Prem Rai @ Sambhu Rai vs State Of Sikkim

1 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

THE HIGH COURT OF SIKKIM: GANGTOK (Criminal Appellate Jurisdiction) ---------------------------------------------------------------------------------- SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE ---------------------------------------------------------------------------------- Criminal Appeal No. 40 of 2017

Prem Rai alias Sambhu Rai S/o Mr. Kewal Rai, R/o Tumin, Rajatar, Singtam, East Sikkim. .... Appellant

versus

State of Sikkim .... Respondent

-------------------------------------------------------------------------- Appeal under Section 374(2) of the Code of Criminal Procedure, 1973.

Appearance:

Mr. K. T. Tamang, Legal Aid Counsel for the Appellant.

Mr. S. K. Chettri, Assistant Public Prosecutor for the State-Respondent. -------------------------------------------------------------------------- JUDGMENT

(07.06.2019)

Bhaskar Raj Pradhan, J

1. The Appellant was the driver of the taxi hired by the

victim (P.W.7) and her two friends P.W.1 and P.W.2, all three

girls, on 15.05.2016 to go sightseeing in an around Gangtok.

However, pursuant to First Information Report (FIR) (exhibit-6)

lodged by the victim before the Officer in-charge of Sadar

Thana, Gangtok, Sikkim Police Inspector, Ton Tshering

Lepcha, Station House Officer (SHO) Phodong, Police Station, 2 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

North Sikkim and the Investigating Officer (P.W.23)

(Investigating Officer) registered a regular criminal case against

the Appellant for commission of rape, penetrative sexual

assault on a minor as well as for voluntary causing hurt. The

victim had alleged that the Appellant while taking them around

sightseeing had become violent with the victim's friend when

they desired to return as it was getting late. The Appellant

started demanding money and thereafter asked the victim's

friend to get off. By the time she was losing her senses and she

could neither hear nor speak. She alleged that she was

kidnapped by the Appellant "brutally beaten, slapped, hit by a

rod, pulled by my hair and raped in the car."

2. The investigation culminated in the charge-sheet filed on

24.08.2016 against the Appellant for commission of

penetrative sexual assault and voluntarily causing hurt.

3. On 19.09.2016 the learned Special Judge, POCSO Act,

2012, North Sikkim at Mangan charged the Appellant for three

indictments. Firstly, for voluntarily causing hurt on P.W.2 and

the victim by beating them brutally punishable under Section

323 of the Indian Penal Code, 1860 (IPC). Secondly, he was

charged for assaulting or using criminal force against P.W.2

and the victim intending to outrage their modesty punishable

under Section 354 IPC. Thirdly, he was charged for

committing penetrative sexual assault on the victim 3 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

punishable under Section 4 of the Protection of Children from

Sexual Offences, Act, 2012 (POCSO Act).

4. On 07.11.2016 the learned Special Judge framed two

more charges. He was charged for committing rape on the

victim punishable under Section 376 IPC. He was also charged

for using criminal force against the victim with the intention of

disrobing her and in fact, disrobing her punishable under

Section 354B IPC. The Appellant pleaded not guilty to all the

charges and claimed trial.

5. The Appellant has been convicted under Section 323 IPC

for voluntarily causing hurt to the victim and P.W.2. He was

also convicted under Section 354, 354B, 376 (1) of the IPC as

well as Section 3(a)/4 of the POCSO Act for commission of the

said offences on the victim by the learned Special Judge.

6. The Appellant was sentenced in the following manner:

 To undergo rigorous imprisonment for a period of eight years and to pay a fine of Rs.30,000/- for the offence(s) under Section 376(1) of the IPC and Sections 3(a)/4 of the POCSO Act, 2012. In default to pay the fine, to undergo simple imprisonment for a further period of six months;

 To undergo simple imprisonment for a period of 5 years and to pay a fine of Rs.20,000/- for the offence under Section 354 IPC. In default to pay the fine, to undergo simple imprisonment for a further period of six months;

 To undergo simple imprisonment for a period of three years and to pay a fine of Rs.25,000/- for the offence under Section 354B IPC. In default to pay the fine, to undergo simple imprisonment for a further period of six months; and

 To undergo simple imprisonment for a period of one year for the offence under Section 323 IPC.

4 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

7. The learned Special Judge directed that the period of

imprisonment shall run concurrently and that the

imprisonment already undergone shall be set off. The fine

imposed was directed to be applied towards the payment of

compensation to the victim. Considering the nature of the case

the learned Special Judge also deemed it appropriate to

recommend the award of compensation of Rs.1 lakh to the

minor victim to be paid out of the Victim Compensation Fund.

8. The Appellant is aggrieved by the impugned judgment

and the order on sentence both dated 26.08.2017.

9. Heard Mr. K. T. Tamang, learned Legal Aid Counsel for

the Appellant and Mr. S. K. Chettri, learned Additional Public

Prosecutor for the Respondent.

10. Mr. K. T. Tamang at the outset conceded that the

minority of the victim had been established by the prosecution.

The learned Special Judge has also held that the prosecution

has been able to prove that the victim was a minor at the time

of the incident. The minority of the victim not being in dispute

this Court shall examine the evidence let by the prosecution to

appreciate if the learned Special Judge had come to the correct

conclusion in convicting the Appellant and sentencing him

accordingly.

11. The victim as well as her two friends - P.W.1 and P.W.2

identified the Appellant in Court. The cross-examination of

these witnesses reflects that the identification of the Appellant 5 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

as the driver of the taxi hired by them on 15.05.2016 is not

disputed. The prosecution has cogently proved that it was in

fact the Appellant who had driven the victim and her two

friends P.W.1 and P.W.2 on the fateful day.

12. The victim gave a detailed narration of what transpired

that day on her, P.W.1 and P.W.2. On the date of the incident

they had got up late. They wanted to visit local tourist points

in and around Gangtok. They came out of the hotel (xxx name

of the hotel withheld) and hired a taxi of the Appellant. They

visited few places including a monastery. P.W.2 got out and

brought some local „momos‟ for them. The Appellant got some

chips and water. He then suggested that they should visit

seven sister falls located near Gangtok. He somehow convinced

them and they started proceeding towards the said water fall.

