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SIKKIM HIGH COURT
Meenakshi Madan Rai and
Bhaskar Raj Pradhan, JJ.
Sandeep Gajmer @ Sandeep Gazmer – Appellant
versus
State of Sikkim – Respondent
CRL.A.No.30 of 2024
Decided on 29.5.2026
For the Appellant:Mr. N. Rai, Senior Advocate with Mr. Yozan Rai and Ms Tara Devi Chettri, Advocates
For the State-Respondent: Mr. Yadev Sharma, Additional Public Prosecutor with Mr. Sujan Sunwar, Assistant Public Prosecutor
IMPORTANT POINTS
(1) Rape – Negative result of forensic examination would yield to direct ocular and medical evidence.
(2) Evidence given in Court would prevail over outcome of Test Identification Parade.
Headnote:
Indian Penal Code, 1860 – Section 376(1) – Rape of minor girl – Conviction and sentence – Although, forensic evidence did not yield positive result, this fact alone cannot undo evidence of victim corroborated by medical evidence and other prosecution witnesses – Positive result of forensic examination would constitute clinching evidence against accused – If, however, result of forensic test is in negative, favouring accused, weight of other material on evidence on record still have to be considered – Failure of prosecution to further clinch the case with forensic evidence result does not negate deposition of victim as well as medical evidence proved by them and other prosecution witnesses – Actual evidence regarding identification is that which is given by witnesses in Court – Medical evidence read with victim’s deposition clearly suggests that victim was raped by appellant inside bus – Conviction and sentence affirmed. (Paras 23, 24, 25 and 26)
Result: Criminal Appeal rejected.
JUDGMENT
Bhaskar Raj Pradhan, J.—The appellant stands convicted and sentenced for rape under Section 376(1) of the Indian Penal Code, 1860 (IPC). He has been sentenced for ten years rigorous imprisonment with a fine of Rs.5000/-. The victim has been recommended for award of compensation to a sum of Rs.1,00,000/- under the Sikkim Compensation to Victims (or their Dependents) Scheme, 2021.
2. The appellant assails the impugned judgment dated 21.08.2024 and the order on sentence dated 22.08.2024 passed by the learned Special Judge, POCSO Act, Gangtok, Sikkim in S.T. (POCSO) Case No.14 of 2022.
3. Heard Mr. N. Rai, learned Senior Advocate for the appellant and Mr. Yadev Sharma, learned Additional Public Prosecutor for the State.
The arguments
4. The learned Senior Counsel for the appellant submits that the defence demolished the medical evidence of the prosecution during the trial. According to him, the medical and forensic reports do not suggest sexual assault; that even if the prosecution has been able to establish rape upon the victim, the appellant s guilt was not proved; that the victim s age was not proved during trial; that although test identification parade was conducted by the prosecution, they supressed the test identification report clearly raising a presumption against them under Section 114(g) of the Indian Evidence Act, 1872. The learned Senior Counsel relied upon two judgments of the Supreme Court and two of this Court in support of his contentions.
5. In Rajesh Patel vs. State of Jharkhand, (2013) 3 SCC 791 the Supreme Court was examining a case of alleged rape upon the prosecutrix. Before the Supreme Court, it was argued that the sole testimony of the prosecutrix could not have been used against the appellant therein to hold him guilty of offence under Section 376 IPC; that the prosecution had not examined either the doctor who conducted the medical examination of the prosecutrix or the investigating officer. Therefore, the finding of fact holding the appellant guilty of the offence was erroneous in law and liable to be set aside. It was also contended that there were serious contradictions in the version of the prosecutrix and her mother. Further, the appellant contended that the explanation of the prosecution that the prosecutrix could not raise alarm since the appellant threatened her with a knife was improbable. The Supreme Court on examination of the evidence of the case concluded that the prosecution story as narrated by the prosecutrix was most improbable and unnatural. The Supreme Court also found that there was inordinate delay in lodging the FIR, which was not tenably explained. As the doctor had not been examined, the Supreme Court had opined that the non-examination of the doctor as well as the investigating officer has prejudiced the case of the appellant therein, for the reason that if the doctor would have been examined he could have elicited evidence about any injury sustained by the prosecutrix on her private part or any other part of her body and also the nature of hymen layer, etc. so as to corroborate the story of the prosecution that the prosecutrix suffered unbearable pain while the appellant committed rape on her.
6. In Subhash vs. State of Haryana, (2011) 2 SCC 715 the Supreme Court found that dying declaration was not believable as there were contradictions, inconsistencies, exaggerations and embellishments in the deposition of the victim without any explanation.
7. In Shaktiman Rai vs. State of Sikkim, 2024:SHC:39 we were once again called upon to determine the guilt of the accused person who had been convicted solely on the dying declaration of the deceased. We held that the prosecution must stand on its own legs and cannot garner strength from the weaknesses of the defence. We also held that the cardinal principal of criminal jurisprudence is that the case can only be proved beyond a reasonable doubt when there is explicit evidence against the accused and the conviction cannot be a mor
