DAWAGYAL LEPCHA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Court of the Learned Judge, Fast Track, South and West Sikkim, at Gyalshing, convicted the Appellant/Accused in Sessions Trial (Fast Track) Case No.05 of 2021 (State of Sikkim vs. Dawagyal Lepcha), vide Judgment dtd. 4/6/2022, under Ss. 376(2)(f) and (l), Sec. 457 and Sec. 506 of the Indian Penal Code, 1860 (hereinafter, the 'IPC'). Although the Learned Trial Court opined that the Prosecution had however failed to prove the charge against the Appellant under Sec. 376(2)(j) of the IPC but did not pronounce an Order of acquittal under the said Sec. .

(2.) The Appellant assails the conviction (supra) and Order on Sentence dtd. 6/6/2022, whereby he was sentenced to undergo ten years rigorous imprisonment under Sec. 376(2)(f) of the IPC with a fine of ? 10,000/- (Rupees ten thousand) only, a similar period of imprisonment under Sec. 376(2)(l) of the IPC with a fine of ? 15,000/- (Rupees fifteen thousand) only, five years rigorous imprisonment under Sec. 457 of the IPC with a fine of ? 5,000/- (Rupees five thousand) only, and two years imprisonment under Sec. 506 of the IPC. The sentences of imprisonment were ordered to run concurrently. All the sentences of fine bore default clauses of imprisonment.

(3.) Learned Legal Aid Counsel for the Appellant before this Court submitted that the Learned Trial Court was in error in convicting the Appellant on the sole testimony of the victim with tangential reliance placed on the evidence of P.Ws 1, 2, 5, 7 and 8, which was of no assistance to the Prosecution case, as the witnesses not only failed to establish the case but were not ocular witnesses. The evidence of P.W.2 is an exacerbated version of the incident as P.W.3 herself has nowhere deposed about such facts as alleged by P.W.2. That, the evidence of P.Ws 7 and 8 do not support the Prosecution case since they were not privy to the incident and admittedly heard no sounds from the room of the victim, during the course of the night when the incident allegedly took place. P.W.8 in fact specifically deposed that on the said night he did not hear any cries or shouts for help, although the victim has the ability to mouth some words. The evidence of the Doctor, P.W.13 reveals that there were no signs of sexual assault on the victim. She found injuries on the 'right lateral portion of the right thigh' of the victim and deposed that such injuries can be caused by a fall. Although there were some scratch marks on the cheeks of the Appellant, it is not the Prosecution case that the marks were inflicted by P.W.3. Hence, the Doctor's evidence did not fortify the Prosecution version. That, although material Exhibits connected with the alleged incident were forwarded to the RFSL, the Expert who examined the Exhibits was not cited as a Prosecution witness and the RFSL Report failed to support the Prosecution allegations against the Appellant. P.W.2 in fact has been specific in her claim that the victim does not allow anyone to enter her room, hence the question of the Appellant entering the victim's room is negatived. That, there is no evidence to substantiate the Prosecution case and the evidence of P.W.3 is unreliable, the Learned Trial Court having failed to take into consideration the provisions of Sec. 119 of the Indian Evidence Act, 1872 (hereinafter, the 'Evidence Act'), while examining P.W.3. Apart from which, P.W.3 admittedly suffers from mild retardation and epilepsy, making the requirement of testing of her competence to depose imperative. In fact, the evidence of P.W.1 reveals that P.Ws 2 and 5 had informed P.W.6, the Panchayat Member, who summoned them to the Panchayat Bhawan on the next day. The victim, P.W.3 along with P.Ws 1, 2 and 5 went to the Panchayat Bhawan but as the matter could not be resolved with the Appellant, they went to the Police Station to report the matter where P.W.3 made her statement against the Appellant. That, the conduct of P.Ws 1 and 5 reveal that they sought to derive some benefit from the Appellant and on his refusal to settle the alleged incident, he was falsely roped in the case. That, the evidence of P.W. 1 establishes that she had not seen the Appellant on the night of the incident nor did she see him near the house of P.W.3. That, as per P.W.6, the victim allegedly narrated by gestures to the Panchayat President, one Meena Sharma, how the Appellant had sexually assaulted her, but the Panchayat President was not listed as a Prosecution witness, thereby leading to an adverse inference against the Prosecution. That, in view of the afore enumerated grounds, it is apparent that the Prosecution has failed to prove that the Appellant had committed the offence of sexual assault against the victim, hence the impugned Judgment be set aside and the Appellant be acquitted of all the charges.