MADAN CHETTRI Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The appellant was convicted by the learned Sessions Judge, East and North at Gangtok under Section 376 of the Indian Penal Code for having committed rape on Sashikala Basnett who was aged less than 16 years in September/October, 1998 and was sentenced to undergo rigorous imprisonment for a period of 7 (seven) years with fine of Rs. 3,000.00 (Rupees three thousand) and in default of payment of fine to undergo further rigorous imprisonment for 6 (six) months.

(2.) The appellant Madan Chettri alias Bora is the resident of 7th Mile, Samdoor and the victim Sashikala Basnett was the resident of a nearby locality of Adampool, Samdoor. The offence was, according to the prosecution, committed in September/October, 1998 and the FIR (Ext. P1) was lodged after about 5 months of the occurrence on 21/02/1999 by Shree Bahadur Basnett father of the victim. In the FIR, Shree Bahadur Basnett stated that the appellant had committed 'indecent act' on his daughter Sashikala Basnett and he had come to know the incident only one day before. It was further stated that Sashikala was pregnant for about 5 months and that her age was 15 years. It appears that the victim girl did not disclose about the sexual assault on her except when it became absolutely necessary to do so on account of her advanced stage of pregnancy. 21 witnesses were initially produced by the prosecution to prove of its case. The matter came up for hearing before us on 3/04/2001. We found that the certified copy of the Birth Certificate issued by the Chief Registrar of Births and Deaths, Health and Family Welfare Department, Government of Sikkim, showing the date of birth of Sashikala Basnett as 22/06/1983 had not been proved and exhibited. Taking recourse to the provision of Section 391 Cr. P.C., we directed the learned Sessions Judge (East and North) to summon the official concerned belonging to the Office of Chief Registrar, Births and Deaths, Health and family Welfare Department, Government of Sikkim, along with the relevant records to prove the date of birth of Sashikala Basnett. Thereafter, two more witnesses were examined by the learned Sessions Judge, East and North. Of all the 23 witnesses, two witnesses namely, Ratan Kumar Subba, PW-2 and Man Bahadur Gurung, PW-6 have merely been tendered. A few witnesses have turned hostile and their evidence is not material. Evidence of some other witnesses is also not material.

(3.) It has been submitted on behalf of the appellant that there is no evidence on record to prove that rape was committed by the appellant as the words 'indecent act' or 'hath path' have been used by the material witnesses which does not, accordingly to the learned counsel, amount to rape. Dealing with the latter submission the learned trial Court observed :