Crl. A./29/2018 of State of Sikkim Vs Nandaram Chettri on 3 July 2021

IN THE HIGH COURT OF SIKKIM : GANGTOK (Criminal Appellate Jurisdiction)

Crl. A. No. 29 of 2018

State of Sikkim.

… Appellant

Versus

Nandaram Chettri Son of Late Nir Bahadur Chettri Resident of Dodak West Sikkim … Respondent BEFORE

HON’BLE MR. JUSTICE JITENDRA KUMAR MAHESHWARI, CJ.

For Appellant : Dr. Doma T. Bhutia, Public Prosecutor Mr. S.K. Chettri, Addl. Public Prosecutor Mr. S.K. Chettri, Addl. Public Prosecutor For Respondent :

Ms. Puja Lamichaney, Advocate

Date of Hearing and Judgment : 03.07.2021

J UDGME N T(O R A L)

After granting the leave this Appeal is listed for hearing, which is arising out of Judgment dated 21.02.2018 passed by the Special Judge, Protection of Children from Sexual Offences Act, 2012 (POCSO Act, 2012), West Sikkim at Gyalshing in Sessions Trial (POCSO) Case No. 21/2016, acquitting the accused from the said charge.

2. The case of prosecution in brief was that on 05.07.2016 when the victim was going in a vehicle driven by the accused, after dropping other passengers, as alleged, rape was committed on her, thereafter, she was dropped at her sister’s house. The written FIR was submitted on 07.07.2016 by the sister of the victim on which investigation was started and the medical examination of the victim as well as the accused was done through Doctor. The articles seized by the Doctor were sent for RFSL examination and the report was received. Police registered prima facie offence under Sections 354/376 of the Indian Penal Code, 1860, for short, “IPC”, read with Section 4 of the Protection of Children from Sexual Offences Act, 2012, for short, “POCSO Act”. The police seized the Progress Report and the attested copy of the Date of Birth Certificate of the victim being minor, later the offence under Section 4 of the POCSO Act was also aided. The Challan was filed before the competent Court for an offence under Sections 342/354/376 of the IPC read with Section 4 of the POCSO Act. As the offence was triable by the court of Sessions however, it was committed to the competent Court where the charge under Section 4 of the POCSO Act was framed. The accused abjured his guilt and demanded the trial taking defence of false implication.

3. Learned Trial Court recorded the statement of as many as 22 witnesses on behalf of the prosecution and also recorded the defence of the accused under Section 313 of the Code of Criminal Procedure, 1973, for short, “Cr. P.C.”, and decided the case by the impugned judgment holding that to prove the charge under Section 4 of the POCSO Act the age of the victim below 18 years has not been proved. It is observed that to prove the age of victim below 18 year, prosecution has failed to produce the Admission Register of the school of the victim. The Progress Report of the school Exhibit P-10 and the attested copy of the Birth Certificate Exhibit P-11 are not sufficient to prove the age of victim without having substantial evidence required by law. It is said that the Progress Report without having the Admission Register had no relevance to prove the age. Simultaneously, non production of the original Certificate of Date of Birth is fatal, however, the presumption of Section 79 of the Evidence Act, 1872 cannot attract on the basis of documents so produced. The Court further referred the testimony of the victim girl in which she has not disclosed her date of birth. As per the testimony of the sister, victim is the adopted sister but the document of valid adoption was not filed. The sister has also not proved the age of victim being minor. The Court further observed that material witnesses has not been examined which possibly prove the age otherwise looking to the testimony of PW-2 which weakens the case of prosecution, the testimony of the prosecutrix is not found of sterling character to rely upon it alone. Thus looking to the evidence brought on record, Court acquitted the accused from the charge.

4. Dr. Doma T. Bhutia, learned Public Prosecutor appearing on behalf of the appellant-State has argued and made strenuous effort to satisfy that mere testimony of the prosecutrix with respect to commission of rape is sufficient to bring the charge at home. It is submitted that looking to the victim’s testimony finding of acquittal merely due to not proving the age and non production of material witness is not sufficient. Reliance has been placed on a judgment of the Hon’ble Supreme Court in the case of State of H.P. vs. Gian Chand reported in (2001) 6 SCC 71. It is further contended that once the prosecution has come out with a case of commission of rape with a minor girl in such situation the presumption of Section 114A of the Evidence Act, 1872, attracts and the onus shift on the accused. In support of the said contention reliance has been placed on judgments in the case of Bodhisattwa Gautam vs. Subhra Chakraborty (Ms.) reported in (1996) 1 SCC 490 and State of H.P. vs. Mango Ram reported in (2007) 7 SCC 224. By placing reliance on the judgment of Madan Gopal Kakkad vs. Naval Dubey and Anotherreported in (1992) 3 SCC 204, it is contended that the statement of the Doctor can be termed merely an opinion and it may not be conclusive, therefore, the testimony of the prosecutrix who is minor with whom the rape was committed cannot be disbelieved and the Court without taking note of the said aspect acquitted the accused, which is wholly unwarranted. Therefore, allowing the appeal the judgment passed by the Trial Court may be set aside and the accused may be convicted for the charge of Section 4 of the POSCO Act. In alternate, if this Court is of the opinion that due to not proving the age, the charge under Section 4 of the POCSO Act has not proven than by altering the charge under Section 376 of the IPC the accused may be convicted and sentenced appropriately.

