SONAM PINTSO BHUTIA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The instant Appeal is directed against the judgment dated 29.04.2013, rendered in Sessions Trial Case No. 14 of 2013, whereby and whereunder, the appellant was held as guilty of offence under Sections 342 and 376 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') for having committed wrongful confined of minor victim girl in his house and committed rape on her. Consequently, he was sentenced to undergo imprisonment for a period of ten years under Section 376 IPC and to pay a fine of Rs.2,000/-, in default, to further undergo simple imprisonment of two months. Under the provisions of Section 342 IPC, he was sentenced to undergo six months imprisonment and to pay a fine of Rs.500/-, in default, to further undergo simple imprisonment of fifteen days. Both the sentences were directed to run concurrently.

(2.) The appellant/accused has tried under the provisions of Indian Penal Code, 1860, as the Protection of Children from Sexual Offences Act, 2012 came into force on 14.11.2012, after the alleged crime was committed.

(3.) The case of the prosecution relates back to 15.10.2011, when allegedly the appellant/accused inveigle the victim child of seven years old, when she was returning with her brother Abhishek Chettri to home from Yuksom Bazaar around 7.30 AM, to his house for taking back some CDs belonging to her father, Deo Kumar Chettri. The appellant/accused, thereafter, gave some marbles and biscuits to both the children. Her brother, Abhishek was taken to the TV room and engaged him in watching the TV. The victim was taken to the adjacent room, thereafter, the appellant closed the door, undressed her and forced himself upon her while closing her eyes and month. It is alleged that the appellant/accused after undressing her and himself, tried to insert his genital organ in her genital organ, which caused her screaming. It is further alleged that before doing the act of insertion of genital, he rubbed some cream. This act of his was unsuccessful, he, therefore, applied cream on the anus and tried to insert his genital organ. The child-victim cried out of pain which made Abhishek to bang the door of the closed room. The accused/appellant shouted from the room that "its ok and its over now stop screaming". Thereafter, the child-victim came out and narrated the entire incidents to her mother, Lachi Maya Chettri, who proceeded to lodge FIR in Gyalshing Police Station. FIR was lodged by father of the victim, namely, Deo Kumar Chhetri, on reaching the police station on the same day at 12.00 O' clock, noon. A case was registered as Gyalshing P.S. Case No. 27/2011 dated 15.10.2011 under Sections 376/ 342 IPC, against the appellant/accused. Thereafter, the victim was taken for medical examination to STNM Hospital, Gangtok, wherein Dr. Paras Mani Karki examined her at around 09.00 PM and found that breast was not yet developed, pubic hair was absent. On local examination of private part of the victim, one hair strand was found which was handed over to the police. There was red colouration of the private part i.e. perineum. There was induration and abrasion. Hymen was admitting one finger and there was small tear in the hymen. No active bleeding was found in the examination.