In sexual assault cases, the evidence of the victim must be credible, and sentences for related offences must comply with Section 71 IPC to avoid dual punishment.

JUDGMENT

Bhaskar Raj Pradhan, J. - Heard Mr. N. Rai, Learned Senior Advocate for the revisionist and Mr. Sudesh Joshi, Learned Public Prosecutor for the State of Sikkim.

2. This is an application under Section 397 and 401 of the Code of Criminal Procedure, 1973 (in short Cr.PC). The jurisdiction of the revisional court is for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceeding of such inferior court.

3. The first point urged by Mr. N. Rai was with regard to the delay in lodging First Information Report (in short FIR). The record reveals that the alleged incident happened a day before the lodging of the FIR on 11.03.2019. There does not seem to be any apparent delay. The learned trial court has extensively dealt with the argument made before it and concluded that it is of not much consequence. The learned appellate court has also examined it and arrived at the same conclusion.

4. The next point urged by Mr. N. Rai is, what he alleges, are material contradictions. In support of his argument he has relied upon the judgment of the Supreme Court in Santosh Prasad v. The State of Bihar 2020 3 SCC 443 in which it had been found that there were material contradictions and that the manner in which alleged incident took place as per the version of the prosecutrix was not probable. In such circumstances, the Supreme Court held that the evidence of the prosecutrix did not withstand the test of a sterling witness. He also relied upon Rajesh Patel v. State of Jharkhand 2013 3 SCC 791 in which the Supreme Court examined the evidence in an appeal and concluded that the prosecution case is not natural, consistent and probable to sustain the conviction of the appellant therein. The Supreme Court also noticed that the delay of 11 days in lodging FIR had no proper explanation and that the testimony of the prosecutrix was most unnatural and improbable which did not inspire confidence.

5. The learned trial court as well as the learned appellate court examined the submissions of the defence regarding the contradictions, again extensively, and concluded that they were not material contradictions. Contradictions which are the usual wear and tear of time gaps and its effect on human memory that does not vitally affect the substratum of the prosecution case cannot be termed as material contradictions. While examining the evidence, it is clear that the victim had given a detailed testimony of what happened from the time she took a lift in the vehicle of the revisionist till she got off at a place close to the hospital she worked in. The revisionist asked the victim if she wanted to touch the steering and offered to teach her how to drive. He came close to her, started sniffing and smelling her and asked her what fragrance she was wearing. He stopped the vehicle, got out, came in again and said “dey na” (give me). When she resisted, he got in and touched her all over her thighs, shoulders and arms. The evidence of the victim is not unnatural or improbable. The revisionist has not disputed that the victim had boarded the vehicle that fateful day. Narration of the facts as stated by the victim does inspire confidence. The cross-examination did not bring out any material contradiction in the testimony of the victim from her statements recorded during the investigation and trial.

6. The learned trial court had convicted the appellant under Section 354 and 354A of the INDIAN PENAL CODE , 1860 (in short IPC) and sentenced him to undergo simple imprisonment for a term of one year under Section 354 IPC