5. Per contra, Ms. Puja Lamichaney, learned defence counsel appearing on behalf of the respondent submits that it is a case in which the incident took place on 05.07.2016 and the FIR was lodged after two days of the incident. During the said period the prosecutrix continued to travel with the same vehicle and Driver without raising any alarm. It is further urged as per cross-examination of the prosecutrix in Court, various improvements have made from the statement of Section 161 of the Cr. P.C. which cannot be relied upon. More so as per prosecution, she was sitting in the vehicle on front seat in the window side, but in her statement she said, while travelling she was sitting adjacent to Driver (accused) on front seat who advanced molestation. As per the testimony of PW-2 victim was sitting on front seat towards window side and PW-2 was sitting in between the Driver and the prosecutrix. The said witness has not been declared hostile. Considering the statement of said witness the case set up by prosecutrix is with improvements and having material contradictions in the Court statement. Thus sole testimony of the prosecutrix is not safe to rely without any corroboration by the medical or scientific evidence. In view of the foregoing submissions it is urged that

the judgment of acquittal, passed by the Trial Court, do not warrant interference. At last it is urged that as settled even two views are possible in an Appeal against the acquittal, the view in favour of the accused ought to be taken. Therefore, looking to the evidence brought on record it is not a case in which reversing findings of the judgment passed by the Trial Court may be set aside and the accused may be convicted for the charge under Section 4 of POCSO Act or by altering the charge of an offence under Section 376 of the IPC.

6. After having heard learned counsel for the parties and on perusal of the facts of the case, the incident took place on 05.07.2016 and the victim has reached to sister’s home on the same day. The FIR was lodged on 07.07.2016 by the sister of the prosecutrix when the mother asked her to withdraw from the school thereafter, the sister told prosecutrix why she does not want to properly study in the school. After two days the allegation of commission of rape was alleged by the victim.

7. In the present case though the offence was initially registered under Section 376 of the IPC, but the charge was framed only under Section 4 of the POCSO Act i.e. of Penetrative Sexual Assault. Therefore, to prove the said charge, at first, the prosecution has to prove the age of victim below 18 on the date of incident. In the present case to prove her age, progress report Exhibit P-10 and the attested copy of the Date of Birth Certificate Exhibit P-11 has been produced. No other document has been collected and produced before the Court. The Progress Report is not sufficient until the Admission Register of the School has been exhibited and proved bringing the person in witness box on whose instance, the date of birth in the record of school was recorded. So far as Exhibit P-11, the Date of Birth Certificate, is concerned, it is a photocopy and the original has not been produced and proved bringing cogent evidence. In this view, the finding recorded by the Trial Court on the point of age of the prosecutrix not proved below 18 years bringing cogent evidence is plausible. In the considered opinion of this Court, those findings do not warrant interference. It is also to observe that in the testimony of prosecutrix, her date of birth has not stated and the sister of the prosecutrix has also not proved the age of victim below 18 years, therefore, the finding on the point of age of victim recorded in the impugned judgment is just and proper.

8. Now coming to the allegation of commission of penetrative sexual assault by the accused. It is seen from her statement that prosecutrix herself has examined in which she allegedly sitting adjacent to accused on front seat. As per the testimony of PW-2 it is clear that the prosecutrix was sitting to the side of window on the front seat of the vehicle driven by the Driver/accused and he was sitting between Driver and victim. The said witness has not been declared hostile, simultaneously the case of prosecution itself indicate that victim was not sitting adjacent to driver on front seat. As per testimony of sister she has taken seat in the second row of the vehicle. Looking to the testimony of PW-2 there is no doubt that the prosecutrix has improved her version with respect to her sitting on the front seat adjacent to the Driver where he advances the sexual demand and molested her. In the cross-examination it was asked when the Driver was making indecent attempt advancing the sexual demand why she has not informed to her sister though she was having a mobile, either by phone or by way of message than she denied of taking any step. In addition, the prosecutrix improved her version against the accused that he has demanded the sexual desire on previous occasion also. As per the statement of PW-2 it is clear that the other passengers were also sitting

and the witnesses sitting on the backside seat of the vehicle behind the victim has not been examined by the prosecution which may be the important witness of the case. Simultaneously, if we see the testimony of the Doctor as well as the scientific report it is clear that the allegation of alleged commission of rape as stated by the prosecutrix is not corroborated by medical or scientific evidence. The prosecutrix came with the same Driver to the school on the next day as apparent from her testimony. In such circumstances, in the considered opinion of this Court the findings of acquittal recorded in the facts and evidence, do not warrant interference. The judgments relied by the learned Public Prosecutorappearing for the appellant may be relevant on principle, but looking to the facts of this case and as discussed hereinabove, the sole statement of victim alone is not of sterling character to rely upon, or to prove the charge of penetrative sexual assault. Therefore, in the facts it is not safe to rely the sole testimony of the prosecutrix without having any corroboration which is missing in this case. Therefore, in the opinion of this Court, the Trial Court has not committed any error in acquitting the accused for the charge of Section 4 of the POCSO Act, such findings do not warrant interference in this Appeal.

9. Accordingly, this Appeal is meritless, hence dismissed.

10. The record of the Trial Court be remitted back by the Registry.

Chief Justice

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