Sikkim High Court
Dal Bahadur Darjee vs State Of Sikkim on 23 August, 2019
Equivalent citations: AIRONLINE 2019 SK 37, 2019 CRI. L. J. 4929, 2019 (204) AIC (SOC) 36 (SK)
Author: Bhaskar Raj Pradhan
Bench: Meenakshi M. Rai, B. R. Pradhan
1
Crl. Appeal No. 08 of 2019
Dal Bahadur Darjee v. State of Sikkim
THE HIGH COURT OF SIKKIM: GANGTOK
(Criminal Appeal 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. Appeal No. 08 of 2019
Dal Bahadur Darjee,
S/o late Padam Bahadur Darjee,
Resident of Sajong, Central Pendam,
East Sikkim.
At present:
State Central Prison, Rongyek,
East Sikkim.
.... Appellant
Versus
State of Sikkim. .... Respondent
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Appeal under Section 374(2) of the Code of Criminal
Procedure, 1973.
Appearance:
Mr. N. Rai, Senior Advocate with Ms. Malati Sharma,
Advocate for the Appellant.
Mr. S. K. Chettri, Assistant Public Prosecutor and
Ms. Pollin Rai, Assistant Public Prosecutor for the
Respondent.
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JUDGMENT
(23.08.2019) Bhaskar Raj Pradhan, J
1. The prosecution case was of rape committed by the Appellant on the victim-a 55 year old deaf and dumb lady suffering from paralysis. Two separate charges under Section 376 (2) (j) and (l) of the Indian Penal Code, 1860 (IPC) were 2 Crl. Appeal No. 08 of 2019 Dal Bahadur Darjee v. State of Sikkim framed by the learned Judge, Fast Track Court (learned Judge). The Appellant pleaded not guilty and claimed trial.
2. The victim was not examined although the records reveal that a commission was ordered by the learned Judge. The prosecution therefore, banks on the evidence of P.W.6-the daughter-in-law of the victim who is said to be the sole eye witness and the "Bara" (P.W.4), a witness who reached the place of occurrence immediately after the alleged act.
3. The learned Judge vide judgment of conviction dated 27.02.2019 has convicted the Appellant under Section 376(2)(j) and 376(2)(l) of the Indian Penal Code, 1860 (IPC). He has therefore, sentenced the Appellant to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.5000/- for each of the said offences separately. The period of sentence has been directed to run concurrently.
4. Heard. The learned Senior Advocate for the Appellant submitted that the reliance upon the sole testimony of P.W.6- the daughter-in-law of the victim to hold the Appellant guilty when the victim herself had not been examined was wrong. He submitted that the evidence produced by the prosecution clearly reflects that this was a false case and the deposition of P.W.6 is not trustworthy. He pointed out that the medical and forensic evidence also supports his innocence. He relied upon the judgment of the Supreme Court in re: State of Rajasthan v. 3 Crl. Appeal No. 08 of 2019
Dal Bahadur Darjee v. State of Sikkim Darshan Singh alias Darshan Lal1; Tameezuddin alias Tammu v. State (NCT of Delhi)2; Kaini Rajan v. State of Kerala3 and Sadashiv Ramrao Hadbe v. State of Maharashtra & Anr.4.
5. The learned Assistant Public Prosecutor on the other hand submitted that the evidence of P.W.1 to P.W.6 and P.W.9 proved the prosecution case. It was submitted that the deposition of P.W.6 who was a natural eye witness is wholly reliable and it has not been demolished by the defence. He submitted that it was not necessary in every case to examine the victim and if the other evidence produced would bring home the guilt the judgment of conviction must be upheld. He relied upon the judgment of the Supreme Court in re: Thanedar Singh v. State of M.P.5 and Sunil Kumar v. State Govt. of NCT Delhi6.
6. Section 376(2) (j) and (l) IPC reads as under:
"376. Punishment for rape.-
(2) Whoever,-
(j) commits rape, on a woman incapable of giving consent; or
(l) commits rape on a woman suffering from mental or physical disability;
shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine."
