The prosecution failed to prove rape under Section 376(2)(1) due to insufficient evidence, though the appellant was convicted under Section 354A(1)(i) for unwelcome sexual advances.

JUDGMENT :

Meenakshi Madan Rai, J.

1. The Prosecutrix/victim, P.W.2, in the instant matter, is a differently abled person being hearing and speech impaired. The Complaint, Exhibit 2, came to be lodged by P.W.3, the nephew of the victim, in whose house the offence allegedly took place on 21- 09-2020, of which the victim informed him and his wife, P.W.1. The Court of the Learned Judge (Fast Track), South & West, at Gyalshing, on careful analysis of the oral and documentary evidence adduced by the Prosecution and on appreciation of all facts and circumstances of the case was convinced that the Appellant had raped and sexually assaulted the disabled victim on the night of 21-09-2020, in the house of P.W.3. The Appellant was convicted for having raped a woman with physical disability, punishable under Section 376(2)(1) of the INDIAN PENAL CODE , 1860 (hereinafter, "IPC"), in S.T. (Fast Track) Case No.01 of 2021 ( State of Sikkim vs. Bhim Bahadur Basnett ). In consequence thereof, he was sentenced to undergo rigorous imprisonment for a term of fifteen years for commission of the offence and to pay a fine of Rs. 50,000/- (Rupees fifty thousand) only, in default of payment of fine to undergo simple imprisonment for one more year, setting off the period of detention already undergone by him, in terms of Section 428 of the Code of Criminal Procedure, 1973 (hereinafter, "Cr.P.C.").

2. The Prosecution case is that on 21-09-2020 the victim had gone to Yangang Bazaar (South Sikkim), from where she set out for the house of her nephew P.W.3 and spent the night. During the evening, the Appellant, a co-villager, also came to the same house. On account of the persistent heavy rain, he too spent the night in the house of P.W.3. That, both the above persons were in two separate rooms in the main house of P.W.3, as P.W.3 and his family spent the night in a temporary room, near the cowshed. On the intervening night of 21-09-2020 and 22-09-2020, the Appellant entered the room of the victim and is alleged to have sexually assaulted her. The next morning when P.W.3 and his family went over to their main house at around 6 a.m., both the victim and the Appellant had already left the house. In the afternoon, however, the victim returned to the house of P.W.3 and informed his wife P.W.1 that the Appellant had raped her four times during the night. P.W.1 then informed her husband P.W.3 of what P.W.2 had expressed to her through gesticulations. P.W.3 for his part informed the neighbours and the Panchayat after which P.W.10 scribed the FIR, Exhibit 2, on which P.W.3 affixed his signature. On completion of investigation, P.W.11 who was the Investigating Officer of the case found that a prima facie offence under Section 376 of the IPC was made out against the Appellant and Charge- Sheet was submitted accordingly. Charge was framed under Section 376(2)(1) of the IPC against the Appellant by the Learned Trial Court. On the plea of ―not guilty" by the Appellant, the Prosecution embarked on an examination of eleven Prosecution witnesses. The Learned Trial Court concluded that the Prosecution had proved its case and pronounced the impugned Judgment and Order on Sentence, both dated 31-12-2021.

3. Aggrieved thereof, Learned Senior Counsel for the Appellant contended before this Court that the allegation made by the victim against the Appellant is not borne out by medical or forensic evidence. That, the Appellant was aged approximately 32 years at the time of offence, whereas the victim was 52 years and claims to have been raped four times during the night as narrated to P.W.1. Exhibit 4 is the medical report of the victim, according to which, the victim was examined on 23-09-2020 at 03.40 p.m., the offence h