Sangam Rai And Anr vs State Of Sikkim

THE HIGH COURT OF SIKKIM : GANGTOK (Criminal Appeal Jurisdiction) DATED : 25th August, 2020 ------------------------------------------------------------------------------------------------------------ SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE ------------------------------------------------------------------------------------------------------------ Crl.A. No.15 of 2019 Appellants : Sangam Rai and Another

versus

Respondent : State of Sikkim

Application under Section 374(2) of the Code of Criminal Procedure, 1973 -------------------------------------------------------------------------------------- Appearance Mr. Jorgay Namka, Legal Aid Counsel for the Appellants.

Mr. Yadev Sharma, Additional Public Prosecutor and Mr. Sujan Sunwar, Assistant Public Prosecutor for the Respondent. --------------------------------------------------------------------------------------

JUDGMENT

Meenakshi Madan Rai, J.

1. By the impugned Judgment, dated 29-06-2019, in

Sessions Trial (POCSO) Case No.03 of 2017, both Appellants

were convicted of the offence under Section 341/34 and Section

354/34 of the Indian Penal Code, 1860 (for short, "the IPC").

The impugned Order on Sentence directed each of the

Appellants to undergo simple imprisonment for 15 (fifteen) days

under Section 341/34 of the IPC and, simple imprisonment for

one year each with a fine of Rs.3,000/- (Rupees three

thousand) only, each, under Section 354/34 of the IPC. The

sentence of fine bore a default clause of imprisonment. MEENAKSHI Digitally signed by MEENAKSHI MADAN RAI

MADAN RAI Date: 2020.08.25

Aggrieved thereof, the Appellants seek the setting aside of the 11:49:54 +05'30'

impugned Judgment and Order on Sentence.

Crl.A. No.15 of 2019 2

Sangam Rai and Another vs. State of Sikkim

2. Forwarding his arguments for the

Appellants, Learned Counsel submitted that the occurrence of

the incident is a far-fetched imaginary narrative of the

Prosecution considering the improbabilities and the anomalies

that are nestled in the Prosecution case. While walking this

Court through the evidence of the Prosecution witnesses, it was

submitted that there are apparent contradictions in the evidence

of P.W.1 and P.W.2, as found in their statements under Section

164 of the Code of Criminal Procedure, 1973 (for short,

"Cr.P.C.") and their evidence before the Court. That, the

consistent stand of the Prosecution has been that P.W.1 and

P.W.2 after the incident on 07-12-2006 spent the night in the

house of P.W.10 and on the next date, they left for

Jorethang, where they spent the night in the Jorethang Car

Parking Plaza area. Contrarily, the evidence of P.W.7, a driver

and relative of P.W.2 is to the effect that on 08-12-2016 after

his duty was over, he found P.W.1 and P.W.2 in the Parking area

and took them to his home, thereby demolishing the Prosecution

stand of the two girls having spent the night at the parking lot,

by their own witness. That apart, it is the evidence of P.W.1 and

P.W.2 that P.W.3 their school friend had requested them to drop

her home, which is in contradiction to the evidence of P.W.3 who

stated that P.W.1 and P.W.2 desired to reach her to her home

MEENAKSHI Digitally signed by MEENAKSHI MADAN RAI and she was unaware of their whereabouts after they reached MADAN RAI 11:51:10 +05'30' Date: 2020.08.25

her village. That, her evidence nowhere reveals that they

reached her home. The next glaring anomaly that arises is that

in Exhibit 7, the original FIR lodged by P.W.4 and P.W.5 the time Crl.A. No.15 of 2019 3 Sangam Rai and Another vs. State of Sikkim