On the way they came across another water fall. They stopped

the vehicle and clicked some photographs and thereafter

proceeded further. It was already dark by then. After some

distance they were caught in a terrible traffic jam. As it was

late they told the Appellant that they wanted to go back. He

however, moved further and drove the vehicle rashly. By the

time she was feeling nauseous probably due to the „momos‟

and water that she had consumed. She could hear the

Appellant and P.W.2 arguing seriously about the matter. She

did not remember what happened after that but she could say

that the vehicle was still moving. After sometime when she 6 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

woke up she realized that only she and the Appellant were in

the vehicle. The Appellant had reclined her seat backwards

and her underwear was missing. The Appellant was smoking

on his seat. She somehow managed to get out of the vehicle

but it was already dark. The Appellant came out and caught

her by her hand and hair. He dragged her back to the car.

Once she was inside the Appellant forced himself on her and

put his penis into her vagina. There was some penetration

also. He was also slapping her. She kept on kicking him but to

no avail. She was also crying with pain. After he raped her he

started driving again. She did not remember which direction

they were proceeding but on the way some people stopped

their vehicle. They had come looking for her. She was then

taken to some police station.

13. The defence cross-examined the victim. It was suggested

that they had purchased liquor that day before proceeding to

seven sister water fall. It was suggested that she was drunk on

the relevant day. Both the allegations were denied by the

victim. The defence also suggested that the Appellant had

gone to another shop to buy mineral water as the shop where

P.W.2 went out to get „momos‟ did not have mineral water. It

was suggested that the water which was brought by the

Appellant was properly sealed. These suggestions were also

denied by the victim. The defence suggested that the victim

had consented to get physical with the Appellant which was 7 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

also denied by her. The detailed narration of facts by the victim

(P.W.7) constituting the core of the offences alleged have not

been assailed by the defence.

14. P.W.1 and P.W.2 also deposed about what transpired on

the relevant day. P.W.1 remembered the date of the incident.

P.W.2 only remembered that it was during April-May, 2016

when the incident took place. Their deposition corroborates the

evidence of the victim of having hired the Appellant's taxi for

sightseeing in and around Gangtok and travelling to a

monastery and to the water falls in the North District. Their

depositions also corroborate the victim's testimony that when

it started getting dark they asked the Appellant to turn and

drop them back to the hotel. They corroborate the victim's

deposition that the Appellant got agitated and was reluctant to

turn back. P.W.1 deposed that when they insisted the

Appellant became angrier and punched P.W.2 on her face.

P.W.2 deposed that when he got agitated he kept on

proceeding towards the second water fall. She got angry and

started discussing with him. The Appellant became aggressive

and even hit her on her face due to which she started bleeding.

Both P.W.1 and P.W.2 deposed that thereafter the Appellant

made them get out of the vehicle and sped away with the

victim. They somehow managed to reach a nearby house/hotel

with some people in it. They narrated the incident to them.

The police arrived thereafter and took them for medical 8 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

treatment to a hospital. Later that night the victim and the

Appellant were brought by the police to the Phodong, Police

Station.

15. The cross-examination of P.W.1 and P.W.2 by the defence

also leads this Court to believe that the Appellant denied only

certain details of how the events transpired but not the fact

that the Appellant was the driver who drove them on

15.05.2016 and that the incident did in fact occur. The

defence had suggested to P.W.2 that she had sustained injury

because of the fall while walking in the dark which was denied

by her.

16. The testimonies of the victim, P.W.1 and P.W.2 narrate

what transpired on that day in great detail. Most of it

remained unassailed.

17. The father (P.W.2) of P.W.1 confirmed that he was

running the hotel where the victim and P.W.2 had stayed when

they came during May, 2016. He also confirmed that on

15.05.2016 all the three of them had gone out sightseeing. He

was in touch with her daughter on her mobile. He deposed

that around 9-9.30 p.m. he could talk to her. P.W.1 told him

that she and her friends had hired a taxi for sightseeing and

were at some unknown place. The driver of the vehicle was

about to physically assault her and her friends. P.W.1 also told

him that the driver had taken away the victim and had

abandoned P.W.1 and P.W.2 at the same place. P.W.1 could 9 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

not tell him her exact location. The phone got disconnected. He

kept trying but could not talk to her. After sometime he did

speak to her and P.W.1 informed him that she was at Phodong.

He told her to take shelter in nearby houses. He then went to

Sadar Police Station, Gangtok and informed the police. The

Sadar Police Station contacted the Phodong police. In the

meantime he received a phone call from an unknown number.

It was from a local resident of Phodong who told him that

P.W.1 and P.W.2 had taken shelter in his place. He gave the

phone to the Police Officer at the Sadar Police Station. After

that he was instructed by the said Police Officer to go to

Phodong Police Station. He proceeded to Phodong Police

Station along with his friend who had accompanied him to

Sadar Police Station. They took two vehicles with them. On the

way they came across the vehicle of the Appellant. When it was

stopped they saw the Appellant and the victim in it. The victim

seemed panicky. She told him that she had been sexually

assaulted by the Appellant. They brought the Appellant and

the victim to the Phodong Police Station where he met P.W.1

and P.W.2. Later they came back to Sadar Police Station. The

FIR in the matter was prepared by the victim in his presence

and filed at Sadar Police Station. During cross-examination he

admitted that he had not mentioned about the victim telling

him that she was sexually assaulted by the Appellant to the

police after being confronted with his statement recorder under 10 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

Section 161 of the Code of Criminal Procedure, 1973 (Cr.P.C.).

He also admitted that in the said statement there is no

mention about his daughter informing him that the victim had

been taken away by the Appellant. Except these two

contradictions the father's deposition stands firm.

18. Mohan Pradhan (P.W.6) was working in a hotel (xxx

name of the hotel withheld) located at Tumlong between

Phensong and Phodong, North Sikkim. One night while he and

the hotel owner were closing the hotel two (xxx ethnic identity

withheld) girls came there crying for help. When they inquired

from them they told them that they had been left at a lonely

place by their taxi driver. He deposed that the girls told them

they had hired a taxi. The driver had made them come towards

Phodong and abandoned them there after some arguments

between them. The girls also told them that their friend had

been taken away by the Appellant in his vehicle. They

contacted the Sadar Police Station. After sometime police

personnel from Phodong Police Station came and took the girls

to the Phodong Police Station. During cross-examination he

admitted that when they inquired from the (xxx ethnic identity

withheld) girls if they had consumed alcohol they denied but

they did tell them that their friend who was in the vehicle had

consumed duet (alcohol) and that she was drunk.

