CHENGA TSHERING BHUTIA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) This Appeal calls into question both the Judgment dated 28-12-2016 and the Order on Sentence dated 29-12-2016, of the Learned Special Judge (POCSO), West Sikkim, at Gyalshing, in Sessions Trial (POCSO) Case No.01 of 2016, convicting the Appellant under Section 376(1) of the Indian Penal Code, 1860 (for short "IPC") and sentencing him to undergo rigorous imprisonment for 9 (nine) years and to pay a fine of Rs.30,000/- (Rupees thirty thousand) only, with a default stipulation. The period of detention already undergone by the Appellant during investigation and trial were duly set off against the sentence of imprisonment imposed.

(2.) Aggrieved by the finding, Learned Counsel for the Appellant would argue that it has been established by evidence that the victim was infact 21 years at the time of the incident, consequently the act between her and the Appellant was consensual, this being evident from the circumstance that although the incident took place on 26-12-2015 at around 6 p.m., it remained unreported till 29-12-2015. The victim slept through the night after the incident and it was her father who brought it to the notice of the Panchayat lending further succour to the presumption of the act being consensual, the lack of injuries on the person of the victim being another such indicator. Assuming that the act was not consensual the medical examination of the victim conducted on 29-12-2015 led to a finding that there was human semen in her vaginal swab, the Scientific Report however failed to conclusively reveal that the semen was that of the Appellant. It was urged that considering that there was a gap of three days from the alleged date of sexual assault and the medical examination of the victim, the detection of semen in the vaginal swab was farfetched as she would have attended natures call, besides she was menstruating at the time. In the alternative, it could also give rise to a suspicion that in the interim period of three days she had another sexual encounter with a third person. That, although the victim was found to be above 18 years of age, the Learned Trial Court failed to alter the Charge that had been framed under the Protection of Children from Sexual Offences Act, 2012 (for short "POCSO Act"), hence causing prejudice to the Appellant as the cross-examination could not be incisive in view of the embargo under the POCSO Act. In the next leg of his argument, it was canvassed that the occupants of the vehicle in which the victim travelled have not deposed that the victim was forced into the vehicle by the Appellant as wrongly alleged by the victim. While contending that the statement of the victim should not be treated as gospel truth, reliance was placed on Raju and Others vs. State of Madhya Pradesh, 2008 15 SCC 133 . Strength was drawn from the decisions in Mohd. Ali alias Guddu vs. State of Uttar Pradesh, 2015 7 SCC 272, Manoharlal vs. State of Madhya Pradesh, 2014 15 SCC 587 , State of Rajasthan vs. Babu Meena, 2013 4 SCC 206 and Alamelu and Another vs. State represented by Inspector of Police, 2011 2 SCC 385 to buttress the other submissions of Learned Counsel. That, the alleged incident took place on a road where the victim had sufficient opportunity to escape, but she opted not to, on this count reliance was placed on Tula Ram Rai alias Gorey Rai vs. State of Sikkim, 2017 CrLJ 4693.

(3.) The contra arguments raised by the Prosecution to repel those of the Appellant were that there was no motive for the victim to incriminate the Appellant, a married man aged about 29 years with a family. The incident occurred at 5 p.m. on 26-12- 2015 and as is wont with people in the villages who are timid and lack exposure, she disclosed it to P.W.2 only on 27-12-2015, who for her part revealed it to the victim's father, P.W.10, on 28-12- 2015. That, a bare perusal of the evidence of the victim would clearly indicate that the offence was committed on her by the Appellant, besides, the Doctor's evidence reveals a blunt injury on the vagina of the victim. Had the act been consensual, the question of injury would not have arisen. Reliance was also placed on Section 114A of the Indian Evidence Act, 1872 (for short "the Evidence Act") and on the decision of State of Rajasthan vs. Roshan Khan and Others, 2014 2 SCC 476. It was further contended that no self-respecting woman would ever make a false allegation of having been raped and in this context, reliance was placed on the decision in Mohd. Imran Khan vs. State Government (NCT of Delhi), 2011 10 SCC 192. Placing reliance on State of Himachal Pradesh vs. Sanjay Kumar alias Sunny, 2017 2 SCC 51 and Vijay alias Chinee vs. State of Madhya Pradesh, 2010 8 SCC 191 it was put forth that the statement of the Prosecutrix has to be believed as it has been consistent. That, the delay in the lodging of the FIR has been explained inasmuch the victim informed P.W.2 only on the next day of the incident, who informed the victim's father on the following day. The father being a rustic villager reported the matter to the Panchayat of the area who summoned a meeting with P.Ws 5, 6, 7, 8, 9 and 10, whereupon on due consideration, P.W.10 was advised to report the matter to the Police. In the light of the submissions, the role of the Appellant in the commission of the offence having been established, the Appeal be dismissed.