of offence is mentioned at "1300 hours", the formal FIR, Exhibit

8, reveals that the incident occurred at around 2 p.m., while the

girls by their evidence seek to convince the Court that the

incident took place late in the evening when it was dark by

stating that they managed to escape from the clutches of the

Appellants when the headlights of passing vehicles focused on

the place of incident. That, the falsity in their evidence is

apparent as in their statements under Section 164 Cr.P.C. they

have nowhere stated that the incident took place in the late

evening or for that matter when it was dark, but that it was 3.30

p.m. It is pertinent to note that P.W.1 makes no mention of any

vehicle lights in her statement under Section 164 Cr.P.C. and

stated that the incident took place at 3.30 p.m. P.W.2 in her

Section 164 Cr.P.C. statement lends support to the statement of

P.W.1 that the incident took place at 3.30 p.m., but P.W.2 in

Court stated that the incident pertained to 5.30 p.m. of the

relevant day. The further evidence of P.W.1 and P.W.2 is to the

effect that after the incident they wanted to report the matter at

the Sumbuk Police Out Post (O.P.), but no Police personnel was

present at the Sumbuk O.P. However, the Investigating Officer

(I.O.) P.W.23 has deposed that every Police O.P. is manned by

Police personnel at any given point of time, rendering false the

statement of P.W.1 and P.W.2. That, P.W.4 and P.W.5 the

fathers of the two girls have stated that they went missing from

MEENAKSHI Digitally signed by MEENAKSHI MADAN RAI 07-12-2016, but P.W.1 and P.W.2 did not inform their respective MADAN RAI Date: 2020.08.25 11:51:58 +05'30'

fathers of their whereabouts after they were allegedly molested,

which casts a doubt on the veracity of the two girls‟ evidence. Crl.A. No.15 of 2019 4

Sangam Rai and Another vs. State of Sikkim

That, the contradictory evidence on record and the statement of

the Appellants in their examinations under Section 313 Cr.P.C.

reveals that the two girls were caught smoking at the place of

the alleged incident by the Appellants and to ward off the

consequences of their unexpected behaviour they have foisted a

false case against the Appellants which is borne out by the

contradictory and inconsistent evidence on record. That, there

seemingly was a verbal altercation between P.W.1 and P.W.2 on

one side and the two Appellants and a Child in conflict with Law

(for short, "CICL") on the other, but there is no evidence

whatsoever of any physical scuffle that the Appellants resorted

to nor is it borne out by the medical examination of P.W.1 and

P.W.2 whereby no injuries were detected on them. That, the

Learned Trial Court failed to take into consideration the cross-

examination of the P.W.1 and P.W.2 or any of the Prosecution

witnesses which in fact demolished the Prosecution case and

hence the Learned Trial Court was in error in convicting and

sentencing the Appellants, who thereby deserve an acquittal. To

fortify his submissions, Learned Counsel placed reliance on Lal

Bahadur Kami vs. The State of Sikkim1, Binod Sanyasi vs. State of 2 Sikkim and Deepan Darjee vs. State of Sikkim3.

3. For his part Learned Additional Public Prosecutor MEENAKSHI Digitally signed by MEENAKSHI MADAN RAI

MADAN RAI Date: 2020.08.25 11:52:41

while making strenuous efforts to support the Prosecution case +05'30'

fairly admitted that anomalies existed in the Prosecution case

with regard to the time of the offence which was reflected in

1 2017 SCC OnLine Sikk 173 : 2018 Cri.L.J. 439 2 2019 SCc OnLine Sikk 111 3 2019 SCC OnLine Sikkim 130 Crl.A. No.15 of 2019 5 Sangam Rai and Another vs. State of Sikkim

Exhibit 7, Exhibit 8 and the deposition of P.W.2 who stated that

it was 5.30 p.m. That, these anomalies are trivial and deserve

to be ignored. That, it is now settled law that undue importance

should not be attached to the minor anomalies which exist in

the Prosecution case, by the Court, if they do not substantially

affect the Prosecution case. It is clear that the incident indeed

occurred during the evening around 5.30 p.m., as per P.W.1

and P.W.2 and the vehicles passing by the place of incident had

their head lights on which deterred the Appellants from

continuing with their misdemeanour. That, the evidence of the

Doctor also corroborates the evidence of P.W.1 and P.W.2 with

regard to the molestation perpetrated on them by the

Appellants, as during their medical examination they have

informed the Doctor that they were sexually assaulted by the

Appellants. That, mere absence of physical injuries on the two

girls is no ground for disbelieving them. That, they were

traumatized by the incident and being ashamed and afraid of

narrating the incident to their parents instead of returning home

they went to Jorethang. It was further contended that due to

the trauma the two girls continued to remain out of their house

till the morning of 10-12-2016. On being found by P.W.7 on 08-

12-2016, they were able to tell him of the incident and call their

parents to Jorethang on 10-12-2016. Hence, the Appellants are MEENAKSHI Digitally signed by MEENAKSHI MADAN RAI

MADAN RAI +05'30' Date: 2020.08.25 11:53:32

guilty as found by the Learned Trial Court and the Judgment

and Order on Sentence suffers from no infirmities.

