CHANDRA BAHADUR RAI Vs. STATE OF SIKKIM

JUDGEMENT

(1.) This judgment shall dispose the above three appeals preferred by the respective appellants against the common judgment of conviction dated 09.11.2017 and order on sentence dated 13.11.2017 in Sessions Trial (POCSO) Case No. 02 of 2017 (State of Sikkim v. Chandra Bahadur Rai, Tshering Thendup Bhutia and Arun Rai) passed by the learned Special Judge (POCSO), West Sikkim at Gyalshing. At the outset, we notice that Arun Rai had, besides filing a separate appeal, i.e., Criminal Appeal No. 06 of 2018, also jointly filed Criminal Appeal No. 1 of 2018 along with Chandra Bahadur Rai, both of which have been admitted for hearing. In view of the same, we deem it appropriate to consider Criminal Appeal No.1 of 2018 for Chandra Bahadur Rai and Criminal Appeal No. 06 of 2018 for Arun Rai.

(2.) A brief narration of facts common to the three appeals would be imperative at this stage. On 23.01.2017, a written complaint (Exhibit-3) was filed by the victim's father (PW-2) alleging that his daughter, the victim (PW-1), aged about 13 years was being raped by Chandra Bahadur Rai and Tshering Thendup Bhutia, appellants in Criminal Appeal No. 1 of 2018 and Criminal Appeal No. 7 of 2018, respectively. The first information report (FIR) (Exhibit-4) was lodged on the same date against the said two appellants and investigation taken up by Sub Inspector Naresh Chettri (PW-13). During the investigation, it is submitted, the statement (Exhibit-1) of the victim (PW-1) was recorded by the learned Judicial Magistrate on 10.02.2017 under section 164 of the Code of Criminal Procedure, 1973 (Cr.P.C.), in which the victim (PW-1) alleged that Arun Rai, appellant in Criminal Appeal No. 6 of 2018, had also tried committing sexual abuse on her several times. The Investigating Officer (IO) filed the charge-sheet dated 17.04.2017 against all the three appellants. The learned Special Judge framed charges against the appellants on 09.05.2017. Chandra Bahadur Rai was charged for commission of offences under section 5(l) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), section 383 of the Indian Penal Code, 1860 (IPC), section 307 IPC and section 506 IPC. Tshering Thendup Bhutia was charged for commission of offence under section 4 of the POCSO Act. Arun Rai was charged for commission of offences under section 7 of the POCSO Act and under section 506 IPC. During the trial, 13 witnesses were examined by the prosecution including the IO. The appellants were, thereafter, examined under section 313 Cr.P.C. on 21.09.2017. The appellants did not desire to produce any witnesses for their defence. The learned Special Judge convicted Chandra Bahadur Rai for commission of offence under section 5(l) of the POCSO Act and under section 506 IPC. He was acquitted of the charges under sections 383 and 307 IPC. Tshering Thendup Bhutia was convicted under section 18 of the POCSO Act for attempting to commit the offence of penetrative sexual assault. Arun Rai was convicted under section 7 of the POCSO Act and under section 506 IPC. By the order on sentence dated 13.11.2017, the learned Special Judge sentenced Chandra Bahadur Rai to undergo rigorous imprisonment for a term of twenty-five years and to pay a fine of Rs.50,000/- (Rupees fifty thousand). In default thereof, he was to undergo further imprisonment for a term of five years. He was also sentenced to undergo rigorous imprisonment for a term of two years for the offence under section 506 IPC. Both sentences were directed to run concurrently. Tshering Thendup Bhutia was sentenced to undergo rigorous imprisonment for a term of ten years and to pay a fine of Rs.25,000/- (Rupees twenty-five thousand). In default thereof, he was sentenced to undergo further imprisonment for a term of three years. Arun Rai was sentenced to undergo rigorous imprisonment for a term of three years and six months and to pay a fine of Rs.10,000/- (Rupees ten thousand). In default thereof, he was to undergo further imprisonment for a term of one year. For the offence under section 506 IPC, he was sentenced to undergo imprisonment for a term of one year. Both the sentences were directed to run concurrently. The period of detention already undergone by the appellants was directed to be set off. Compensation of Rs.3,00,000/- (Rupees three lakhs) was directed to be awarded to the victim under the Sikkim Compensation to Victims or his Dependents (Amendment) Schemes, 2016.

(3.) We have heard Mr. N. Rai, learned Senior Advocate for Chandra Bahadur Rai, Ms Gita Bista, learned Advocate for Arun Rai and Ms Puja Lamichaney, learned Advocate for Tshering Thendup Bhutia. On behalf of Chandra Bahadur Rai and Tshering Thendup Bhutia, it was argued that the victim (PW-1) had failed to identify the appellants in court; there was a delay in lodging the FIR (Exhibit-4) which was significant as it was admitted that the FIR (Exhibit-4) was lodged after due deliberation by the family members; the age of the victim (PW-1) had not been proved by the prosecution; there was no medical report to show that the appellants were capable of commission of sexual act; although the allegation was for commission of rape, the medical report of the victim did not have any evidence suggesting the same and that considering the nature of evidence, without prejudice to their contention that the prosecution had failed to establish their case beyond all reasonable doubt, the sentences imposed against the appellants were too harsh. The learned Counsel relied upon the following judgments - Bansi Lal and Another v. State of Jammu and Kashmir 1999 Cri. L.J. 114, Lall Bahadur Kami v. The State of Sikkim SLR (2017) SIKKIK 585, Anish Rai v. State of Sikkim SLR (2018) SIKKIM 889, Mangala Mishra @ Dawa Tamang @ Jack v. State of Sikkim SLR (2018) SIKKIM 1373, State of Rajasthan v. Bhanwar Singh (2004) 13 SCC 147, Birad Mal Singhvi v. Anand Purohit AIR 1988 SC 1796, Mahadeo S/o Kerba Maske v. State of Maharashtra and Another (2013) 14 SCC 637, Madan Mohan Singh and Ors. v. Rajni Kant and Anr. AIR 2010 SC 2933, Sunil v. State of Haryana (2010) 1 SCC 742 and Smt. Renu Meena v. State of Sikkim and Others SLR (2019) SIKKIM 622.