Sikkim High Court: A Division Bench of Bhaskar Raj Pradhan and Meenakshi Madan Rai, JJ., while upholding the impugned judgment of the Special Judge explained the elements that amount to “Gang Rape”.
In the present case, appellants were convicted by Special Judge (POCSO) wherein the appellants were found guilty under Section 5(g) of the Protection of Children from Sexual Offences Act, 2012 and under Section 376 D of the Penal Code, 1860.
Special judge held that the victim was a 15-year-old minor.
Counsel for the appellants was Birendra Pourali and Assistant Public Prosecutor for the respondent was S.K. Chettri.
Counsel for the appellant submitted that the prosecution had failed to establish that the victim was a minor by leading cogent evidence. Medical evidence led by the prosecution completely belies the allegation that the appellants had committed gang rape on her and therefore her evidence is not reliable.
APP for respondent submitted that failure to find any marks or injuries on the person of the appellants does not lead to an inference that they had not committed the offence and conviction may be based upon the sole testimony of the victim. He further cautioned the Court that it must be sensitive while dealing with the cases involving sexual offences.
PW 8 deposed that the victim disclosed to her that she had been sexually assaulted by the driver of a TATA vehicle, She also deposed that she had accompanied the police and the minor victim to the police of occurrence where the victim had been sexually assaulted.
Victim deposed before the Court and following was her deposition:
“I know the two accused persons who are present before the Court. Few months back, I had gone to Siliguri with one Puran daju (my cousin). At Siliguri I met accused Vodafone at Big Bazaar shopping complex. After being familiar with him I came to Jorethang in his vehicle on the following day. I had spent the night in my cousin?s place at Siliguri. The said accused brought me to Jorethang where I met my aunt. In fact, the handy boy of accused Vodafone was also there when we came to Jorethang from Siliguri. That evening I again met accused Vodafone near Jorethang bridge. He told me that he would drop me to Melli. Accordingly, I boarded his truck and we started proceeding towards Melli. His handy boy was also there. On the way to Melli the accused stopped the truck at one place and asked his handy boy to leave. He then raped me by putting his pishab garney(penis) into my pishab garney(vagina). He did it once. After sometime the other accused came over there in an Ecomate truck. His young handy boy was also with him. Accused Vodafone asked me to get inside that Ecomate truck. The other accused and his handy boy then raped me inside the said truck. Later, while we reached the Melli Checkpost (on Sikkim border) for entering in West Bengal I was spotted by the police. I told the police about the above incidents”
High Court’s Decision
Court stated that if the woman is below the age of eighteen, consent is immaterial. To constitute rape otherwise, consent is vital. If it is a case falling under the POCSO Act, consent is immaterial.
Birendra Pourali’s submission that the prosecution failed to prove that the victim was a minor gather importance. For the said contention, Court stated:
If the defence desired to question the veracity of the information in the birth certificate, they ought to have objected to its exhibition which would have, if taken at the appropriate point of time, enabled the prosecution tendering the evidence to cure the defect and resort to such mode of proof as would be regular. Victim’s statement that she was sixteen was not even questioned during her cross-examination.
Thus, the Court came to the conclusion for the above that the Special Judge accepting the birth certificate as that of the victim and holding that the victim was a minor at the time of the offence brooks no interference.
Bench further laid down the Explanation 2 to Section 375:
“An unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.”
Court referring to the deposition of the victim stated that when she says that she was raped by the appellants there are no reason to doubt the same. More so, in the present case her deposition is corroborated by forensic evidence. Victim being a minor, the question of consent has no relevance.
Further, the Court laid down the definition of Section 376 D that defines gang rape and elaborated the following as the ingredients that constitute the same:
(i) a woman is raped;
(ii) (a) she is raped by one or more persons constituting a group, or (b) she is raped by one or more persons acting in furtherance of a common intention;
Victim’s deposition as mentioned above clearly leads to that the appellants were known to each other and that the common intention was clearly reflected by the element of participation in action at the place of occurrence.
Two vital ingredients necessary for constituting the offence of gang rape being satisfied, the conviction of the appellants under Section 376D IPC cannot be faulted.
Appellants have also been convicted for gang penetrative sexual assault on a child under section 5(g) of the POCSO Act. Conviction of the appellants for the commission of aggravated penetrative sexual assault must also be upheld.
Lastly, the Court stated that, in view of the failure of the prosecution to seek enhancement of the sentence, we are precluded from imposing the fine as mandated. The appeal is thus dismissed in the above terms. [Raj Kumar Darjee v. State of Sikkim, 2019 SCC OnLine Sikk 223, decided on 17-12-2019]