4. I have considered the rival contentions of Learned

Counsel, perused all documents on record as also the evidence Crl.A. No.15 of 2019 6 Sangam Rai and Another vs. State of Sikkim

and the impugned Judgment and Order on Sentence. I have

also perused the citations made at the Bar.

5. The question for consideration before this Court is

whether the evidence on record suffices to convict the Appellants

of the offences charged with.

6. Before delving into the merits of the matter, I

advert briefly to the facts of the Prosecution case.

(i) On 11-12-2016, at around 1310 hours, a written report

was received from P.W.4 father of P.W.2 and P.W.5 father of the

victim P.W.1, to the effect that in the afternoon of 07-12-2016

their children P.W.1 and P.W.2 had gone to reach P.W.3 to her

residence. On their way home, they came across the two

Appellants and a minor boy (CICL) near the View Point (place of

occurrence). The trio obstructed the path of the minor girls and

touched them inappropriately on various parts of their body

including their genitals, while also attempting to undress

them. The FIR, Exhibit 7 came to be lodged and registered on

the same date. It was endorsed to the I.O. P.W.23 for

investigation, on completion of which Charge-Sheet came to be

filed against the Appellants and the CICL, under Sections 341,

354 and 34 of the IPC, read with Section 8 of the Protection of

Children from Sexual Offences Act, 2012 (for short, POCSO Act,

2012).

MEENAKSHI Digitally signed by MEENAKSHI MADAN RAI

MADAN RAI 11:54:16 +05'30' Date: 2020.08.25 (ii) For clarity, it is essential to mention here that in the

instant matter P.W.1 is the victim having been allegedly

molested by the two Appellants herein. P.W.2 was the victim of Crl.A. No.15 of 2019 7 Sangam Rai and Another vs. State of Sikkim

molestation by the CICL whose trial was segregated and taken

up before the Juvenile Justice Board.

(iii) The Learned Trial Court framed Charge against the

Appellants under Section 341/34, Section 354B/34 and Section

354/34 of the IPC, read with Section 8 of the POCSO Act,

2012. Both the Appellants entered a plea of "not guilty" and

claimed trial, the Prosecution therefore examined 24 (twenty-

four) witnesses in a bid to establish their case, on closure of

which both Appellants were examined under Section 313 of the

Cr.P.C., followed by final arguments of the parties. The Learned

Trial Court on consideration of the evidence on record

pronounced the impugned Judgment and Order on Sentence.

7. Pausing here for a moment it is relevant to point out

that the Prosecution case inter alia was that the victim P.W.1

was a minor, aged about 14 years at the time of the incident.

The Learned Trial Court was not inclined to consider this ground

as no original Birth Certificate of P.W.1 was furnished to buttress

this contention. All that the Prosecution succeeded in offering

was a photocopy of the document, which the Court disregarded

as being inadequate evidence. On this count, the Court also

disbelieved the evidence of P.W.18, the Doctor posted as the

Chief Medical Officer, South Sikkim, at the relevant time, as he MEENAKSHI Digitally signed by MEENAKSHI MADAN RAI

MADAN RAI Date: 2020.08.25 11:55:05 +05'30' failed to produce the Birth Certificate Register allegedly

containing entries of the date of birth of the victim.

Consequently both Appellants were acquitted of the offence

under Section 8 of the POCSO Act, 2012 read with Section 34 of Crl.A. No.15 of 2019 8 Sangam Rai and Another vs. State of Sikkim

the IPC. This finding of the Learned Trial Court is unassailed by

the Prosecution, hence discussions thereof stand truncated here.

