BHIM BAHADUR BASNETT Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Prosecutrix/victim, P.W.2, in the instant matter, is a differently abled person being hearing and speech impaired. The Complaint, Exhibit 2, came to be lodged by P.W.3, the nephew of the victim, in whose house the offence allegedly took place on 21- 09-2020, of which the victim informed him and his wife, P.W.1. The Court of the Learned Judge (Fast Track), South & West, at Gyalshing, on careful analysis of the oral and documentary evidence adduced by the Prosecution and on appreciation of all facts and circumstances of the case was convinced that the Appellant had raped and sexually assaulted the disabled victim on the night of 21/9/2020, in the house of P.W.3. The Appellant was convicted for having raped a woman with physical disability, punishable under Sec. 376(2)(1) of the Indian Penal Code, 1860 (hereinafter, -IPC?), in S.T. (Fast Track) Case No.01 of 2021 (State of Sikkim vs. Bhim Bahadur Basnett). In consequence thereof, he was sentenced to undergo rigorous imprisonment for a term of fifteen years for commission of the offence and to pay a fine of ? 50,000/- (Rupees fifty thousand) only, in default of payment of fine to undergo simple imprisonment for one more year, setting off the period of detention already undergone by him, in terms of Sec. 428 of the Code of Criminal Procedure, 1973 (hereinafter, -Cr.P.C.?).

(2.) The Prosecution case is that on 21/9/2020 the victim had gone to Yangang Bazaar (South Sikkim), from where she set out for the house of her nephew P.W.3 and spent the night. During the evening, the Appellant, a co-villager, also came to the same house. On account of the persistent heavy rain, he too spent the night in the house of P.W.3. That, both the above persons were in two separate rooms in the main house of P.W.3, as P.W.3 and his family spent the night in a temporary room, near the cowshed. On the intervening night of 21/9/2020 and 22/9/2020, the Appellant entered the room of the victim and is alleged to have sexually assaulted her. The next morning when P.W.3 and his family went over to their main house at around 6 a.m., both the victim and the Appellant had already left the house. In the afternoon, however, the victim returned to the house of P.W.3 and informed his wife P.W.1 that the Appellant had raped her four times during the night. P.W.1 then informed her husband P.W.3 of what P.W.2 had expressed to her through gesticulations. P.W.3 for his part informed the neighbours and the Panchayat after which P.W.10 scribed the FIR, Exhibit 2, on which P.W.3 affixed his signature. On completion of investigation, P.W.11 who was the Investigating Officer of the case found that a prima facie offence under Sec. 376 of the IPC was made out against the Appellant and ChargeSheet was submitted accordingly. Charge was framed under Sec. 376(2)(1) of the IPC against the Appellant by the Learned Trial Court. On the plea of -not guilty? by the Appellant, the Prosecution embarked on an examination of eleven Prosecution witnesses. The Learned Trial Court concluded that the Prosecution had proved its case and pronounced the impugned Judgment and Order on Sentence, both dtd. 31/12/2021.

(3.) Aggrieved thereof, Learned Senior Counsel for the Appellant contended before this Court that the allegation made by the victim against the Appellant is not borne out by medical or forensic evidence. That, the Appellant was aged approximately 32 years at the time of offence, whereas the victim was 52 years and claims to have been raped four times during the night as narrated to P.W.1. Exhibit 4 is the medical report of the victim, according to which, the victim was examined on 23/9/2020 at 03.40 p.m., the offence having allegedly taken place on the intervening night of 21- 09-2020 and 22/9/2020. That, no physical indication of such violation were found on her person including her private parts. The Medical Officer, P.W.9, after examining the victim categorically opined that there was no vaginal tear, no swelling, no ecchymosis neither was there any tenderness in the area. The vaginal swabs both internal and external of the victim, collected by P.W.9, were examined at the Regional Forensic Science Laboratory (RFSL). That, neither the undergarments of the victim and the accused forwarded to the RFSL contained any body fluids nor did the penile swabs of the Appellant and the vaginal swabs of the victim point to any offence. The medical report of the Appellant failed to lend credence to the Prosecution case as no injuries were detected on any part of his body, including his private parts. The Prosecution exhibited the RFSL report as Exhibit 9 but failed to enumerate reasons as to why the Junior Scientific Officer of the RFSL who conducted the forensic tests was not examined as a witness. This clearly indicates that the Prosecution evidence did not support the allegation made by the victim against the Appellant. That, the victim was examined as P.W.2 during the trial and the records reveal that the Oath was administered on the victim with the help of the Special Educator and P.W.1 the victim's relative who was allegedly familiar with the communications made by the victim. That, the Learned Trial Court however failed to appreciate that the victim did not live with P.W.1 but with P.W.6 her sister and therefore there was no explanation as to how P.W.1 or the Special Educator were familiar with the gesticulations and communication made by the victim. That, no assistance was obtained from P.W.6 during trial, who would have been better circumstanced to explain the communications made by P.W.2. That, P.W.6 has also not revealed in her evidence that the victim had complained to her at any point in time that the Appellant had raped her. In fact, according to P.W.6, after P.W.2 returned home the area Panchayat came to her house and informed her, i.e., P.W.6, that her sister had been raped by the Appellant, in the house of P.W.3 and took P.W.2 along with her. The cross-examination of P.W.6 reveals that the Prosecution failed to record the correct name of the victim. It was next emphasised that the Learned Trial Court also failed to take into consideration Sec. 119 of the Indian Evidence Act, 1872 (hereinafter, -Evidence Act?) while recording the evidence of P.W.2 as the proceedings were not videographed. That, the Sec. 313 Cr.P.C. statement of the Appellant is indicative of the fact that he was framed in the offence as his elder brother was complicit in getting P.W.10 arrested in another case. That, in light of the arguments advanced it is apparent that the evidence on record fails to establish the Prosecution case. Relying on the decision of this Court in Dal Bahadur Darjee vs. State of Sikkim,2019 SCC OnLine Sikk 122. and Dawagyal Lepcha vs. State of Sikkim,2023 SCC OnLine Sikk 93. it was urged that the legal principles emphasised therein under Sec. 118 and Sec. 119 of the Indian Evidence Act have not been followed by the Learned Trial Court. That, as the Prosecution has failed to prove its case beyond reasonable doubt, the Appellant be acquitted of the offence charged with.