THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
DATED : 8th MAY, 2017
-----------------------------------------------------------------------------------------------------SINGLE BENCH : HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
------------------------------------------------------------------------------------------------------
Crl.A. No.22 of 2016 (Jail Appeal)
Appellant
:
Tula Ram Rai @ Gorey Rai,
S/o Dik Bahadur Rai,
R/o Lower Pelling,
West Sikkim.
[Presently in Central Prison,
Rongyek, East Sikkim]
versus
Respondent
:
State of Sikkim
Appeal under Section 374 of the
Code of Criminal Procedure, 1973
-----------------------------------------------------------------------------------------Appearance
Mr. N. Rai, Senior Advocate with Ms. Tamanna Chhetri and Malati
Sharma, Advocates (Legal Aid Counsel), for the Appellant.
Mr. S. K. Chettri, Assistant Public Prosecutor for the StateRespondent.
------------------------------------------------------------------------------------------
JUDGMENT
Meenakshi Madan Rai, J.
1.
The
Appellant
is
before
this
Court,
assailing
the
Judgment and Order on Sentence, both dated 17-08-2015, of the
Learned Judge, Fast Track Court, South and West Sikkim, at
Gyalshing, in Sessions Trial (F.T.) Case No.09 of 2014, convicting
and sentencing him as follows;
(a)
to undergo rigorous imprisonment of seven years and to
pay a fine of Rs.1,000/- (Rupees one thousand) only,
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State of Sikkim
under Section 376 of the Indian Penal Code, 1860 (for
short “IPC”).
(b)
Simple imprisonment for a period of one year under
Section 506 of the IPC and
(c)
Simple imprisonment for a period of one year and fine of
Rs.5,000/- (Rupees five thousand) only, under Section
457 of the IPC.
The default stipulations appears jointly for Sections 376 and
457 of the IPC. The sentences of imprisonment were ordered to run
concurrently, duly setting off the period already undergone by the
Appellant.
2.
The Prosecution case is that, Exhibit 1, a written FIR was
received from P.W.1, the victim, on 08-07-2014, informing therein
that, on 07-07-2014 at around 10 p.m. while she was alone and
asleep in her house, the Appellant tore the plastic ceiling of her
house, entered therein and sexually assaulted her, threatening her
with death if she approached the Police.
On receipt of the
Complaint, it was duly registered as Gyalshing Police Station
(G.P.S.) Case No.36/2014 against the Appellant and investigation
taken up.
3.
Investigation so conducted revealed that the Appellant
was a labourer and distant relative of the victim who used to
frequent her house. That, a day before the incident, he had received
an amount of Rs.4,000/- (Rupees four thousand) only, from his
employer, one Phurzang Bhutia, with which he paid off his dues and
after partaking of liquor went to the house of the victim at around
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State of Sikkim
2200 hours, aware that she was alone. Meanwhile, the husband and
daughter of the victim being out in Darjeeling for personal work and
the victim being alone fell asleep. The Appellant entered the room
through the plastic ceiling of the victim‟s house and raped her
despite her cries for help, pursuant to which he slept in her room,
while the victim went to an adjacent prayer room and slept there.
Next morning, she reported the matter to P.W.6, the Ward
Panchayat and lodged Exhibit 1.
Meanwhile, the Appellant had
absconded and took shelter in the house of various relatives at
Gangtok, Tashiding and ultimately at Rongli, from where he was
taken into custody by the Rongli Police and eventually arrested at
Gyalshing by the Investigating Officer (for short “I.O.”). That, the
victim had been sexually assaulted by the Appellant about eleven
months prior to the instant incident which she had brought to the
notice of P.W.2, her husband who, however, took no action.
The
victim was medically examined, blood sample was drawn from the
Appellant and the Exhibits forwarded to State Forensic Science
Laboratory,
Tripura,
for
DNA
comparison.
On
Completion
of
investigation, Charge-Sheet was submitted against the Appellant
under Sections 376/506/323/457 of the IPC.
4.
The Learned Trial Court framed Charge against the
Appellant under Sections 376(2)(f), 376(2)(n), 506 and 457 of the
IPC.
On a plea of “not guilty”, the Prosecution examined thirteen
witnesses to establish its case. The Appellant thereafter was
examined under Section 313 of the Code of Criminal Procedure,
1973
(for
short
“Cr.P.C.),
to
enable
him
to
explain
the
circumstances appearing in the evidence against him, arguments
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were heard and the impugned Judgment and Sentence were
pronounced as detailed hereinabove.