8. The conviction of the Appellants is based on the

testimony of P.W.1 and P.W.2. As a general Rule Courts can act

even on the testimony of a sole witness provided her evidence is

wholly reliable, cogent and consistent. In the impugned

Judgment the Learned Trial Court has summed up the

Prosecution case in two short Paragraphs being Paragraph 67

and Paragraph 70 which reads as follows;

"67. It is admitted fact that there are minor contradiction in the statements of PW-1 and PW-2 but it is settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution case, may not prompt the court to reject the evidence in its entirely.

.................................................................................

70. The case in hand the evidence of PW-

1(victim) and PW-2 clearly proved that both the accused persons with their common intention restrained the victim(PW-1) to go out of the said chautara(resting shed) by holding her hand and pulled down. Both the accused persons thereafter touched all over her body including her breast with sexual intent. They also pushed the victim on the ground and got on top of her and also fondled her body."

9. From a reading of the above Paragraphs, it concludes

that neither the cross-examination of P.W.1 and P.W.2 have

been considered by the Learned Trial Court nor have the

MEENAKSHI evidence of the other witnesses found place in the discussions Digitally signed by MEENAKSHI MADAN RAI

MADAN RAI Date: 2020.08.25 11:55:48 +05'30'

which ensued in the impugned Judgment although the evidence

of the Prosecution witnesses have been widely reproduced earlier

on in the Judgment.

Crl.A. No.15 of 2019 9

Sangam Rai and Another vs. State of Sikkim

10. The Hon‟ble Supreme Court in Vijay @ Chinee vs. 4 State of Madhya Pradesh relied on by the Learned Trial Court has

indeed held that minor contradictions and discrepancies are to

be disregarded by the Courts for the reason that mental

capabilities of a human being cannot be expected to be attuned

to absorb all the details and that minor discrepancies are bound

to occur. At the same time we must not lose sight of the caution

spelled out in the same Judgment which requires the Courts to

exercise care and caution and sift the truth from the

untruth, examine whether there are exaggerations and

improvements. On the anvil of this discretion vested on the

Courts, I proceed to examine the evidence of the Prosecution

witnesses.

11. On careful consideration of the evidence on record,

it is indeed clear that there are anomalies in the evidence of the

Prosecution witnesses. The FIR, Exhibit 7, lodged by P.W.4 and

P.W.5, dated 11-12-2016, reveals that the incident alleged took

place on 07-12-2016. As per the FIR, P.W.1 and P.W.2 reached

the place of incident at around 1300 hours after dropping off

their school friend to her house. When they reached the place

of incident they found the Appellants and the CICL there, after

which the alleged incident took place. While the Appellant No.1 MEENAKSHI and the CICL were known to both P.W.1 and P.W.2 being their Digitally signed by MEENAKSHI MADAN RAI

MADAN RAI Date: 2020.08.25 11:56:33 +05'30'

co-villagers, the Appellant No.2 was not known to them. It is

evident that, as per the FIR Exhibit 7, the time of occurrence of

the incident is said to be "1300 hours", while Exhibit 8 the

4 Criminal Appeal no.660 of 2008 : (2010) 8 SCC 191 Crl.A. No.15 of 2019 10 Sangam Rai and Another vs. State of Sikkim

formal FIR records the time of incident as "1400 hours". The

evidence of P.W.1, under cross-examination, is to the effect

that the incident occurred during the "day light" (sic), her

deposition was recorded by the Court on 18-08-2017. P.W.2

came to be examined on 18-09-2017 and evidently made an

effort to improve the Prosecution case by stating that it was

around 5.30 p.m. when they reached the place of incident after

dropping P.W.3 at her residence. P.W.23, the I.O. in his

evidence has not revealed the time of the incident. Reverting

back to the evidence of P.W.1 she has stated that "Due to the

focus light (sic) of the second vehicle the two accused persons

could not do any further indecent act upon me and I and my

junior friend ran away from the chowtara." and admitted under

cross-examination that the meaning of the word "focus light" of

the vehicle means the lights coming from the headlights of the

vehicle. In the same breath, she admitted that the alleged

incident occurred during the day time. P.W.2 has, as already

stated, said that the incident took place around 5.30 p.m., but

admits that the incident occurred during the day time. In other

words, it emerges from their evidence that it was daytime when

the incident occurred. If the evidence of P.W.1 that the vehicles

which passed by had their headlights on is to be believed, then,

it would appear that it was dark and the lights of the vehicles MEENAKSHI Digitally signed by