19. Chudup Bhutia (P.W.22) was the owner of the hotel (xxx

name of the hotel withheld). He deposed that two girls had 11 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

come one night fully drunk. This was about a year ago. One of

them had an injury on her forehead. He allowed them to come

in and offered them food and clothes. They told him that they

had been abandoned by a taxi driver when they did not agree

to go further with him. They also told him that they had one

more friend who wanted to go further with the driver and as

such did not come with them. He testified that on verification

they told him that their friend had taken alcohol. They

somehow managed to contact their guardian. He informed the

Sadar Police Station about the matter. Later some police

personnel came and took the girls with them. At this stage the

learned Prosecutor sought permission to declare him hostile.

Permission was granted and he was cross-examined by the

learned Prosecutor. He then admitted he had not stated to the

police that the two girls had told him their friend wanted to go

further with the Appellant. No suggestion, however, was made

by the prosecutor that he had lied about it. He was also cross-

examined by the Appellant's Counsel. On such cross-

examination he admitted the two girls had told him that since

their friend and the Appellant had consumed alcohol they,

most probably, had fallen in love. He admitted that he had

gone to Kolkata the following morning of the incident and

returned only after 10-12 days. He admitted that he had never

seen the Appellant before the day of his examination in Court. He admitted that the girls had told him that their friend and 12 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

the driver had consumed alcohol which he had mentioned in

his statement to the Police. He admitted that the two girls did

not tell him about their friend being forcefully taken by the

Appellant or of being assaulted by him. The deposition of

Chudup Bhutia (P.W.22) regarding the two girls telling him

that since their friend and the Appellant had consumed

alcohol they, most probably, had fallen in love cannot be

believed. However, his evidence, to the extent it finds

corroboration from the statement of Mohan Pradhan (P.W.6)

and other witnesses can be relied upon.

20. Ash Bahadur Rai (P.W.14) was posted at the Phodong

Police Station during May, 2016. He deposed that on

15.05.2016 at around 11 p.m. the Police Station received

information from Sadar Police Station, Gangtok about three

girl tourists from (xxx name of place withheld) having come

towards Phodong in a taxi and being left stranded by the

driver. The two girls were reportedly at the hotel (xxx name of

hotel withheld) along with the police team. On reaching there

they saw the two girls. They told them that their friend had

been taken away by the concerned driver i.e. the Appellant.

They accordingly, brought the two girls to the Phodong Police

Station. Later they were handed over to their guardians after

executing a Handing/Taking Memo (exhibit-23).

21. The Senior Medical Officer (P.W.10) at the STNM Hospital

examined P.W.2 on 16.05.2016 at around 9.55 a.m. On 13 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

examination an incised cut injury on her left temporal area

was detected and dressed. The injury was simple in nature.

The Medical Slip (exhibit-17) and the Medico-Legal

Examination Report (exhibit-18) prepared by the Senior

Medical Officer (P.W.10) and proved by him confirm the said

injury on P.W.2.

22. Section 53A of the Cr.P.C. provides for examination of

person accused of rape by a doctor. A strict compliance of the

said provision coupled with the keen observations of the doctor

would ensure the establishment of truth. The Appellant was

also examined by Senior Medical Officer (P.W.12) at the STNM

Hospital on 16.05.2016. He found no injury on him. However,

some smell of alcohol was noticed in his breath. The Medical

Slip (exhibit-19) prepared by the Senior Medical Officer

(P.W.12) and proved by him confirms this fact.

23. On 16.05.2016 at around 10.34 a.m. Dr. O.T. Lepcha,

(P.W.9) examined the Appellant a few hours after the alleged

sexual assault and prepared a Medico-Legal Examination

Report (exhibit-16). On the Appellant's examination he noted

the following injuries:-

"Injuries over the body:

1. Oval shaped reddish blue contusion (? bite mark) over the right lateral aspect of chest just below the (R) clavicle measuring 3 x 1.5 cm.-[on being inquired he states it was a kiss mark.]

2. Linear shaped contusion 4 x 0.8 cm just above injury no.1 4 cm above.

14 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

3. No other injuries over the body.

Genitals:

1) Pubic hair normal, no matting seen.

2) Smegma absent.

3) No sign of any injuries over the penile shaft.

4) Penile shaft normal, no organomegaly.

Opinion:

From the given history, physical examination, there is nothing to state that the person is incapable of sexual intercourse."

24. During cross-examination Dr. O. T. Lepcha (P.W.9)

clarified that the fact that the contusion at serial no.1 was

reddish blue would suggest that it was sustained within 12

hours immediately preceding the medical examination. This

clarification would lead the contusion directly to the time of

the alleged incident.

25. The Appellant's physical capability of performing sexual

act was answered in the affirmative by Dr. O. T. Lepcha

(P.W.9). He noticed two injuries on the Appellant as indicated

above. The absence of smegma noticed by Dr. O. T. Lepcha

(P.W.9) in the examination of the Appellant within twenty four

hours of the alleged incident would have been an indicator to

his sexual activity but the Dr. O. T. Lepcha (P.W.9) did not

venture an opinion based on that. The injuries on the

Appellant do indicate physical contact.

26. Section 164A of the Cr.P.C. provides for medical

examination of the victim of rape. The victim was also 15 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

examined on 16.05.2016 at around 11.15 a.m. The

Gynaecologist (P.W.15) deposed that when he examined the

victim he found four fresh bruise marks purple in colour in

front part of her neck which seemed to have been sustained

within the preceding twelve hours. Apart from that he did not

detect any injury on her person including her private part. On

her genital examination he found there was no fresh injury.

There was an old healed hymeneal tear and the hymen

admitted one finger. No bleeding or injuries were seen in the

anal/perianal area. He collected her vaginal wash and

forwarded it for pathological examination for presence of

spermatozoa. Later, the concerned cytopathology report was

received which indicated that no spermatozoa was detected in

the vaginal wash. The Gynaecologist (P.W.15) therefore, gave

the final opinion on 20.05.2016 stating that no clinical

evidence of "recent forceful sexual intercourse" as the

laboratory report received did not show spermatozoa in the

sample examined. During cross-examination he admitted that

there was nothing to suggest that they had been recent forceful

vaginal penetration. He deposed that normally spermatozoa is

detected up to twenty four to thirty six hours however, no

spermatozoa was detected in the vaginal wash. On the

suggestion of the defence he also admitted that had there been

any sexual intercourse with the victim she would have

certainly sustained some bruises in the vagina and the 16 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

neighbouring areas. He honestly admitted that he did not

conduct blood test on the victim in order to verify if she had

consumed any sedatives or alcohol.

