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2020 Supreme(Sikk) 91
IN THE HIGH COURT OF SIKKIM : GANGTOK
MEENAKSHI MADAN RAI, BHASKAR RAJ PRADHAN, JJ.
Kendrap Lepcha, Son of Karma Dorjee Lepcha - Appellant
Versus
State of Sikkim - Respondent
Crl. A. No. 41 of 2018
Decided On : 01-06-2020
For The Appellant :Mr. Ajay Rathi, Advocate.
For The Respondent: Mr. Hissey Gyaltsen and Ms Mukun Dolma Tamang, Assistant Public Prosecutors.
The central legal point established is the requirement for consistency and corroboration in evidence to sustain a conviction for sexual assault, while also emphasizing the need for thorough verification of allegations.
Headnote:
rape - sexual assault - POCSO Act, 2012 - sections 9(f), 9(l), 9(m) - The court sustained the conviction of the appellant for the offences under sections 9(f), 9(l), and 9(m) of the POCSO Act, but set aside the convictions under section 5(f), 5(l), and 5(m) of the POCSO Act as well as section 354 IPC. The court also set aside the sentences under section 376(2)(f), 376(2)(n), 376(2)(i) IPC, and section 5(f), 5(l), and 5(m) of the POCSO Act, while modifying the compensation awarded to the minor victim.
Fact of the Case:
The appellant, a teacher, was convicted for rape, sexual assault, and assault on a minor victim. The case was based on the testimony of the minor victim and first informants, alleging sexual abuse by the appellant.
Finding of the Court:
The court found inconsistencies in the minor victim's testimony and medical evidence, leading to the acquittal of the appellant for penetrative sexual assault or rape. However, the court upheld the conviction for sexual assault based on consistent evidence of the appellant touching the victim's chest and vagina.
Issues: Inconsistencies in the minor victim's testimony, veracity of allegations by first informants, and interpretation of medical evidence.
Ratio Decidendi: The court relied on the consistency of the victim's testimony regarding the appellant's sexual assault, while acknowledging inconsistencies in other aspects. The court also emphasized the need for verification of allegations by examining all schoolgirls involved.
Final Decision: The appellant's conviction for penetrative sexual assault or rape was set aside, but the conviction for sexual assault was upheld. The court modified the compensation awarded to the minor victim and directed compliance with the judgment.
JUDGMENT :
Bhaskar Raj Pradhan, J.
1. The appellant, a teacher in a Primary School, was tried, convicted and sentenced to imprisonment for the offences of rape, aggravated penetrative sexual assault, aggravated sexual assault and for assault on the minor victim (PW-5), a schoolgirl, with intent to outrage her modesty. Both the judgment of conviction and the order on sentence dated 31.05.2018, have been challenged in the present appeal.
2. The First Information Report (for short ‘the FIR’) (Exhibit-1) was lodged on 11.12.2016, by a member of the village Panchayat (PW-6), PW-1 [mother of the minor victim (PW-5)], PW-7, PW-9, PW-10 and PW-14 (collectively referred to as first informants) mothers to the five schoolgirls aged between 7 to 11 years. The FIR (Exhibit-1) alleged that PW-14, mother of “O” (one of the five schoolgirls) was bathing her when she noticed redness on her breasts a few days ago. She therefore asked “O” about it, but she refused to open up. After a while, “O” narrated the incident and informed PW-14 that she and her other schoolgirls were being sexually assaulted by their teacher, the present appellant. The first informants alleged that the schoolgirls informed the first informants that the appellant used to touch their breasts in the classroom and outdoors. According to the first informants, the schoolgirls further alleged that the appellant used to put his finger in their private parts and lick it in front of them, make sexual gestures to them and threaten them that if they told their parents or anyone about it, he would cause serious trouble to them.
3. On the basis of the information, FIR No. 25(12)16 dated 11.12.2016 was registered and the case endorsed to Police Inspector Karma Euden Kaleon (PW-17) for investigation.
4. During the investigation, the minor victim (PW-5) was examined by Dr. Rozeela Bhutia (PW-13) on 11.12.2016 and a medical report (Exhibit-13) prepared. The appellant was also examined on 11.12.2016 by Dr. Dawa Dolma Bhutia (PW-16) and his medical report (Exhibit-16) was also prepared. The minor victim’s (PW-5) statement (Exhibit-6) under Section 164 of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.’) was recorded on 26.12.2016 by the learned Judicial Magistrate (PW-12).
5. A consolidated charge-sheet was filed on 28.04.2017 against the appellant for the alleged offence allegedly committed against five schoolgirls of the same school in which he was a teacher. At the stage of framing of charges, the trial of the alleged offences against each of the five minor schoolgirls was split and each tried separately.
6. On 10.10.2017, the learned Special Judge (POCSO), North Sikkim at Mangan (hereinafter, ‘the learned Special Judge’) in Sessions Trial (POCSO) Case No. 12 of 2017 - State of Sikkim vs. Kendrap Lepcha, framed ten charges against the appellant for the commission of the alleged offences against the minor victim (PW-5). The appellant pleaded not guilty and claimed trial. Eighteen witnesses including the Investigating Officer (PW-17) were examined.
7. On 25.05.2018, the appellant was examined under section 313 of the Cr.P.C. The appellant claimed that he had been falsely implicated because he was a strict teacher and the parents of the schoolgirls used to dislike him. When the appellant declined to bring any witness in his defence, the matter was heard by the learned Special Judge and on 31.05.2018 passed the judgment of conviction and the order on sentence.
8. Mr. Ajay Rathi, learned counsel for the appellant submitted that the deposition of the minor victim (PW-5) is inconsistent. To demonstrate that he took us through the cross-examination of the minor victim (PW-5). It was submitted that the medical evidence was inconsistent with the evidence of the minor victim (PW-5). It was argued that the prosecution had not examined the other schoolgirls. He relied upon the judgment of the Hon’ble Supreme Court in Yerumaua Latchaiah vs. State of Andhra Pradesh, (2006) 9 SCC 713 and prayed for a