Date: 2020.08.25 11:57:12 had been turned on, but the evidence of both the girls contrarily MEENAKSHI MADAN RAI

MADAN RAI +05'30'

indicate that the incident took place during the daytime. It is

pertinent to note that P.W.1 makes no mention of any vehicle

lights in her statement under Section 164 Cr.P.C. and both Crl.A. No.15 of 2019 11 Sangam Rai and Another vs. State of Sikkim

P.W.1 and P.W.2 stated that the incident took place at 3.30

p.m., but digressing from this statement P.W.2 in Court stated

that the incident pertained to 5.30 p.m. of the relevant day.

P.W.1 speaks of two passing vehicles, P.W.2 refers to three.

While it is necessary to bear in mind that a statement recorded

under Section 164 Cr.P.C. can never be used as substantive

evidence, but it can be used both for contradiction and

corroboration of a witness who made it. Both P.W.1 and P.W.2

were confronted with their statements made under Section 164

Cr.P.C. during cross-examination and the contradictory evidence

that emerged were none too flattering for the Prosecution case

and did little to enhance the confidence of this Court in the

witnesses‟ persistent inconsistent stands. In the light of this

anomalous evidence before the Court, it is not for the Court to

draw assumptions of the time of the incident. It is the bounden

duty of the Prosecution to convince the Court by leading

unfaltering evidence of the time of the incident, which then has

to be established beyond a reasonable doubt. These

requirements are sadly lacking in the Prosecution case.

12. Both P.W.1 and P.W.2 in their evidence have stated

that on the following day, i.e., 08-12-2016, after having spent

the night of 07-12-2016 in the house of P.W.10, they went to

Jorethang. Thereafter, on 09-12-2016 they verbally reported MEENAKSHI Digitally signed by MEENAKSHI MADAN RAI

MADAN RAI Date: 2020.08.25 11:57:50 +05'30' the incident to Jorethang Police Station. It is their unequivocal

statement that P.W.7 accompanied them to the Police Station.

Surprisingly their statements find no substantiation either in the

evidence of P.W.7 or P.W.23. In fact, if their deposition is taken Crl.A. No.15 of 2019 12 Sangam Rai and Another vs. State of Sikkim

to be the truth, then it would cast an aspersion on the Police

personnel manning the Jorethang Police Station on 09-12-2016

as it could be presumed that they had failed to comply with the

provisions of Section 154 of the Cr.P.C., which mandates that

every information relating to the commission of a cognizable

offence, if given orally to an officer in charge of a police station,

shall be reduced to writing by him or under his direction, and be

read over to the informant, and every such information,

whether given in writing or reduced to writing as aforesaid, shall

be signed by the person giving it, and the substance thereof

shall be entered in a book to be kept by such officer in such

form as the State Government may prescribe in this behalf.

However, in my considered opinion, the evidence of P.W.1 and

P.W.2 on this aspect is unbelievable and inspires no confidence

as neither have they stated the time at which they went to the

Police Station nor have they stated as to who they gave the

information to. In contrast, P.W.7 states that the two girls after

spending the night, i.e., on 08-12-2016, in his house, told him

that they had come to Jorethang in connection with a School

Project and spent the next night, i.e., 09-12-2016, also in his

house informing him that their School Project was not yet

completed. P.W.1 in her evidence stated that they did not

inform P.W.7 of the incident. If that be so, the statement that MEENAKSHI Digitally signed by MEENAKSHI MADAN RAI

