Rape convictions rely on credible ocular testimony, even if medical findings are inconclusive, as full genital injury is not essential. Offences committed within the same transaction preclude separate sentencing; courts must apply the graver statutory punishment when competing provisions exist.

JUDGMENT :

Bhaskar Raj Pradhan, J

1. The Appellant was the driver of the taxi hired by the victim (P.W.7) and her two friends P.W.1 and P.W.2, all three girls, on 15.05.2016 to go sightseeing in an around Gangtok. However, pursuant to First Information Report (FIR) (exhibit-6) lodged by the victim before the Officer in-charge of Sadar Thana, Gangtok, Sikkim Police Inspector, Ton Tshering Lepcha, Station House Officer (SHO) Phodong, Police Station, North Sikkim and the Investigating Officer (P.W.23) (Investigating Officer) registered a regular criminal case against the Appellant for commission of rape, penetrative sexual assault on a minor as well as for voluntary causing hurt. The victim had alleged that the Appellant while taking them around sightseeing had become violent with the victim’s friend when they desired to return as it was getting late. The Appellant started demanding money and thereafter asked the victim’s friend to get off. By the time she was losing her senses and she could neither hear nor speak. She alleged that she was kidnapped by the Appellant “brutally beaten, slapped, hit by a rod, pulled by my hair and raped in the car.”

2. The investigation culminated in the charge-sheet filed on 24.08.2016 against the Appellant for commission of penetrative sexual assault and voluntarily causing hurt.

3. On 19.09.2016 the learned Special Judge, POCSO Act, 2012, North Sikkim at Mangan charged the Appellant for three indictments. Firstly, for voluntarily causing hurt on P.W.2 and the victim by beating them brutally punishable under Section 323 of the Indian Penal Code, 1860 (IPC). Secondly, he was charged for assaulting or using criminal force against P.W.2 and the victim intending to outrage their modesty punishable under Section 354 . Thirdly, he was charged for committing penetrative sexual assault on the victim punishable under Section 4 of the Protection of Children from Sexual Offences, Act, 2012 ().

4. On 07.11.2016 the learned Special Judge framed two more charges. He was charged for committing rape on the victim punishable under Section 376 IPC. He was also charged for using criminal force against the victim with the intention of disrobing her and in fact, disrobing her punishable under Section 354B . The Appellant pleaded not guilty to all the charges and claimed trial.

5. The Appellant has been convicted under Section 323 IPC for voluntarily causing hurt to the victim and P.W.2. He was also convicted under Section 354, 354B, 376 (1) of the as well as Section 3(a)/4 of the POCSO Act for commission of the said offences on the victim by the learned Special Judge.

6. The Appellant was sentenced in the following manner:

To undergo rigorous imprisonment for a period of eight years and to pay a fine of Rs.30,000/- for the offence(s) under Section 376(1) of the IPC and Sections 3(a)/4 of the POCSO Act, 2012. In default to pay the fine, to undergo simple imprisonment for a further period of six months;

To undergo simple i