1 (2012) 5 SCC 789 2 (2009) 15 SCC 566 3 (2013) 9 SCC 113 4 (2006) 10 SCC 92 5 (2002) 1 SCC 487 6 (2003) 11 SCC 367 4 Crl. Appeal No. 08 of 2019 Dal Bahadur Darjee v. State of Sikkim
7. Section 376(2)(j) prescribes the punishment for commission of rape on a woman incapable of giving consent. The two ingredients which the prosecution must prove are the
(i) commission of rape on a woman (ii) who is incapable of giving consent.
8. Commission of rape upon a "a woman incapable of giving consent" leads to punishment with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine. The punishment prescribed in Section 376 (2) IPC is thus greater in degree than the punishment prescribed for rape simplicitor as provided in Section 376(1) IPC.
9. Before an accused is punished for the offence provided in Section 376(2) (j) IPC it is incumbent upon the Court to examine if the woman who has been raped is "a woman incapable of giving consent."
10. From the deposition of P.W.1 and P.W.2-the victim's nephews, P.W.3-the victim's elder brother, P.W.6-the victim's daughter-in-law, it can safely be held that the victim was deaf and dumb and suffering from some form of paralysis although no medical evidence was led by the prosecution to establish the same. The prosecution has also not led any medical evidence to reflect the state of her mental health. P.W.1 deposed that 5 Crl. Appeal No. 08 of 2019 Dal Bahadur Darjee v. State of Sikkim P.W.6, P.W.2 and the victim went to Rangpo Police Station to lodge the FIR. According to Nima Tshering Bhutia (P.W.9) Special Educator he tried to communicate with the victim through hand gestures when her statement under Section 164 Cr.P.C. was attempted to be recorded and came to learn that the victim suffers from multiple disabilities and was completely dependent on others for sustenance. The Investigating Officer (P.W.13) also deposed that the victim was forwarded to District Hospital, Singtam along with her guardian where the P.W.12 opined that she was deaf and dumb. He deposed that the victim was unable to give her statement before the learned Magistrate under Section 164 Cr.P.C. as she had never attended special school for deaf and dumb and could not communicate with the special educator. This also confirms that the victim was deaf and dumb and reflects that the victim was not completely paralysed. The cross-examination of P.W.1, P.W.2, P.W.3 and P.W.6-the relatives of the victim suggests that the Appellant also conceded to the fact that the victim was deaf and dumb. That however, does not necessarily mean that she was incapable of giving consent. The Supreme Court in re: Darshan Singh (supra) held that a deaf and dumb is a competent witness. The prosecution asserts that the victim was 55 years old. Therefore, she was not a child incapable of giving consent. The Investigating Officer (P.W.13) deposed that the victim could not express anything except by moving her hands when she is hungry which is understood by her family members. 6 Crl. Appeal No. 08 of 2019
Dal Bahadur Darjee v. State of Sikkim
11. The prosecution relied upon exhibit-7 as the opinion of the Special Educator-(P.W.9). The said document is signed by the learned Judicial Magistrate (P.W.10) in the form for recording statements of the victim. It states why the victim's statement under Section 164 Cr.P.C. could not be recorded. Both the learned Judicial Magistrate (P.W.10) and the Special Educator (P.W.9) deposed that exhibit-7 was his opinion. Apart from stating that he was a Special Educator he did not provide any further details about his expertise. He also did not clarify what multiple disabilities the victim suffered from. The learned Judicial Magistrate (P.W.10) has also recorded in exhibit-7 that P.W.1 submitted that the victim just shows her hand when she is hungry and apart from that she does not communicate with them in any other way for any other matter. This is hearsay evidence. P.W.1 did not say so when he deposed before the Court. This evidence also therefore, does not help the prosecution.
12. Thus the prosecution has failed to prove that the victim was a woman incapable of giving consent. Resultantly, the conviction and sentence under Section 376(2) (j) must be set aside.
