ORDER :

Bhaskar Raj Pradhan, J.

1. The parameters of judicial consideration while deciding an application for leave to appeal against the judgment of acquittal is the issue before this Court in the present application. Leave to appeal has been sought by the State under Section 378 (3)(b) of the Criminal Procedure Code, 1973 (Cr.P.C) against the judgment dated 28.12.2016 passed by the learned Judge, Fast Track Court (East and North) at Gangtok in Session’s Trial (Fast Track) Case No. 05 of 2016 under Section 376/511 Indian Penal Code (IPC). Although charges were framed under Section 376/511 IPC on the submission of the learned Additional Public Prosecutor at the stage of final arguments that the evidence produced did not make out a case under Section 376/511 IPC but under Section 354 IPC, the learned Trial Judge held that the prosecution has not been able to prove the case even under Section 354 IPC.

2. On 25.05.2017, notice was issued on the application for leave pursuant to which, on 21.06.2017, the learned Counsel would seek time to file response to the application for condonation of delay as well as the present application for leave.

3. On 04.08.2017, Mr. K.T Bhutia, learned Senior Counsel appearing for the Respondent would submit that he would like to argue and contest the application for leave, instead. This Court heard Mr. Karma Thinlay Namgyal, learned Senior Advocate and the Additional Public Prosecutor for the State of Sikkim and Mr. K.T Bhutia.

4. Mr. Karma Thinlay Namgyal would argue that the evidence of the prosecutrix (PW 1) before the Court satisfied the ingredients of the offence under Section 354 IPC and the same had not been demolished in cross-examination. The impugned Judgment disbelieving the prosecutrix version and acquitting the Respondent is wrong and thus, leave ought to be granted. While doing so, Mr. Karma Thinlay Namgyal, would rely upon the examination-in-chief of the prosecutrix and submit that the ingredients of the alleged offence had been cogently proved by the Prosecution. He would plead that there is sufficient evidence to prove the offence under Section 354 IPC and that the Learned Trial Court has failed to appreciate the evidence of the victim (P.W.1), Saroj Rai (P.W.2) and Benjamin Lepcha (P.W.3) in its correct perspective.

5. Mr. Karma Thinlay Namgyal would rely upon the judgment of the Apex Court in re: Mohd. Imran Khan v. State Government (NCT of Delhi), (2011) 10 SCC 192 in which it was held:-

“Evidence of the prosecutrix

22. It is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Evidence Act, 1872 (hereinafter called “the Evidence Act”), nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 of the Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve th