Point of Law: Criminal Law - Rape case - Conviction set aside- Sole testimony of the prosecutrix is not of a sterling character and is belied by medical and scientific evidence. As per the material brought on record either it appears to be a case of consent or of false implication.

JUDGMENT :

PER J.K. MAHESHWARI, J

Assailing the validity of the Judgment and Order dated 17.02.2020 and the Sentence awarded on 18.02.2020 in Sessions Trial (F.T.) Case No. 04 of 2019 by the Judge, Fast Track Court, East & North Sikkim at Gangtok and challenging the findings recorded against the accused/appellant of his conviction and sentence of 10 years rigorous imprisonment and the amount of fine of Rs.50,000/- (Rupees Fifty Thousand), in default three months simple imprisonment for an offence under Section 376 (1) of the Indian Penal Code, 1860 (for short, IPC), this appeal has been preferred by the accused.

2. The case of prosecution, in brief, is that the accused Shajal Rai @ Adrian, aged 22 years, is a resident of Zoom Busty, West Sikkim, at present resident of 6th Mile, Tadong, East Sikkim. He is a driver by profession and was in occupation to drive a tourist vehicle bearing registration number SK01 Z-0702 belonging to Damber Bahadur Chettri of Deorali, East Sikkim. On 17.04.2019 at around 20.30 hrs., the victim’s sister while checking the mobile phone of the victim, received a call from the accused, who asked the victim’s sister to come and meet him at Putali Garden, East Sikkim. The victim snatched her phone from her sister and switched on the speaker of phone and responded to accused “why should I come”. The accused asked the victim whether “she loved him or not”. The victim did not respond to that. The victim’s sister asked the accused to give Rs.500/- with a promise to return it the next day after going to Gangtok. The accused agreed to give the money as demanded but asked the victim or her sister to come alone, whosoever may be. The story further revealed that the victim got acquainted with the accused over a month back after being introduced by her sister, as her friend’s boyfriend. The victim also saw the accused visiting the church situated next to her house. During one occasion the accused met the victim’s sister and asked her mobile phone. The victim’s sister did not have her own mobile phone, however, gave the number of her sister, which was saved by accused. The accused used to call the victim’s sister on the victim’s phone. On the date of the incident, after talking with the accused, the victim proceeded towards the main road, i.e. Putali Garden, 32 Mile, East Sikkim and met the accused. The accused forcibly caught the victim and placed her inside his vehicle bearing no. SK01 Z-0702 and locked it from inside by the central locking system. Despite strenuous effort from the victim she could not open the door of the vehicle. The accused had also snatched the phone of the victim and kept it. After driving for a while the accused stopped the vehicle at Radong, New Road, East Sikkim and started the music player on a maximum volume. The accused pushed back the seat where the victim was sitting, forcibly removed the clothes, put a knife on the neck of the victim and threatened to cut her neck if she screamed or resisted. At that time victim continued to curse and scold him but she was overpowered by the accused who then committed rape on her. Thereafter, the accused threatened the victim with dire consequences if she complained of the incident. After a while, the accused dozed off giving an opportunity to the victim to escape from the vehicle by somehow pressing the button of the driver’s seat and taking her mobile phone. When the victim had just walked a few yards, the accused again came, took the victim inside the vehicle and dropped her at Putali Garden, 32 Mile, East Sikkim. By the time the victim reached her house it was already 21.30 to 22.00 hrs. Thereafter, the victim called her boyfriend, PW-4 over his phone on 17.04.2019 around 23.00 hrs. and narrated the incident. On the next day morning, i.e. 18.04.2019, the accused again called the victim and assured to take care of her. He also told her that now they would be treated as a couple. On reaching the house of the victim, the boyfriend suggested to call the