5.
It is the contention of the Appellant before this Court
that infact the act was consensual which would be evident from the
fact that the Prosecution has failed to establish as to how the
Appellant came into her house through the ceiling. No threat was
held out to her before the commission of the rape as apparent from
Exhibit 1 and the person of the victim was devoid of any injuries,
except for some bruises detected on her genital. That, although
P.W.1 alleges rape by the Appellant, but the evidence of P.W.2, her
husband is to the effect that P.W.1 only told him that a fight had
ensued between them, apart from which she did not narrate any
other incident to him, thereby concealing the act from him for fear
of reprisal as it was consensual. P.W.2 is also unaware as to how
the ceiling came to be torn.
6.
The next argument canvassed was that the incident
occurred on 07-07-2014 at around 2200 hours, but remained
unreported to the Police until the following morning and despite the
allegation of sexual assault, she continued to remain in the same
house with the Appellant and infact slept in the next room while he
slept in the room where the offence was committed. The victim and
investigation indicate that she is related to the Appellant while
P.W.2 denies such relationship, leading to anomalies in the
Prosecution case. The evidence of P.W.1 also reveals that instead of
going to the Police, the next morning at around 9 a.m. she first
approached to the Panchayat Vice President, P.W.6, who advised her
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State of Sikkim
to report the matter to the Police. That, this act of the victim would
indicate that she first made an effort to affect a compromise, but as
P.W.6 did not respond positively, she approached the Police.
The
seizure of the articles of clothing from her have not been proved by
the Prosecution and although the DNA Report pertaining to
spermatozoa and blood being that of the Appellant may have tallied,
it is not relevant in the absence of proof of seizure of the
undergarment of the victim.
The Appellant did not flee away the
next morning, but was found working at a construction site at Rongli
where he was traced. Hence, the impugned Judgment and Order on
Sentence be set aside.
7.
For the Prosecution, the argument advanced was that
the offence was infact committed by the Appellant on holding out a
threat to the victim as apparent from her evidence. That, the plastic
ceiling being torn is indicative of the fact that the Appellant had
forcibly entered the house of the victim and after committing the
offence absconded from Gyalshing and was later traced at Rongli,
which also points to his guilt.
Reliance was placed on the decision
of Ranglal vs. State of Rajasthan1 and on State of Punjab vs. Gurmit
Singh and Others2
wherein it was held that the testimony of the
prosecutrix must be appreciated in the background of the entire
case and the Trial Court must be alive to its responsibility and be
sensitive while dealing with cases involving sexual molestations.
Therefore, the decision of the Learned Trial Court ought not to be
disturbed.
1.
2.
2006 CRI.L.J. 1453
(1996) 2 SCC 384
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8.
vs.
6
State of Sikkim
I have considered the submissions which were made at
length and given due consideration thereof.
I have also carefully
perused the documents, evidence on record and the impugned
Judgment and Order on Sentence.
9.
The question before this Court for determination would
be whether the Learned Trial Court erred in convicting the Appellant
under the aforesaid Sections?
10.
In order to arrive at a correct finding, it is essential to
carefully and meticulously traverse the evidence of the Prosecution
Witnesses.
11.
In the first instance, it is pertinent to point out that had
the Appellant decided to commit the offence he would obviously not
have told anyone of his intention and, therefore, the entire
Prosecution case depends on the evidence of the victim. Ofcourse, it
goes without saying that she is the only Prosecution Witness to the
offence. In this context, the Hon‟ble Apex Court in Wahid Khan vs.
State of Madhya Pradesh3
has held as follows;
“18. Thus, in a case of rape, testimony of a
prosecutrix stands on a par with that of an injured witness.
It is really not necessary to insist for corroboration if the
evidence of the prosecutrix inspires confidence and appears
to be credible. ………………………….”
12.
In Gurmit Singh2 the Apex Court observed that while
evaluating evidence in an offence of rape the Courts must remain
alive to the fact that in a case of rape, no self-respecting woman
would come forward in a Court to make a humiliating statement
3.
(2010) 2 SCC 9
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State of Sikkim
against her honour such as is involved in the commission of rape on
her. It was elucidated as follows;
“8. …………… The courts must, while evaluating
evidence, remain alive to the fact that in a case of rape, no
self-respecting woman would come forward in a court just to
make a humiliating statement against her honour such as is
involved in the commission of rape on her. In case involving
sexual molestation, supposed considerations which have no
material effect on the veracity of the prosecution case or
even discrepancies in the statement of the prosecutrix
should not, unless the discrepancies are such which are of
fatal nature, be allowed to throw out an otherwise reliable
prosecution case. The inherent bashfulness of the females
and the tendency to conceal outrage of sexual aggression
are factors which the courts should not overlook.
