Sikkim High Court: The Division Bench of Meenakshi Madan Rai and Bhaskar Raj Pradhan, JJ., allowed an appeal which was filed in order for the Court to determine as to whether the Appellant was the perpetrator of the offence of rape.

A complaint was lodged before the Police Station informing therein that the Victim, his sister, aged about 12 years at the time of the incident had been impregnated by the Appellant. The case was registered under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). On completion of investigation, finding prima facie case under Section 376 of the Indian Penal Code, 1860 (for short, the “IPC”) read with Sections 4 and 6 of the POCSO Act, Charge-Sheet was accordingly submitted against the Appellant.

Trial Court having duly considered the evidence including that of seventeen Prosecution Witnesses concluded that the Prosecution was unable to prove the Charge against the Appellant under Section 511 of the IPC, Sections 5(j)(ii) and (l) of the POCSO Act, but succeeded in bringing home the Charge under Section 375 punishable under Section 376 of the IPC.

Counsel for the Appellant put forth a two-pronged argument, the first being that, as per the Victim, she was raped by the Appellant in the month of December, 2019 and January, 2020, but gave birth to the girl child in the month of May, 2020 on which count alone the Prosecution case is demolished. Secondly, although the Prosecution claims that the DNA Profiling of the Appellant and the child born to the Victim matches, the evidence on record clearly indicates that the Prosecution has failed by way of cogent proof to establish that any blood was drawn from the Appellant for the purposes of DNA Profiling.

Additional Public Prosecutor raised the contention that the evidence of the Victim is proof of the fact that the Appellant had committed penetrative sexual assault on the Victim without her consent. That, the DNA Profiling of the child born from the Victim matched that of the Appellant and the Victim duly buttressed by the evidence of P.W.16, the DNA Examiner who deposed that on examination of the DNA Profiles of the new born baby with that of the Victim and the Appellant, it emerged that the Appellant is the biological father of the child whereas the Victim is the biological mother of the baby.

The Court after arguments noted the following:

  • In the first instance it was noticed as per her 164 Cr.P.C. Statement that the Appellant came to her room one night told her he likes her, forcefully opened her clothes, touched her on her chest and left. Two days later he came to her room at night forcefully opened her undergarment and had sex with her. Three days later while she was working in the kitchen during the night, he came and pulled her and took her to the nearby School where he again had sex with her and she was pregnant.
  • Her evidence during trial reveals that the Appellant had visited her home in the month of December, 2019 on which date, he spoke with her father and returned to his home. And then the following days he again visited and committed penetrative sexual assault without her consent. Later, in the Urine Pregnancy Test it was found that she was pregnant. She was then called to the Mangan Police Station and later forwarded to District Hospital, Mangan for medical examination where she was found to be eight months’ pregnant and was therefore taken to the Mamtalaya Shelter Home where she remained for about a month. On the 19th day of some month in the year 2020, which she did not remember, she delivered a baby girl at the STNM Hospital.
  • It emerged that she did not disclose the incident including that of her pregnancy to any of her family members. from her evidence and her Section 164 Cr.P.C. Statement, it is apparent that she has not stated anywhere that the Appellant forced her to commit the offence or that she was put in fear by the Appellant that he would hurt her or any of her family members or for that matter any of her kith and kin.
  • Medical Officer posted at Mangan District Hospital physically examined the Victim on 10-05-2020 and found that Victim had been brought with an alleged history of sexual assault by the Appellant in the month of December, 2019 and thereafter again on 6th and 7th May, 2020. She found that the Victim was about thirty-two weeks pregnant and she had bruises on her inner thigh which were assessed to be around three days old.
  • Doctor also stated that although the Victim told her that the offence was committed in the month of December, 2019, however, on physical examination it transpired that the alleged offence would have occurred in the month of September or October, 2019, to complement the length of the pregnancy.

The Court was of the opinion that in the light of these anomalies in the Prosecution case, the Court cannot conclusively hold that the blood of the Appellant was drawn for DNA Profiling to establish the paternity of the child born to the Victim. It thus emerges that the victim appears to be closeting the actual circumstance of her pregnancy, the fact that she gave birth in May, 2020 after making claims of being raped in December, 2019/January, 2020 is proof of this circumstance. Her evidence in no manner can be classified as that of a sterling witness and is unreliable.

The Court while allowing the appeal concluded that Prosecution has not been able to establish beyond a reasonable doubt that the Appellant was the perpetrator of the offence of rape as charged. Consequently, the conviction and sentence imposed on the Appellant vide the impugned Judgment and Order on Sentence of the Trial Court was set aside. Appellant was acquitted of the Charge under Section 375 punishable under Section 376 of the IPC.[Cho Mingur Lepcha v. State of Sikkim, 2021 SCC OnLine Sikk 174, order dated: 19-11-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Mr Jorgay Namka, Advocate (Legal Aid Counsel) for the Appellant.

Mr S. K. Chettri, Additional Public Prosecutor with Ms Pema Bhutia, Assistant Public Prosecutor, for the State-Respondent.

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