27. The fact that no spermatozoa were detected was also

confirmed by the Pathologist (P.W.8) through his report

(exhibit-15) dated 16.05.2016.

28. The day after the incident, on 16.05.2016 at the Kabi

outpost, certain seizures were made from the Appellant in the

presence of two witnesses. They were the vehicle, its key, its

R.C. book and other documents along with one grey colour

ladies underwear with black strap and one pair of ladies

slippers by the I.O. The I.O. deposed that the underwear of the

victim and her slippers were seized from the concerned vehicle

of the accused along with its documents. He deposed that the

underwear was packed and sealed after the seizure.

29. Purna Bahadur Bishwakarma (P.W.3) and Ashim Rai

(P.W.6) deposed that while they were travelling in their vehicles

to Phodong they were stopped by the police at the Kabi police

outpost and requested to stand as witnesses. Except for some

minor variations both of them testified that the police had

seized the vehicle, one ladies underwear (panty) and ladies

slipper from the said vehicle. Seizure Memo (exhibit 5) dated

16.05.2016 records the seizures.

30. The incident is of the late evening of 15.05.2016. The

seizure is dated 16.05.2016 at around 7.00 p.m. from the Kabi 17 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

outpost. The I.O. has deposed about how the seizure was

affected. The two seizure witnesses corroborate him. It is

incontrovertible that the vehicle was the one involved in the

incident of 15.05.2016. The victim did identify her underwear

as well as her slippers which were found in the vehicle and

seized at the Kabi outpost. The victim and her friends P.W.1

and P.W.2 were not locals familiar with the area. However, they

did depose about going to the North District and ultimately

being brought to the Phodong Police Station. The seizure of the

victim's underwear and the slippers cannot be doubted.

31. The I.O. deposed that he seized the Appellant's boxer

shorts which he was wearing as underwear from the STNM

Hospital in the presence of two witnesses. The Medico-Legal

Examination Report (exhibit-16) of the Appellant also records

that one checked printed undergarment was handed over to

the police by Dr. O.T. Lepcha (P.W.9) - the Medico-Legal

Consultant at the STNM Hospital. Seizure Memo (exhibit-28)

dated 16.05.2016 records the red and white boxer shorts of

the Appellant were seized at the STNM Hospital. Dr. O. T.

Lepcha (P.W.9) did not depose about the boxer shorts but

exhibited the Medico-Legal Report (exhibit-16) of the Appellant

which records the fact. The seizure was in the presence of

Laku Tshering Lepcha (P.W.18) and Palzor Wangyal Bhutia

(P.W.19) both from the STNM Hospital. Both the witnesses

identified their signature on the Seizure Memo (exhibit-28) but 18 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

hesitated to identify the boxer shorts. Unmistakably, the

boxer shorts were of the Appellant.

32. The I.O. also deposed that he seized the blood samples of

the Appellant and the victim (P.W.7) as well as her vaginal

wash from STNM Hospital. He said that the victim's blood

sample was collected on 18.05.2016 and the Appellant blood

sample was seized on 07.06.2016, both from the STNM

Hospital. Seizure Memo (exhibit-28) dated 18.05.2016 records

the seizure of the blood sample and the vaginal wash of the

victim from STNM Hospital in the presence of Laku Tshering

Lepcha (P.W.18) and Palzor Wangyal Bhutia (P.W.19). They

identified their signatures on the Seizure Memo (exhibit-28)

but not the items that were seized. The Gynaecologist (P.W.15)

confirmed that the vaginal wash was collected and sent for

examination.

33. Seizure Memo (exhibit-30) dated 07.06.2016 records the

seizure of blood sample of the Appellant at the STNM Hospital

and handed over by Dr. O. T. Lepcha (P.W.9). One of the

witnesses to the Seizure Memo (exhibit-30), Rinzing Bhutia of

the Police Department, was not examined. Laku Tshering

Lepcha (P.W.18) identified his signature thereon but the blood

sample was not drawn in his presence. Dr. O.T Lepcha (P.W.9)

was examined. He said nothing about the seizure of the blood

samples of the victim as well as the Appellant. Even the victim

did not depose about the collection of her blood sample and 19 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

her vaginal wash. The seizure of the blood samples of the

victim and the Appellant as well as the vaginal wash of the

victim have not been convincingly established by the

prosecution.

34. The Appellant boxer shorts, the victim's underwear and

her vaginal wash collected by the Gynaecologist (P.W.15) and

their alleged blood samples were forwarded to the Regional

Forensic Science Laboratory (RFSL), Saramsa for analysis. The

RFSL report (exhibit-21) was received. Pooja Lohar (P.W.13) is

the Scientific Officer in the Biology division of the RFSL,

Saramsa (Scientific Officer) who examined the underwear of

the victim, the boxer shorts of the Appellant, the alleged blood

samples of both the victim and the Appellant and the vaginal

wash of the victim. She opined that human semen was

detected in both the victim's underwear as well as the

Appellant boxer shorts. No blood, semen or body fluid was

detected in the vaginal wash of the victim.

35. Since the prosecution failed to establish the collection of

blood samples of the victim as well as the Appellant, the RFSL

report to that extent cannot help the prosecution. However, the

seizure of the victim's underwear from the vehicle and its

identification by her is unquestionable. The seizure of the

Appellant's boxer shorts is also evident. The Scientific Officer

detected human semen on both the victim's underwear as well

as the Appellan't boxer shorts. Mr. K. T. Tamang submitted 20 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

that since there was a gap between the alleged incident and

the seizures it cannot be said with certainty that the semen

detected in the victim's underwear was that of the Appellant.

He further submitted that the prosecution had failed to

establish that blood sample had been collected from the

Appellant and the blood group of the Appellant was the same

as the blood group in the semen detected in the victim's

underwear. The learned Special Judge was also hesitant to rely

upon the seizure of the underwear and the RFSL report as

admittedly it was lying in the vehicle of the accused for 19-20

hours and the vehicle itself was lying in open space at the Kabi

out post. Although the defence has cross-examined the I.O.

and suggested that the vehicle was lying in the open space at

Kabi outpost for about 19-20 hours however, no suggestion

was made that the underwear had been tampered with. The

victim's deposition that her underwear was missing when she

woke up in the vehicle remained undisputed. Admittedly, the

Appellant was the only male in the vehicle where the incident

took place. It is established that the underwear found in the

vehicle was of the victim and quite obviously the semen

detected therein was of the Appellant. It is true that the

prosecution failed to prove that the blood group of human

semen detected in the underwear was the same as that of the

Appellant. However, it would be too farfetched to presume that

the prosecution or anybody else, without any proven animus 21 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

against the Appellant, would have planted the victim's

underwear with human semen and then the victim's

underwear in the vehicle of the Appellant between the time of

his arrest and the seizure. The boxer shorts which were worn

by the Appellant when he was arrested and examined at the

STNM Hospital were also detected with human semen which

obviously was his own.

36. Mr. K. T. Tamang submitted that the victim's testimony

required corroboration as it is seen that she had suppressed

about consuming alcohol. He would rely upon the judgments

of the Supreme Court in re: Ramdas v. State of Maharashtra1,

Tameezuddin v. State (NCT of Delhi)2 and Mohd. Ali v. State of U.P.3

37. The ratio decidendi of the three judgments cited by Mr. K.

T. Tamang is that conviction in a case of rape can be based

solely on the testimony of the victim. The testimony must be

truthful and there should be no shadow of doubt over her

veracity. It cannot, however, be held that every victim's

evidence must be accepted even if the story is improbable and

belies logic. The testimony of a victim of rape has to be placed

on a higher pedestal than even an injured witness, but when

the Court finds it difficult to accept the victim's version

because it is not irreproachable, search for direct or

circumstantial evidence to lend assurance to her testimony

must be undertaken.

1 (2007) 2 SCC 170 2 (2009) 15 SCC 566 3 (2015) 7 SCC 272 22 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

38. The defence has taken the plea that the victim, P.W.1 and

P.W.2 had consumed alcohol which fact had been suppressed.

The Medico-Legal Examination Reports of P.W.1 (exhibit-20)

and P.W.2 (exhibit-18) both dated 16.05.2016 records that

their breath did not smell of alcohol. However, during cross-

examination, the I.O. admitted that he had mentioned in his

charge-sheet about the place and the shop from where alcohol

was purchased by the Appellant and the two friends of the

victim. He admitted that the shop owners name is Rita Devi

Karki (P.W.5) whose statement he had also recorded. He

admitted that Rita Devi Karki (P.W.5) had revealed that on

15.05.2016 at around 4.30 p.m. one Nepali boy and two (xxx

ethnic identity withheld) girls had come to a shop and bought

two half bottles of duet (alcohol). He also admitted Rita Devi

Karki (P.W.5) had disclosed that from the total amount of

Rs.280/- for the said alcohol only Rs.100/- was paid by the

Nepali boy and Rs.180 by the two (xxx ethnic identity withheld)

girls. The I.O. admitted that no sedative or other chemical

substance were found in the blood of the victim on forensic

examination which could substantiate the claim of the victim

that she was served sedative through mineral water which

made her unconscious. Rita Devi Karki (P.W.5) was examined

by the prosecution. She did not recognise the Appellant nor

remember seeing him earlier. She also did not remember what

she had stated to the police although she admitted having 23 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

given a statement. She did not remember the (xxx ethnic

identity withheld) girls who had come to her shop. However,

during cross-examination she remembered that two (xxx

ethnic identity withheld) girls had bought some duet/gin from

her shop during and around the time when her statement was

taken by the police. The Gynaecologist (P.W.15) who examined

the victim and prepared the Medico-Legal Examination Report

(exhibit-24) did not mention in his deposition that he had

noted in his report that there was no breath smell of alcohol.

The admission made by the I.O., Mohan Pradhan (P.W.6) as

well as the deposition of Rita Devi Karki (P.W.5) does give an

impression that on that particular day the Appellant and the

victim's friends had purchased alcohol and that the victim had

not been sedated but had consumed alcohol as argued by Mr.

K. T. Tamang. Even if it is presumed that the victim had

consumed alcohol the otherwise detailed testimony of the

victim, P.W.1 and P.W.2 cannot be discarded. Further, the

victim's deposition is corroborated by both oral as well as

material evidence.

39. Mr. K. T. Tamang next submitted that where medical

evidence goes so far that it completely rules out all possibilities

of ocular evidence being true, ocular evidence may be

disbelieved. He relied upon the judgment of the Supreme Court

in re: Abdul Sayeed v. State of M.P.4. The same proposition of law

was followed by the Supreme Court in re: Bhajan Singh Alias 4 (2010) 10 SCC 259 24 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

Harbhajan Singh v. State of Haryana5, Gangabhavani v. Rayapati

Venkat Reddy & Ors.6, Dayal Singh v. State of Uttaranchal7,

Radhakrishna Nagesh v. State of Andhra Pradesh8, Solanki

Chimanbhai Ukabhai v. State of Gujarat9 and Punjab Singh v. State

of Haryana10.

40. It is settled preposition that where prosecution witness's

testimonies are totally inconsistent with medical evidence it

amounts to a fundamental defect in the prosecution case and

if not reasonably explained may discredit the case of the

prosecution. Opinion of the medical witness should be tested

by the Court and it may not be the last word on it. If the

opinion given by a medical witness is not consistent and

probable, the Court does not necessarily have to go by it. It

would not be correct to accord undue primacy to the opinion of

medical witness to exclude eye witnesses account tested

independently. When eye witness account is credible medical

opinion cannot be accepted as conclusive. Eye witness account

must be carefully assessed and evaluated for its credibility.