MADAN RAI +05'30' Date: 2020.08.25 11:58:36

P.W.7 accompanied them to the Police Station is incorrect and

contradictory. The evidence of P.W.7 nowhere reveals that he

had accompanied P.W.1 and P.W.2 to the Jorethang Police

Station on 09-12-2016 and is evidently a false statement made Crl.A. No.15 of 2019 13 Sangam Rai and Another vs. State of Sikkim

by the two girls. At no point of time between 08-12-2016 and

the morning of 10-12-2016, when P.W.7 took them to the taxi

stand in order to send them to their village, did they ever inform

him of the alleged incident nor did they inform him that on 09-

12-2016, they had verbally reported the incident at the

Jorethang Police Station. It is admitted by both P.W.1 and

P.W.2 under cross-examination that they did not inform P.W.7

of the incident during their stay in his house. It may relevantly

be remarked here that, as per P.W.10, P.W.1 and P.W.2

informed her of the incident of molestation, but described the

place of occurrence as near a „Mandir‟, while P.W.1 under cross-

examination admitted having narrated to P.W.10 about the

incident, however P.W.2 denied having told P.W.10 of the

incident. P.W.23 for his part supported the evidence of P.W.10

and P.W.1 pertaining to narration of the incident. This also

points to the inconsistencies in the Prosecution case. P.W.10

has stated that the two girls arrived at her house at about 09.30

p.m. on 07-12-2016 after the alleged incident. P.W.1 and

P.W.2 have not thrown any light on their whereabouts in the

intervening hours between 2 p.m. and 09.30 p.m. Even

assuming that the incident took place at 5.30 p.m., their

whereabouts between 5.30 p.m. and 9.30 p.m. has neither been

divulged by P.W.1 and P.W.2 nor does investigation shed any

MEENAKSHI Digitally signed by MEENAKSHI MADAN RAI light on this aspect nor has P.W.23 made any statement in this MADAN RAI 11:59:20 +05'30' Date: 2020.08.25

regard.

13. The next point that rears its head for consideration

is the stand taken by the I.O. that the two girls had spent the Crl.A. No.15 of 2019 14 Sangam Rai and Another vs. State of Sikkim

night of 08-12-2016 at the Jorethang Parking Plaza. However,

P.W.1 and P.W.2 have not stated in their evidence in Court that

they spent the night at the Parking Plaza. Hence, it emerges

that there is no evidence to establish that they had spent the

night at Jorethang Car Plaza as sought to be made out by

P.W.23. P.W.1 herself has stated that at Jorethang they first

went to the Plaza where P.W.2 met her brother P.W.7, who took

them to his house. P.W.2 has also denied having stated

anything in her Section 164 Cr.P.C. statement about having

spent a night in the Jorethang Car Plaza as, according to her, it

would be a false statement.

14. Now, the question of which of the Appellants

assaulted which of the two girls also appears rather

nebulous since it is in the evidence of P.W.1 that both the

Appellants herein assaulted her, while P.W.2 was assaulted by

the CICL. The evidence of P.W.15, the Medical Officer who

examined them contrarily states that both P.W.1 and P.W.2

alleged molestation on each of them, by the two Appellants and

the CICL, thereby leading to doubts about the perpetrators of

the alleged offence. That apart, the other contradictory

evidence on record is that while P.W.1 and P.W.2 insist that

P.W.3 had requested them to drop her home after school, P.W.3

denies this circumstance and has stated that they volunteered

to reach her home. That, they are not even her friends, but MEENAKSHI Digitally signed by MEENAKSHI MADAN RAI

MADAN RAI only her schoolmates. The evidence on P.W.3 also reveals that Date: 2020.08.25 12:00:06 +05'30'

she parted ways with P.W.1 and P.W.2 on reaching her village,

therefore their claim of reaching P.W.3 to her house is evidently Crl.A. No.15 of 2019 15 Sangam Rai and Another vs. State of Sikkim

a false statement. The evidence of P.W.6, P.W.7 and P.W.10

reveals that both the alleged girls showed no inclination of

contacting their parents between 07-12-2016 and 09-12-2016.

