PURAN TIRWA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) all these appeals challenge the judgment and order of the learned sessions judge, east & north, sikkim at gangtok convicting them under sections 366 and 376 read with section 34 of indian penal code, and sentencing each of them under section 376 with rigorous imprisonment for a period of 10 years and a fine of rs. 2000/- and in default of payment of fine to undergo further rigorous imprisonment for six months and under section 366 of indian penal code to undergo rigorous imprisonment for 4 years and a fine of rs. 1000/- and in case of default of payment of fine to undergo further rigorous imprisonment for six months. Substantive sentences of imprisonment were directed to run concurrently.

(2.) all the appellants and one sukbir tamang are taxi drivers and stood trial before the sessions judge in criminal case no. 15 of 1998. However, before the case could be decided by the learned sessions judge, sukbir tamang absconded. The victim is ms. Luki subba who is a resident of makha. Prosecution case is that on 22nd july, 1998, the victim ms. Luki subba dame from her house at makha t6 the house of her aunty (phupu) at singtam bazar and while she was returning from singtam bazar to her home, all the appellants and sukbir tamang stopped their vehicle and offered to take her towards makha. The victim told them that she did not have the passenger fare and would, therefore, prefer to walk. But the four accused persons gave the victim girl a free lift. When they reached near kali khola, they stopped the vehicle on the pretext of washing it and also closed the hood. Then appellant puran tirwa came inside the vehicle and pulled out her clothes and forcibly committed sexual intercourse with her. All her attempts to resist failed, as, the other accused persons held her hands and feet when the appellant puran tirwa committed forcibly sexual intercourse with her. Thereafter, she managed to escape and ran towards manpari busty. After she had just crossed over the bridge towards manpari busty, appellant puran tirwa took her inside the tata truck forcibly and when she tried to scream, he closed her mouth with his palm. Thereafter, the accused persons drove her further and on reaching near the military camp, the tata truck stopped and there puran tirwa again committed sexual intercourse with her forcibly. Then accused sukbir tamang, who later absconded came and forcibly laid her on the second seat of the tata truck and committed sexual intercourse with her. When she tried to resist, the other persons held her by her hands and feet. Thereafter, the driver of the vehicle, namely. Man bahadur tamang, called her to the front seat and outraged her modesty. After sometime, the victim asked the driver to stop the tata truck, as she wanted to urinate. The driver stopped the truck and then she got down and went a little further where she pretended to urinate. In the meantime, one gypsy vehicle came and the victim stopped that vehicle and made a request for a lift and she was offered the lift by the owner of the vehicle who happened to be her phupa (father's sister's husband). Then she got into the gypsy vehicle and spent the night in the house of her phupa. On the next day, that is, 23rd july, 1998, til bahadur subba, p. W. 2, the father of the victim made a complaint to the officer-in-charge, singtarn police station to the effect that his daughter luki subba had gone to her aunty at singtam, and when she was returning home after having failed to meet her aunty, the appellant puran tirwa and three boys told her that their vehicle would go to makha and deceitfully took her in their vehicle and forcefully raped her on the way. The fir was scribed by nilakantha rai, c. W. 5. According to the prosecution, the victim was aged less than 16 years at the relevant time. She was medically examined on 23rd july, 1998 by medical officer, singtam district hospital dr. Manoj kumar sarda, p. W. 10, who reported in his report exhibit 3 as under : 1. Seminal fluid stains on the inner aspect of thigh and inguinal fold; 2. Bruise over labia majora and inguinal region; tender to touch; 3. Per vaginal examination, superficial bruise tenderness. Vaginal swab taken. Sperms not detected. 4. Hymen-lateral tear. 5. No marks of abrasion over breast. Dr. Sarda referred the case to the medico- legal specialist for opinion. Consequently, on the same day dr. K. B. Gurung, the medico-legal specialist, s. T. N. M. Hospital, p. W. 8 examined her and gave his opinion that there was clinical evidence of penetration of the hymen. All the accused persons were arrested on 23rd july, 1998, but they were not medically examined.

(3.) i have heard shri n. Rai, advocate on behalf of appellant puran tirwa and shri s. S. Hamal, advocate on be half of the other appellants, namely, man bahadur tamang and rama shankar prasad. I have also heard shri n. B. Khatiwada, additional public prosecutor on behalf-of the state. It is submitted on behalf of the appellants that the evidence on record is full of infirmities and is not credible at all to prove the prosecution case. It is also submitted on behalf of the appellants that the prosecution has failed to prove that luki subba was aged less than 16 years. According to the learned counsel for the appellants, no offence was committed by the appellants and even if the prosecution is held to have proved the commission of the act of sexual intercourse by any of the appellants, it would appear from the evidence that the victim girl was a consenting party. On the other hand, learned additional public prosecutor has tried to support the judgment and order of the learned trial court.