Though, ocular testimony of a witness has greater evidentiary

value vis-à-vis medical evidence, when the medical evidence

makes the ocular evidence inprobable that becomes a relevant

factor. If the medical evidence completely rules out all

possibilities of ocular evidence being true, ocular evidence may

5 (2011) 7 SCC 421 6 2013 CRI. L.J. 4618 7 (2012) 8 SCC 263 8 (2013) 11 SCC 688 9 (1983) 2 SCC 174 10 (1984) Cri. LJ 921 (SC) 25 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

be disbelieved. There is always a possibility of some variations

in the exhibits, medical and ocular evidence. However, not

every minor variation and inconsistency would tilt the balance

in favour of the accused. When contradictions are of serious

nature and destroys the substantive case of the prosecution it

may provide advantage to the accused. The expert opinion

must be given a great sense of acceptability but the Court

cannot be guided by every such opinion even if it is

perfunctory, unsustainable and are the result of a deliberate

attempt to misdirect the prosecution.

41. Mr. K. T. Tamang vehemently argued that the solitary

ocular testimony of the victim is completely negated by the

victim's Medico-Legal Examination Report (exhibit-24). He

submitted that the nature of the allegation of rape alleged

would necessary result in injuries on the victim's genitals and

more so on the labia majora.

42. The learned Special Judge has held that the medical

evidence which proved the injuries on the person of the victim

goes on to support her claim that criminal force has been used

on her and that it also makes the evidence more credit worthy.

Although the Gynaecologist (P.W.15) had stated in cross-

examination that there was nothing to suggest there had been

forceful vaginal penetration the learned Special Judge noticed

that the case was not full of penetration and therefore opined

that partial penetration also amounts to rape. Relying upon 26 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

the judgment of the Supreme Court in re: Om Prakash v. State

of Uttar Pradesh11 the learned Special Judge held that in cases

involving rape, it is no ground to disbelieve the trustworthy

testimony of the victim and if found credit worthy it would be

sufficient to prove the case of rape.

43. In re: Aman Kumar v. State of Haryana12 the Supreme

Court held:

"7. Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little (see Joseph Lines, IC&K 893). It is well known in the medical world that the examination of smegma loses all importance after twenty-four hours of the performance of the sexual intercourse. [See S.P. Kohli (Dr) v. High Court of Punjab and Haryana [(1979) 1 SCC 212 :

1979 SCC (Cri) 252] .] In rape cases, if the gland of the male organ is covered by smegma, it negatives the possibility of recent complete penetration. If the accused is not circumcised, the existence of smegma around the corona gland is proof against penetration, since it is rubbed off during the act. The smegma accumulates if no bath is taken within twenty-four hours. The rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration. It is well settled that the prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence of rape. In examination of genital organs, state of

11 (2006) 9 SCC 787 12 (2004) 4 SCC 379 27 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

hymen offers the most reliable clue. While examining the hymen, certain anatomical characteristics should be remembered before assigning any significance to the findings.

The shape and the texture of the hymen is variable. This variation, sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand, sometimes the hymen may be more firm, less elastic and gets stretched and lacerated earlier. Thus a relatively less forceful penetration may not give rise to injuries ordinarily possible with a forceful attempt. The anatomical feature with regard to hymen which merits consideration is its anatomical situation. Next to hymen in positive importance, but more than that in frequency, are the injuries on labia majora. These, viz. labia majora, are the first to be encountered by the male organ. They are subjected to blunt forceful blows, depending on the vigour and force used by the accused and counteracted by the victim. Further, examination of the female for marks of injuries elsewhere on the body forms a very important piece of evidence. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376 IPC."

44. In re: Yerumalla Latchaiah v. State of A.P.13 a three judge

bench of the Supreme Court while passing an order of

acquittal held:-

"3. In the present case, age of the victim was only eight years at the time of alleged occurrence. Immediately after the occurrence, she was examined by Dr. K. Sucheritha (PW 7) who has stated in her evidence that no injury was found on any part of the body of the victim, much less on private part. Hymen was found intact and the doctor has specifically stated

13 (2006) 9 SCC 713 28 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

that there was no sign of rape at all. In the medical report, it has been stated that vaginal smears collected and examined under the microscope but no sperm detected. The evidence of the prosecutrix is belied by the medical evidence. In our view, in the facts and circumstances of the present case, the High Court was not justified in upholding the conviction."

45. Mr. K. T. Tamang relied upon the above observation to

buttress his argument that in view of the medical evidence of

the victim the ocular evidence must be discarded.

46. The difference in the facts of the present case and the

facts of in re: Yerumalla (supra) where the doctor had

categorically stated in her evidence that no injury was found

on any part of the body of the victim much less on private part

must be noticed. It is also important to keep in mind that in

re: Yerumalla (supra) the victim was 8 years old and the doctor

had also found that the hymen was intact. The doctor had

specifically stated that there was no sign of rape at all.

Further, that vaginal smear collected and examined under the

microscope did not detect any sperm.

47. In the present case the Gynaecologist (P.W.15) who

examined the victim did find four bruise marks purple in

colour, in front part of her neck which seemed to have been

sustained within the preceding twelve hours. Dr. O. T. Lepcha

(P.W.9) who examined the Appellant a few hours after the

incident noted that even he had oval shaped reddish blue

contusion (like bite mark) over the right lateral aspect of the

chest just below the clavicle measuring 3 x 1.5 cm. It is his 29 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

evidence that on inquiry the Appellant told him that it was a

kiss mark. Dr. O.T. Lepcha (P.W.9) also noticed linear shaped

contusion measuring 4 x 0.8 cm about 4 cm above the oval

shaped reddish blue contusion on the Appellant. The Appellant

was given an opportunity to explain this circumstance

appearing against him during his examination under Section

313 Cr.P.C. However, he offered no explanation but merely

stated that he was medically examined without any reason.

The contusions on the Appellant and the bruise marks would

thus date back to the time of the alleged sexual assault.

48. The Gynaecologist (P.W.15) opined that there was no

clinical evidence of "recent forceful sexual intercourse" as the

laboratory report received did not show spermatozoa in the

sample examined. However, the Gynaecologist (P.W.15) has

provided no material to indicate if the victim was asked

whether she had washed herself during the interregnum

between the sexual assault and the medical examination the

next day. The absence of spermatozoa in the vaginal wash of

the victim thus cannot cast doubt on the credit worthiness of

her evidence.

