TSHERING THENDUP BHUTIA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The testimony of the victim is once again sought to be questioned on the ground that it is not reliable; there is no corroborative evidence; the first information report (FIR) (exhibit 1) lodged by her was after five days and there are inconsistencies in the prosecution case and there is evidence to suggest that the victim had lodged the false FIR to avenge the appellant not having accepted the proposal of marrying the victim"s sister. The learned Judge, Fast Track Court, South and West Sikkim at Gyalshing (Ld. Trial Judge), has examined each of these issues and found that the sole testimony of the victim is reliable, there is corroboration from the evidence of PW-2 (victim"s husband), PW-3 (elder sister of the victim), PW-4 (sister-in-law of the victim) and PW-5 (other sister of the victim), the delay in lodging the FIR has been adequately explained, the inconsistencies pointed out by the defence are immaterial and the defence of false FIR an afterthought.

(2.) The conviction and sentence of the appellant dtd. 26/4/2022 under Sec. 341, 376(1) and 506 of the Indian Penal Code, 1860 (IPC) is challenged in the present appeal. Charges were framed under Sec. 341, 376(2)(f), 376(2)(l) and 506 IPC. Ten witnesses including the Investigating Officer (PW-10) were examined by the prosecution after charges were framed on 31/7/2021. The appellant"s examination under Sec. 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.) was conducted on 26/3/2022, where he took a stand that the accusation was not true and he had been implicated since he had declined to marry the victim"s sister.

(3.) The conviction of the appellant was substantially based on the evidence of the victim which was found to be reliable and un-impeached during cross-examination. The lack of injuries on her body including her private part was not found fatal by the learned Trial Judge as it was held that it was settled law that mere absence of injuries on a victim of rape does not disprove the prosecution"s case, nor does it render a testimony false, if the Court is of the opinion that her testimony inspires confidence and is found to be reliable and trustworthy. The defence of the appellant that it was a false case brought against him as attempt to match make the appellant with one of the sisters was also held to be improbable. Similarly, delay in lodging the FIR of five days was held to be sufficiently explained by the victim who testified that she was too ashamed and scared after the incident to tell anyone. The learned Trial Judge was also of the opinion that the testimony of the victim was corroborated by PW-2 (victim"s husband), PW-3 (elder sister of the victim), PW-4 (sister-in-law of the victim) and PW-5 (the other sister of the victim).