13. Section 376(2)(l) (IPC) prescribes the punishment for commission of rape on a woman suffering from mental or physical disability. The two ingredients which the prosecution 7 Crl. Appeal No. 08 of 2019 Dal Bahadur Darjee v. State of Sikkim must prove are the (i) commission of rape on a woman (ii) who is suffering from mental or physical disability.
14. Section 2 (s) of the Rights of Persons with Disabilities Act, 2016 defines "person with disability" to mean a person with long term physical, mental, intellectual or sensory impairment which, in the interaction with barriers, hinders his full and effective participation in society equally with others. A deaf and dumb person would be a person with physical disability, so would a person who is even partially paralysed. Thus the evidence led by the prosecution establishes one of the ingredients of Section 376(2)(l) IPC. We shall now examine whether the prosecution has been able to prove that the Appellant had committed rape upon the victim.
15. The offence was allegedly committed on 07.01.2018. Section 375 IPC as amended by Criminal Law (Amendment) Act, 2013 would apply.
16. Section 375 IPC reads as under:
"375. Rape.--A man is said to commit "rape" if he -
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus, of a woman or makes her to do so with him or any other person; or 8 Crl. Appeal No. 08 of 2019 Dal Bahadur Darjee v. State of Sikkim
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of the body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with or any other person, Under the circumstances falling under any of the following seven descriptions:-
(First) -- Against her will.
(Secondly) --Without her consent.
(Thirdly) -- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
(Fourthly) --With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
(Fifthly) -- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. (Sixthly) -- With or without her consent, when she is under sixteen years of age.
(Seventhly)- When she is unable to communicate consent. Explanation 1.-- For the purposes of this section, "vagina" shall also include labia majora.
Explanation 2. - Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act; 9 Crl. Appeal No. 08 of 2019
Dal Bahadur Darjee v. State of Sikkim Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1.- A medical procedure or intervention shall not constitute rape.
Exception 2.- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."
17. Different forms of rape have been defined in Section 375 IPC. The prosecution must prove beyond reasonable doubt that the accused committed rape upon the victim without her consent and against her will. The allegation against the Appellant is of penetrative sexual assault. Penetration even if partial is a sine qua non to the offence of rape falling under Section 375 (a) IPC.
18. Although the learned Judge vide order dated 28.05.2018 allowed the application of the prosecution under Section 284 Cr.P.C. to examine the victim on commission in the Court of the learned Judicial Magistrate, Rangpo on 04.06.2018 the records reveal that the victim was not examined. Therefore, the only evidence available is the evidence of the eye witness i.e. P.W.6 the daughter-in-law of the victim. Conviction on the basis of the testimony of a sole eye witness is maintainable if it is found to be reliable and trustworthy. It was held so in re: Sunil Kumar (supra). Sometimes even if the victim is not examined but the 10 Crl. Appeal No. 08 of 2019 Dal Bahadur Darjee v. State of Sikkim evidence produced unerringly proves the accused guilty beyond reasonable doubt, conviction could be upheld.
19. P.W.6 is the daughter-in-law of the victim who is her aunt- in-law. She deposed that on 07.01.2018 she had left the victim in their courtyard after bathing her and giving her food. She returned home after about half an hour. When she was about to reach home she saw the victim in a fully naked condition and the Appellant naked from his waist down as well. The Appellant was on top of the victim whose legs were spread out by the Appellant and he was performing "penetrative sexual assault"
upon the victim. On seeing the act she screamed aloud and hurriedly reached the place of occurrence. There she saw the Appellant pulling up his pants and giving the victim her clothes. After this the Appellant bit his fingers and went towards the toilet and pretended to look for their family saying he could not see any of them present there. She confronted the Appellant and asked him as to what he was doing to the victim. The Appellant replied that the victim was already in a nude condition when he reached there. Then she asked the Appellant why he was also naked and he replied that his pants were loose so it slid down on its own. In the meanwhile she noticed that the victim was still naked waist down and was trying to wear her clothes but she was not able to do so. She helped the victim get dressed. After about five minutes one "Bara" (P.W.4) who lives close to their house reached the place of occurrence 11 Crl. Appeal No. 08 of 2019 Dal Bahadur Darjee v. State of Sikkim as he heard her scream. The "Bara" (P.W.4) asked her what happened and she narrated the incident to him. The "Bara"
(P.W.4) scolded the Appellant and asked him why he had committed the act. The Appellant replied that nothing had happened. Thereafter, when the Appellant started walking away she asked him to stay and face her husband who would return in a while. The Appellant did not listen to her and went away. P.W.6 also exhibited her statement recorded under Section 164 Cr.P.C.