49. A Textbook of Medical Jurisprudence and Toxicology

by Jaising P. Modi, 24th edition, Chapter 31 states that:

Page 637.- "Rape is a crime and not a medical diagnosis to be made by the medical officer treating the victim. It is a charge made by the investigating officer, on a complaint by the victim. The only statement that can be made by the medical officer is whether there 30 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one." Page 639.- "To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with the emission of semen and the rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda, with or without the emission of semen, or even an attempt at penetration is quite sufficient for the purpose of law. It is, therefore, quite possible to commit legally, the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case, the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed." Page 639.- "The ingredients that are essential for proving a charge of rape are the accomplishment of the act against her will or without her consent. The issue that the assailant had used force and victim offered resistance could be instances of proof that the act was against her will or without consent. As a measure of normal human conduct, the attempts have been to prove that the resistance offered by the woman was up to her utmost capability, and that every means, such as shouting, crying, biting, or beating had been tried to prevent the successful commission of the act, but it will be doubtful authority to lay down that if signs of resistance are not shown, there could have been no rape, for after all, the act is regarded as rape even if the woman has yielded out of fear, duress or complete exhaustion. The fact that there were no injuries on the private parts of the victim does not prove that there was no rape or that the girl was a consenting party."

Page 664. - "Different objectives of clinical examinations of the victim and the accused of rape.- While examining the victim, one searches for corroborative evidence to support or rebut the allegations of sexual assault. In the case of the accused, the medical officer should be able to answer the following questions: (i) is the accused physically capable of performing the sexual act?; and (ii) Is there any evidence to corroborate or rebut the physical contact with the victim?

Medical Examination of the Victim and the Accused in Cases or Rape.- As the offence of rape is committed in privacy and direct evidence of rape may not be available, corroboration of the testimony of the complainant is sought from medical evidence. A charge of rape 31 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

is very easy to make and very difficult to refute, and in common fairness to the accused, the courts insist on corroboration of the story of the complainants. Sometimes rape is clearly proved or admitted, and the question is whether the accused committed the rape. At other times, the association of the accused and the complainant is admitted, and the question is whether the rape was committed. Where rape is denied, the sort of corroboration one looks for is medical evidence showing injury to the private parts of the complainant, injury to the other parts of her body, which may have been occasioned in struggle, seminal stains on her clothes or the clothes of the accused, or on the places where the offence is committed."

50. It is seen that besides the deposition of the victim about

penetration there is no direct medical proof. The question

which arises for a definite conclusion is whether to accept the

deposition of the victim as truthful? The FIR lodged by the

victim is a little exaggerated but understandably so. There is

no evidence of the victim being brutally beaten and hit by a

rod. The victim did not depose about being badly beaten and

hit by a rod although she said so in the FIR. The defence also

did not bring out the exaggeration in her cross-examination.

Otherwise the victim has been consistent that she was raped

right from the time she lodged the FIR. The victim was 17.5

years of age at the time of the commission of the offence and

therefore capable of understanding what rape means. The

prosecution has been able to prove that P.W.2 was hit by the

Appellant while they were in the car before they were made to

get off from the vehicle. The injury on her forehead

corroborates the deposition of P.W.2 as well as P.W.1 about the 32 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

physical conflict. It is certain that the Appellant and P.W.2 had

got into a verbal as well as physical conflict before she got off

the vehicle. The victim has also been consistent about the fact

that she was nauseous while in the vehicle. Whether it was

due to alcohol consumption or sedation has not been cogently

proved by the prosecution. That however, may not be as

relevant. The prosecution has also been able to prove that

there were bruise marks on the victim's neck and contusions

on the Appellant's chest both of which dated back to the time

of the offence. The seizure of the victim's underwear and the

Appellant's boxer shorts and the presence of human semen on

both are also proved. There was but only the Appellant with

the victim at the time of the offence. The sequence of events till

the time P.W.1 and P.W.2 alighted from the vehicle is clearly

established. Except for minor discrepancies the testimony of

the victim is consistent. The Appellant has virtually admitted

the evidence of the victim as there is not even a denial of

having committed the sexual assault upon the victim during

her cross-examination. The core ingredients of the offence

alleged remains intact. The sixth description of Section 375

IPC makes it clear that if rape is committed on a woman who is

less than 18 years of age consent has no relevance. Even if

this Court was to accept the defence version made probable by

the prosecution evidence that the victim had consumed alcohol

and also ignore the fact that she was a minor, in view of the 33 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

fifth description of Section 375 IPC her intoxication and her

inability to understand the nature and consequences of her

consent (which evidence is also available) would still drag the

act back to rape if even slight penetration is proved. The

evidence of the victim is however, clearly of the Appellant

putting his penis into the victim's vagina with some

penetration also. The surrounding circumstances have been

adequately corroborated by the deposition of the prosecution

witnesses. There is no reason to doubt the truthfulness of the

victim's deposition. The story of what transpired that day as

narrated by the witnesses is not improbable. The evidence of

the victim is not totally inconsistent with the medical evidence.

It is settled that ocular testimony of a witness has greater

evidentiary value vis-a`-vis medical evidence. The medical

evidence does not completely rule out all possibilities

whatsoever of the commission of rape by the Appellant. There

is no direct contradiction between the ocular and medical

evidence. It must be noted that explanation 1 to Section 375

IPC clarifies that for the purpose of the section, "vagina" shall

also include labia majora. This was not a case of alleged use of

blunt forceful blows by the Appellant while committing rape.

Partial penetration within the labia majora of the vulva or

pudendum is sufficient to constitute the offence of rape, depth

of penetration being immaterial. The lack of injury on the

genital of the victim cannot be considered as conclusive proof 34 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

that the Appellant had not raped the victim. More so when the

injuries on the victim as well as the Appellant does reflect

signs of resistance. The learned Special Judge has rightly

relied upon the evidence of the victim.

51. In the circumstances, this Court is of the view that the

prosecution has been able to establish that the Appellant had

committed penetrative sexual assault as defined in Section 3

(a) of the POCSO Act and rape as defined in Section 375 (a) of

the IPC. The prosecution has also been able to prove that the

Appellant had voluntarily caused hurt both on the victim as

well as on P.W.2.

52. Section 3(a) of the POCSO Act and Section 375 (a) of the

IPC are identically worded except the words "woman" in

Section 375 is replaced by the word "child" and "the child" in

Section 3(a) of the POCSO Act. Whereas the POCSO Act is

gender neutral Section 375(a) relates to rape committed on a

woman. As per Section 6(10) of the IPC a woman denotes

female human being of any age. If the victim is a child i.e. a

person less than 18 years of age Section 3(a) of the POCSO Act

would be attracted, consent notwithstanding.