The
testimony of the victim in such cases is vital and unless
there are compelling reasons which necessitate looking for
corroboration of her statement, the courts should find no
difficulty to act on the testimony of a victim of sexual assault
alone to convict an accused where her testimony inspires
confidence and is found to be reliable. Seeking corroboration
of her statement before relying upon the same, as a rule, in
such cases amounts to adding insult to injury. Why should
the evidence of a girl or a woman who complains of rape or
sexual molestation, be viewed with doubt, disbelief or
suspicion? The court while appreciating the evidence of a
prosecutrix may look for some assurance of her statement to
satisfy its judicial conscience, since she is a witness who is
interested in the outcome of the charge levelled by her, but
there is no requirement of law to insist upon corroboration of
her statement to base conviction of an accused. The
evidence of a victim of sexual assault stands almost on a par
with the evidence of an injured witness and to an extent is
even more reliable. Just as a witness who has sustained
some injury in the occurrence, which is not found to be self
inflicted, is considered to be a good witness in the sense that
he is least likely to shield the real culprit, the evidence of a
victim of a sexual offence is entitled to great weight,
absence of corroboration notwithstanding. Corroborative
evidence is not an imperative component of judicial credence
in every case of rape. Corroboration as a condition for
judicial reliance on the testimony of the prosecutrix is not a
requirement of law but a guidance of prudence under given
circumstances. It must not be overlooked that a woman or a
girl subjected to sexual assault is not an accomplice to the
crime but is a victim of another person's lust and it is
improper and undesirable to test her evidence with a certain
amount of suspicion, treating her as if she were an
accomplice. ………………”
13.
With the above observations in mind, I now embark on
an examination of the evidence furnished. The Appellant, as per the
victim, was known to her and on the relevant night when she was
alone, at around 10.15 p.m. he entered her house through the
plastic roof and committed the offence on her. When she switched
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State of Sikkim
on the light she recognized the Appellant who threatened to kill her
if she reported the matter to the Police. She also found him to be
fully intoxicated and after committing the offence he fell asleep. In
the said situation, she left the room and went into the prayer room
of her husband, bolted the door from inside and slept.
The next
morning at around 9 a.m. she went to the house of the Panchayat
Vice President, P.W.6 to report the matter who advised her to
approach the Police, the offence being serious. She further claimed
to have seen the torn ceiling from where the Appellant made his
entry only in the morning. Considering that she has stated that he
entered from the ceiling and as no trapdoor exists therein being
admittedly made of plastic, so how the destruction was not
noticeable to her when he made the unconventional entry indeed
needs to be mulled over.
She also admitted that she has had no
physical relations with her husband after the birth of their daughter.
Admittedly, one Deepak, Mahesh and Arjun are her neighbours and
reside next to her house, but she did not take recourse to help from
them on the relevant night, although the Appellant, as per her, had
fallen asleep. She admits to being illiterate and thus would not be in
a position to read the contents of Exhibit 1, but apart from being
unable to identify Exhibit 1, she admits that its contents were not
read over to her.
She alleges rape by the Appellant prior to the
instant incident, but concedes that no report was made by her in the
belief that he would not repeat such an act. Her statement under
Section 164 of the Cr.P.C. and her deposition in Court do not
corroborate even if the former is to be looked into only for
corroborative purposes. P.W.2 appears to be unaware of the sexual
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assault, being uninformed of it by the victim who told him only of a
fight with the Appellant.
14.
The evidence of P.Ws 3 and 4 are of no assistance to the
Prosecution case and P.W.5 and P.W.9 alleged to be the seizure
witness for M.O.I to M.O.IV failed to shed light on the articles seized
or its ownership.
Further, the seizure witnesses were asked to
identify M.O.I to M.O.IV which are as follows;
(i)
M.O.I
-
Sum of Rs.270/- (Rupees two hundred
and seventy) only.
