling she had sent a text message and also talked to Crl. A. No. 31 of 2017 16 Binod Pradhan & Another vs. State of Sikkim PW-1 on his mobile. According to PW-1 the victim had sent a text message stating "Please come I am in a trouble". However, admittedly, both the mobiles were not seized and examined. Although, the victim‟s friend (PW-1) was examined, his friend Badhal who is said to have accompanied PW-1 to the appellant‟s house the next day was not examined by the prosecution. It is the victim‟s version that after the incident she tried to make excuses to escape by calling one "M Didi" and that the appellant no.2 had cross-checked with one Sushila about the victim‟s version. However, both of them were also not examined. The victim further deposed that she fled the next morning and hid herself in the Church a little below with the help of some persons there. None of them were also examined. Their evidence would have been crucial to corroborate the version of the victim.
23. The learned Judge was also moved by the fact that the appellant no.1 had been found guilty, convicted and sentenced for the offence under section 376 IPC by the Trial Court earlier in a case in which both the appellants were tried. Although, the learned Judge noted that this Court had subsequently acquitted the appellant no.1, she still expressed her shock that within a span of two years and seven months the present case had been lodged once again. Section 54 of the Indian Evidence Act, 1872 provides that in criminal proceedings the fact that the accused person had a bad character is Crl. A. No. 31 of 2017 17 Binod Pradhan & Another vs. State of Sikkim irrelevant, unless evidence had been given that he has a good character, in which case it becomes relevant. Explanation 2 thereof provides that a previous conviction is relevant as evidence of bad character. No evidence was given that the appellant no.1 had good character. The Trial Court‟s judgment had also been reversed by this Court. Thus, this Court is of the view that since the appellant no.1 had in fact been acquitted subsequently, the learned Judge being influenced by it was not correct.
24. In State of Orissa (supra) the Supreme Court had noted that the testimony of the victim was truthful and trustworthy and was corroborated by her immediate and subsequent conduct as also the medical evidence. The present case lacks in both medical as well as forensic corroboration and there is an element of uncertainty in the deposition of the victim. The present case is a case where the prosecution has failed to put forth credible evidence to establish the offences. Therefore, although there is no material to show that there was any grudge or reason for the victim to falsely implicate the appellants, that alone does not help the prosecution to establish the case beyond all reasonable doubt. When the Court lacks confidence to rely upon the version of the victim alone without any corroboration faced with conflicting medical evidence it would not be proper to uphold the appellants conviction. It is settled that even in a case Crl. A. No. 31 of 2017 18 Binod Pradhan & Another vs. State of Sikkim of rape the prosecution is not excused from leading cogent and trustworthy evidence to establish the heinous offence.
25. We are of the view that the prosecution has failed to establish the offences by leading cogent evidence. Resultantly, the appeal is allowed, the impugned judgment and order on sentence passed by the learned Judge are set aside. The appellants are given the benefit of doubt. The appellant no.1 is acquitted of the offences under sections 376(2)(n), 342 and 120B read with section 34 of the IPC and appellant no.2 is acquitted of the offences under sections 120B and 342 read with section 34 of the IPC.
26. Appellant no.1 be set at liberty forthwith, if not required in any other matter.
27. The appellant no.2 who is presently on bail is discharged from her bail bonds.
28. Fine, if any, deposited by the appellants in terms of the impugned order on sentence be reimbursed to them.
29. Copy of this judgment be transmitted to the learned Trial Court forthwith.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
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