53. Mr. K. T. Tamang submitted that in view of Section 42 of

the POCSO Act the learned Special Judge could not have

punished the Appellant both under Section 4 of the POCSO

Act as well as under Section 376 (1) of the IPC as the

punishment under 376 (1) is greater in decree then Section 4 35 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

of the POCSO Act. To appreciate this argument better the

provisions are extracted below:

Section 4 of the POCSO Section 376(1) of the IPC Act

4. Punishment for 376. Punishment for rape-(1) penetrative sexual Whoever, except in the cases assault.- Whoever commits provided for in sub-section (2), penetrative sexual assault commits rape, shall be punished shall be punished with with rigorous imprisonment of imprisonment of either either description for a term which description for a term which shall not be less than seven years, shall not be less than seven but which may extend to years but which may extend imprisonment for life, and shall to imprisonment for life, and also be liable to fine.

shall also be liable to fine.

[emphasis supplied] [emphasis supplied]

54. A perusal of the two provisions extracted above reflects

that the quantum of punishment prescribed is identical. Both

the provisions provide that the term shall not be less than

seven years, but may extend to imprisonment of life, and shall

also be liable to fine. However, Section 376 (1) IPC provides

that the punishment shall be rigorous. Section 4 of the POCSO

Act only provides for imprisonment leaving the discretion to

the Court to either impose rigorous or simple imprisonment.

This is clear on reading Section 2(2) of the POCSO Act and

Section 53 of the IPC. Section 42 mandates that the offender

found guilty of such offence punishable under the POCSO Act

and also under Section 376 IPC shall be liable to punishment

under either of the acts "as provides for punishment which is

greater in degree". Thus this Court is of the view that the

punishment under Section 376 (1) IPC which mandates 36 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

compulsory imposition of rigorous imprisonment with hard

labour is greater in degree than the one provided under

Section 4 of the POCSO Act. If the ingredients of both the

offences i.e. penetrative sexual assault under the POCSO Act

and rape under Section 376 IPC are brought home the

convicted person cannot be punished for both the offences. He

can be punished only for one of such offences i.e. the graver of

the two. Consequently, the learned Special Judge could have

punished the Appellant only under Section 376 IPC and not

under Section 4 of the POCSO Act. Resultantly, the sentence

under Section 4 of the POCSO Act is set aside. However, it

must be clarified that in the present case the learned Special

Judge has imposed one sentence for both the offences.

Therefore, the above view would not change the final quantum

of sentence imposed. Consequently, the sentence of

imprisonment of eight years and payment of fine of

Rs.30,000/- under Section 376(1) IPC is upheld.

55. Mr. K. T. Tamang further submitted that as the offences

charged amounted to "the same transaction" the sentence

under Section 354 and 354B IPC could not have been

awarded.

56. A perusal of the charges framed for the assault on the

victim as well as the deposition of the victim reflects that

charges were framed for use of criminal force on the victim 37 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

intending to outrage her modesty (Section 354 IPC) and for

disrobing her (Section 354B IPC). The victim deposes that

while in the car the Appellant removed her underwear first,

dragged her back into the vehicle after she went out used

criminal force and raped her. It is apparent that the acts

alleged against the Appellant were committed in the same

transaction, one after the other ultimately leading to rape.

57. The ingredient of Section 354 IPC is assault or use of

criminal force on a woman with the intention to outrage or

knowing it to be likely that he will thereby outrage her

modesty. The ingredient of Section 354B IPC is assault or use

of criminal force to any woman with the intention of disrobing

or compelling her to be naked. Whereas to constitute the

offence under Section 354 IPC the assault or use of criminal

force on a woman must be with intention to outrage her

modesty or having knowledge that it would to constitute the

offence under Section 354B IPC the assault or use of criminal

force must be with intention of disrobing or compelling her to

be naked. Section 354B IPC is graver of the two crimes. The

assault or use of criminal force on a woman with the intention

of disrobing or compelling her to be naked may amount to

outraging her modesty as well. Thus commission of the offence

under Section 354 and 354B IPC were preparatory acts

towards the commission of rape in the same transaction in the

present case.

38 Crl. Appeal No. 40 of 2017

Prem Rai alias Sambhu Rai v. State of Sikkim

58. In view of Section 220 Cr.P.C. the Appellant could have

been charged and tried at one trial for the offences he was

charged with. However, in view of Section 220 (5) Cr.P.C.

Section 71 of the IPC and Section 42 of the POCSO Act it is

clear that if the alleged act of penetrative sexual assault,

assault or criminal force to woman with intent to outrage her

modesty and assault or use of criminal force to woman with

intent to disrobe were committed in the course of the same

transaction, the offender may not be punished for more than

one of such his offences, unless it be so expressly provided.

Thus, the sentence of the Appellant under Section 354 and

354B IPC cannot be upheld and is set aside.

59. The learned Special Judge has sentenced the Appellant

for commission of two separate offences under Section 323 IPC

on the victim as well as P.W.2 by imposing a singular sentence

of simple imprisonment for a period of one year. The learned

Special Judge was required to examine and sentence the

Appellant, if mandated, for the two offences separately. As the

punishment prescribed under Section 323 IPC is for a term

which may extend to one year without a minimum term the

sentence of one year imposed is taken as sentence of six

months for each of the two offences. The offence of voluntarily

causing hurt upon the victim was in the course of the same

transaction while committing rape. Thus, the Appellant was

not required to be sentence for the offence under Section 323 39 Crl. Appeal No. 40 of 2017 Prem Rai alias Sambhu Rai v. State of Sikkim

IPC. The sentence for voluntarily causing hurt on the victim is

set aside. Consequently, for the commission of voluntarily

causing hurt upon P.W.2 the Appellant is sentence to undergo

six months of simple imprisonment.

60. The rest of the directions passed by the learned Special

Judge are maintained.

61. The appeal is partly allowed and disposed of on the above

terms. The Appellant is in jail. He shall continue there and

serve the rest of the sentence.

62. A copy of this judgment may be sent to the Court of the

learned Special Judge, North District, Mangan. A certified copy

of the judgment may be furnished to the Appellant.

(Bhaskar Raj Pradhan) Judge 07.06.2019

Approved for reporting: yes.

to/ Internet: yes.