(ii)
M.O.II
-
Light coloured Kurta with yellow coloured
flower
(iii)
M.O.III
-
Yellow coloured Pyjama
(iv)
M.O.IV
-
Dark coloured Inner (lower)
When only the above four M.Os were alleged to be seized in the
presence of the two seizure witnesses, it cannot be fathomed as to
where Exhibit „C‟, the underwear, sent to the SFSL, Tripura,
emerged from. The I.O‟s evidence has made an effort to fill up the
lacuna by identifying the underwear as M.O.IA, but M.O.IA finds no
mention in the articles exhibited by the Prosecution as recorded in
the impugned Judgment. The report of P.W.12 the Deputy Directorcum-Assistant Chemical Examiner, Government of Tripura, in Exhibit
9 revealed that he examined Exhibit „C‟, one pink colour underwear,
allegedly of the victim and found seminal stains therein and found
the DNA therein to match the blood on the stained gauze cloth, said
to be obtained from the Appellant.
As P.W.5 and P.W.9 have no
inkling of the ownership of the articles seized, much less of the
underwear, tampering of the exhibits at the stage of investigation
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cannot be ruled out. P.W.7, the Gynaecologist, examined the victim
on 08-07-2014 at around 5.15 p.m., at the District Hospital,
Gyalshing and, inter alia, found tenderness in the abdomen and
lower back of the victim. She recorded as follows;
“On local examination:
1. Linear abrasion (bright red) about 1.5 cm over the labia
majora right side.
2. Redness present over the labia minora right side.
3. Old hymenal tear present.
…………………………
Final opinion: the above history and clinical findings
are suggestive of blunt injury, however, lab report prepared
by Dr. A. T. Sherpa shows absence of spermatozoa.”
Thus, apparently there are injuries over her genital, but the
fact of such injury being the result of rape has to be proved beyond
a reasonable doubt, which is not forthcoming.
15.
In view of the entire evidence on record, what can be
culled out is that the Appellant entered the room from the plastic
ceiling, the destruction of which remained unnoticed by the victim
till the next morning. P.W.13, the I.O. has failed to throw any light
on how this was achieved, thereby pointing to shoddy investigation.
According to the victim, after the incident the Appellant threatened
to kill her but he slept in the same room without inflicting any injury
on her. What needs to be mulled over is if the Appellant was in a
drunken stupor and fell asleep, subsequent thereto, why did she not
seek help from her neighbours, allegedly one Deepak, Mahesh and
Arjun.
Instead, she went into another room and seemingly slept
unperturbed.
It is indeed appalling that after such a horrific and
traumatic incident she would continue to remain under the same
roof with the Appellant that too only bolting the door from inside,
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State of Sikkim
but not taking steps to secure from the outside the door of the room
in which the Appellant slept. Neither the victim nor the I.O. have
enlightened the Court as to when the Appellant left the victim‟s
house. Evidently the victim left at 9 a.m. to inform the Panchayat
Vice President, what time the Appellant left is a mystery which
remained unearthed.
Another incongruity that emanates from her
evidence is that the next morning she heard the Appellant knocking
on the door to the room where she was, but she did not open it.
Investigation has failed to reveal the logical end of the acts of that
morning inasmuch as it is silent as to what transpired after he
knocked on the victim‟s door.
Also, one is aware that life in the
village starts at the wake of dawn, but evidently the victim besides
having no qualms and apprehensions about sleeping under the same
roof as the assailant, took her own time the next morning and went
to the house of P.W.6 only at 9 a.m.
16.
Thus, a careful assessment of the evidence on record
fails to inspire confidence to enable this Court to reach a finding that
the offence committed was of rape and not a consensual act.
In
view of the totality of the circumstances hereinabove, there appears
to be no credibility in the deposition of the victim regarding the
allegation of rape. Although a preponderance of probabilities exists,
but this does not suffice to establish the Prosecution case, which
must be proved beyond all reasonable doubt, which in the light of
the aforesaid discussions has failed to attain the benchmark.
17.
Consequently, the assailed Judgment and Sentence of
the Learned Trial Court deserves to be and is accordingly set aside.
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The Appeal succeeds and the Appellant is acquitted of the offences
under Sections 376, 506 and 457 of the IPC.
18.
Consequently, the Appellant be set at liberty forthwith,
unless required in any other case.
19.
Fine, if any, deposited by the Appellant as per the
assailed Order on Sentence of the Learned Trial Court, be refunded
to him.
20.
Copy of this Judgment be transmitted forthwith to the
Learned Trial Court for information along with the original records
related to this case.
Sd/( Meenakshi Madan Rai )
Judge
08-05-2017
Approved for reporting : Yes
Internet : Yes
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