RAM BHAKTA RAI Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The questions that fall for determination before this Court are, (i) whether the Appellant perpetrated sexual assault on the victim; (ii) whether such act could be described as a sexual assault; or (iii) whether it was consensual.

(2.) On 7/2/2022, Exbt 1, the FIR, was lodged by PW-1, the sister-in-law of the victim PW-2, informing the jurisdictional Police Station that, the Appellant had raped the victim on the same day, at about 01.22 p.m. She witnessed the incident while returning after completing an errand. On the basis of the FIR, the concerned PS registered the case against the Appellant, under Sec. 376 of the Indian Penal Code, 1860 (hereinafter, 'IPC') and endorsed it for investigation to PW-7. Charge-Sheet was filed against the Appellant under Sec. 376 of the IPC.

(3.) Learned Counsel for the Appellant contended that in fact no such act of sexual intercourse took place between the Appellant and the victim. However, if indeed such an act did take place it was entirely consensual. Learned Counsel raised doubts about the date of offence and argued that the Prosecution has failed to establish the correct date of the offence. PW-1 in her FIR mentioned that, the offence took place on 7/2/2022 but the victim PW-2, during her medical examination told the Doctor that the offence took place on 6/2/2022, at 3 p.m. The date and time of the offence are contradictory in the evidence of PW-1 and PW-2. Although an abrasion was detected in the labia minora of the victim but the age of the injury was not discerned. Considering the age difference between the Appellant who was fifty-five years and the victim aged thirty-five years, she could well have defended herself, being younger and presumably physically stronger. The FIR was not scribed by PW-1, but the scribe was not examined for verification. The victim did not raise any hue and cry when the Appellant allegedly disrobed her, and since she was in a state of total nudity it implied her consent. Her Sec. 164 Cr.P.C. statement reveals that she was not aggrieved by the incident. Hence, the impugned Judgment of the Trial Court deserves to be set aside and the Appellant acquitted of the offence of rape.