20. In her cross-examination P.W.6 admitted that she was not informed about the victim's condition prior to her marriage; the financial condition of her parental house was stable and she had never served a person like the victim prior to her marriage; her in-laws were staying with them however, during the relevant time they had gone to Delhi; normally she and her mother-in- law would take care of the victim; during the relevant time she had responsibility to look after her minor daughter, the victim and the cattle and at times it was frustrating and irritating. She denied the suggestion that she made a false rumour against the Appellant to shift her responsibility and burden upon him. More importantly, she denied the suggestion that her statement under Section 164 Cr.P.C. was not recorded and that she did not narrate the entire incident to the learned Judicial Magistrate. The learned Senior Counsel for the Appellant submitted that in the statement under Section 164 Cr.P.C. 12 Crl. Appeal No. 08 of 2019
Dal Bahadur Darjee v. State of Sikkim P.W.6 had not stated that she saw the Appellant committing penetrative sexual assault. This is true. P.W.6 had stated to the learned Judicial Magistrate that the victim was completely naked from her hips; the Appellant's track pant was down to his knees; the victim was on her back and her legs were raised up and the Appellant was down on his knees and bending towards her. She did not state that the Appellant was committing penetrative sexual assault on the victim in her statement recorded under Section 164 Cr.P.C. From the angle and distance P.W.6 claims to have witnessed the act it would be impossible to see the actual act of penetrative sexual assault.
21. The FIR was registered on 08.01.2018. The alleged incident was of 07.01.2018. On 08.01.2018 itself the victim was medically examined by Dr. Jai Bahadur (P.W.12) the Medical Officer at Singtam District Hospital. He recorded that the victim's labia majora/minora were normal; there was no tear of the hymen, no haemotoma and vaginal bleeding was seen. He opined that there was no sign of use of force. He however, explained that lack of genital injuries could be because of use of lubricant, fingering with lubricant or being over powered. He opined that sexual violence could not be ruled out. He did not explain why. During cross-examination he admitted that although the victim had not taken bath or changed her underwear he did not find any semen stains or pubic hair on the genital of the victim; he did not find any trace 13 Crl. Appeal No. 08 of 2019 Dal Bahadur Darjee v. State of Sikkim of lubricant in the genital area of the victim; as per his finding there was no penetrative sexual assault; he did not find any bodily injury or any sign of forceful sexual intercourse on the body of the victim. The forensic investigation of the victim's trouser, Appellant's black coloured underwear, victim's vaginal swab/wash, Appellant's penile swab could not point any guilt towards the Appellant. Blood, semen or any other bodily fluid was not detected in any of them.
22. P.W.6's husband-P.W.1 deposed that when he heard about the incident from his wife he and his uncle went to the Appellant's house and confronted him. The Appellant denied having committed the offence. P.W.1 told the Appellant to come to his house the following morning and he would gather the village elders to look into the matter. According to P.W.1 the following morning the village elders along with his family members gathered in his house. The Appellant reached and offered two bottles of liquor and Rs.101/- as a token of apology. P.W.1 refused to accept it. The village elders suggested that the Appellant take the victim as his wife or else bear all her medical expenses if the victim got pregnant. The Appellant refused both the conditions. Thereafter, P.W.6, the victim and P.W.2 along with another went to Rangpo Police Station and lodged the FIR.