P.W.6 had met both the alleged girls in Jorethang but, according

to him, they did not make any effort to communicate anything

to him. P.W.7 the cousin of P.W.2 testified that even after P.W.1

and P.W.2 spent two nights in his home they did not express

any desire to contact their family members either over

telephone or cell phones. P.W.10 would depose that she and

her parents own mobile phones but both P.W.1 and P.W.2 did

not express any desire to contact their parents or inform them

of the incident. The evidence of P.W.10 leads one to wonder

why the two alleged girls opted to spend the night at her house

as she has stated that the houses of the two girls were closer to

their school than her house. P.W.23 has also lent credence to

this evidence by stating that the houses of the alleged girls is

about fifteen minutes walking distance from their school, while

that of P.W.10 is about 40 to 50 minutes. According to the I.O.,

they did not go home as they were traumatised by the incident.

The evidence of both PW 1 and 2 nowhere reveals that they

were traumatised by the incident. It appears to be a figment of

the imagination of the I.O. considering that P.W.11 the mother

MEENAKSHI Digitally signed by of P.W.1 has deposed that her daughter confides in her. The MEENAKSHI MADAN RAI

MADAN RAI +05'30' Date: 2020.08.25 12:00:51

question of P.W.1 being unable to confide in her mother about

the incident due to fear and shame is demolished by the

statement of P.W.11. P.W.11 has also brought to light before

this Court the conduct of the two girls by stating that after the Crl.A. No.15 of 2019 16 Sangam Rai and Another vs. State of Sikkim

instant incident both of them had been kept in the custody of an

NGO from where they made good their escape. In the light of

the evidence that the Prosecution has furnished I find that the

statement of P.W.1 and P.W.2 pertaining to their intention of

lodging a complaint before the Sumbuk O.P. on 07-12-2016 is

completely unreliable. Besides, the I.O. P.W.23 has testified

that the Police O.P. is manned round the clock by Police

personnel.

15. In the circumstances, after careful consideration of

the entire evidence on record, contrary to the submissions of

the Learned Additional Public Prosecutor that the anomalies in

the Prosecution case are trivial and ought to be ignored, I find

that it strikes at the root of the Prosecution case. P.W.1 and

P.W.2 failed to return home on 07-12-2016 for reasons best

known to them. It may be true that they encountered the

Appellants and the CICL at the place of incident which gave

them an excuse to spin a yarn about an evidently non-existent

incident. I am of the considered opinion that there is no

evidence whatsoever against the Appellants under the charges

framed against them. The Learned Trial Court for its part failed

to take into consideration the cross-examination of P.W.1 and

P.W.2 which demolishes the Prosecution case. The evidence of

P.W.3, P.W.6, P.W.7, P.W.10, P.W.11, P.W.15, have also not

MEENAKSHI Digitally signed by MEENAKSHI MADAN RAI been considered at all by the Learned Trial Court as appears MADAN RAI Date: 2020.08.25 12:01:35 +05'30'

from the discussions which have ensued in the impugned

Judgment, although their evidence, as already noticed, has been

reproduced extensively earlier on in the impugned Judgment. Crl.A. No.15 of 2019 17

Sangam Rai and Another vs. State of Sikkim

Hence, basing a conviction on the tremulous foundation of the

inconsistent, uncorroborated and capricious evidence of P.W.1

and P.W.2 would deprive the Appellants of one fruitful year each

of their lives. The Prosecution has failed by the evidence

furnished, to establish its case beyond a reasonable doubt

against the Appellants and the Learned Trial Court was in error

in convicting and sentencing the Appellants.

16. Consequently, Appeal is allowed.

17. The conviction and sentence imposed on the

Appellants vide the impugned Judgment and Order on Sentence

of the Learned Trial Court are set aside.

18. The Appellants No.1 and 2 are acquitted of the

offence charged with, i.e., under Section 341/34 and Section

354/34 of the IPC.

19. Both Appellants No.1 and 2 are on bail vide Order of

this Court, dated 27-08-2019, in I.A. No.01 of 2019. They are

discharged from their bail bonds.

20. Fine, if any, deposited by the Appellants in terms of

the impugned Order on Sentence, be reimbursed to them.

21. No order as to costs.

22. Copy of this Judgment be forwarded forthwith to the

Learned Trial Court for information and compliance.

MEENAKSHI Digitally signed by MEENAKSHI MADAN RAI

MADAN RAI Date: 2020.08.25 12:02:23 +05'30'

( Meenakshi Madan Rai ) Judge 25-08-2020

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