STATE OF SIKKIM Vs. PADAM BAHADUR PANDAY

JUDGEMENT

(1.) This Appeal assails the Judgment of the Learned Fast Track Court, East and North Sikkim at Gangtok, dtd. 30/5/2019, in S.T. (FT) Case No.03 of 2019, whereby the Respondent-Accused was acquitted of the offence under Sec. 376 (2)(l) and Sec. 376(2)(n) of the Indian Penal Code, 1860 (for short, the "IPC"), citing lack of evidence and thereby extending the benefit of doubt to him.

(2.) Learned Public Prosecutor, impugning the Judgment of the Learned Fast Track Court contended that, in fact, there was adequate evidence which proved the Prosecution case beyond a reasonable doubt against the Respondent who ought to have been convicted of the offences charged with. That, the Victim has categorically asserted in her Statement under Sec. 164 of the Code of Criminal Procedure, 1973 (for short, the "Cr.P.C.") that there was penetration of her genital by that of the Respondent's, thereby constituting the offence of rape. That, penetration does not have to be complete penetration for the offence of rape as held in Aman Kumar and Another v. State of Haryana (2004) 4 SCC 379. That apart, the evidence of the Victim is of sterling quality being cogent and trustworthy. Although her speech may have been incoherent, the incoherence did not extend to her evidence. That, the Hon'ble Supreme Court in Mohd. Imran Khan v. State Government (NCT of Delhi) (2011) 10 SCC 192 has laid down that the Statement of the Prosecutrix, if found to be worthy of credence and is reliable, requires no corroboration and the Accused may be convicted on the sole testimony of the Prosecutrix. That, in Wahid Khan v. State of Madhya Pradesh (2010) 2 SCC 9, the Hon'ble Supreme Court observed that in an Indian society, no woman would make allegations of rape as she is aware of the repercussions flowing therefrom. The Victim herein also had no reason to make any false allegations against the Respondent. The evidence of P.Ws. 2, 3 and 4 corroborate and support the Statements of the Victim, which have remained consistent. That, the Learned Trial Court failed to appreciate the fact that there was sufficient evidence on record to establish that the Victim was sexually assaulted by the Respondent on the relevant day apart from which, the evidence of the Victim has not been decimated under cross-examination. That, in his examination under Sec. 313 Cr.P.C., the Respondent did not deny the allegations made against him nor did he state that he was innocent. Hence, the Appeal be allowed and the Respondent be convicted of the offences as charged viz. under Sec. 376 (2)(l) and Sec. 376(2)(n) of the IPC.

(3.) Vehemently resisting the arguments of the Learned Public Prosecutor, Learned Senior Counsel for the Respondent contended that the Judgment of the Learned Trial Court can be set aside only if there is a perversity in the findings which, in the instant matter, is non-existent. That, this Court, in the first instance, is to examine whether the Statement of the Victim is trustworthy. That, at the time of the alleged offence, the Respondent was sixty years of age and the Victim, fifty five years. According to the Victim, the Respondent caught hold of her hands, dragged her forcibly to the latrine, touched and rubbed her breasts and committed rape on her. That, the entire circumstance narrated by the Victim appears to be incongruous and impossible considering that the Respondent was sixty years old at the relevant time, rendering it an impossibility for him to have dragged a grown woman of fifty five years for a long distance. According to Exhibit 1, the First Information Report (for short, the "FIR"), the Respondent had dragged her to the female toilet. Exhibit 11, the Rough Sketch Map of the Place of Occurrence indicates that the female toilet is situated at the end of the out house of the Old Age Home, preceded by six other such facilities. If the intention of the Respondent was to rape the Victim, there was no reason for him to have dragged her to the seventh facility to commit the offence. It could well have been committed in the first bathroom, which is the closest to the Old Age Home. That, the place where she was allegedly dragged from is visible from the roadside and a Mandir is located close by as also a Camp of the Indian Reserve Battalion, therefore, the act of dragging the Victim could easily have been witnessed by the persons in the area. That, there were seventeen inmates of the Old Age Home at the time of the alleged offence but none of them appear to have seen the Victim being dragged neither did she shout for help. That, it is not the Prosecution case that she was unable to shout out for help. That, the Respondent was not seen coming out of the toilet after the Victim, neither did the Victim point to him when she was narrating the incident to P.Ws. 2, 3 or 4. Nothing incriminating emerged from the Forensic Examination Report as well as the Medical Examination Report although both the Respondent and the Victim were examined on the date of the alleged offence i.e. 4/11/2018. Hence, the impugned Judgment being a reasoned one ought not to be interfered with and the Appeal deserves a dismissal. To buttress his arguments, reliance was placed on Union of India and Others v. Sepoy Pravat Kumar Behuria (2019) 10 SCC 220, State of Uttar Pradesh v. Wasif Haider and Others (2019) 2 SCC 303 and Santosh Prasad v. State of Bihar (2020) 3 SCC 443.