23. P.W.2 corroborated P.W.1's statement about the village elders suggesting to the Appellant to take the victim as his wife or bear the medical expenses if she got pregnant. Even P.W.1 14 Crl. Appeal No. 08 of 2019 Dal Bahadur Darjee v. State of Sikkim deposed that the Appellant refused the conditions. Thereafter, he went with others to lodge the FIR.
24. The "Bara" (P.W.4) deposed that when he heard P.W.6 shout "kay bako kay gareko daju" he hurriedly went home, kept the fodder and went to the victim's house. During cross- examination he admitted having not stated to the police that he had heard P.W.6 shout "kay bako kay gareko daju". The "Bara" (P.W.4) then stated that in the courtyard he saw P.W.6, the victim and the Appellant. The Appellant and the victim were fully clothed then. There was an element of exaggeration in the "Bara's" (P.W.4) statement as well.
25. P.W.5-wife of the "Bara" (P.W.4) however, deposed that the following evening police personnel from Rangpo Police Station came to the house of the victim where the Appellant confessed the crime, offered two bottles of liquor and a sum of Rs.100/- to the victim. During her cross-examination she admitted that she did not see the two bottles of liquor and Rs.100/- offered by the Appellant. No police officer corroborated P.W.5's deposition about the confession. In any case the alleged confession is also barred by Section 26 of the Indian Evidence Act, 1872.
26. Dr. N. Subba (P.W.11) who examined the Appellant on 08.01.2018 admitted during cross-examination that he had not mentioned whether the Appellant was capable of performing sexual intercourse. However, when the learned Judge questioned him he stated that he did not find anything in his 15 Crl. Appeal No. 08 of 2019 Dal Bahadur Darjee v. State of Sikkim examination to show the Appellant was incapable of performing sexual intercourse. Dr. N. Subba (P.W.11) deposed that he did not see any sign of forceful intercourse on the Appellant. His evidence in inconclusive.
27. A serious charge of rape-a heinous offence must be proved by cogent evidence. The prosecution has failed to do so. The evidence of P.W.6-the sole eye witness is doubtful on the aspect of penetrative sexual assault and unsubstantiated by medical evidence. P.W.1, P.W.2, P.W.3 and P.W.6 were all related to the victim. This alone is not a factor to affect their depositions credibility. However, P.W.1 and P.W.2 repeated what they were told by P.W.6 about the alleged rape. P.W.3 however, deposed that the Appellant had a good moral character. The defence has also been able to cast a shadow of doubt on the intention of P.W.6 in exaggerating the incident. There is evidence that they sat with the village elders who put the condition upon the Appellant to marry the victim although the village elders themselves were not examined. There is evidence that the Appellant did not agree to the condition. The two condition put were based on the allegation made by P.W.6. To what extent P.W.6 exaggerated the incident cannot be satisfactorily determined due to the absence of the victim's testimony and the hazy evidence led by the prosecution. This is an unfortunate situation resulting from lack of special education to person in need of it. The evidence led by the prosecution also does not 16 Crl. Appeal No. 08 of 2019 Dal Bahadur Darjee v. State of Sikkim establish the absence of consent. The learned Judge's finding that the prosecution has been successful in proving the case beyond reasonable doubt against the Appellant under Section 376(2)(l) IPC cannot be sustained.
28. In the circumstances, the impugned judgment is set aside. The Appellant is given the benefit of doubt and acquitted of both the charges under Section 376 (2) (j) and under Section 376 (2)
(l) IPC. The Appellant shall be released forthwith from custody if not required in any other case.
29. Certified copies of the judgment be sent forthwith to the Court of the learned Judge, Fast Track Court, East & North Sikkim at Gangtok. A copy thereof shall also be furnished to the Appellant.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
23.08.2019 23.08.2019
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