Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(Sikk) 33

THE HIGH COURT OF SIKKIM : GANGTOK
MEENAKSHI MADAN RAI, BHASKAR RAJ PRADHAN, JJ.
Sushan Darjee (Hingmang) - Appellant
Versus
State of Sikkim - Respondent
Crl. A. No.27 of 2024
Decided On : 30-04-2025

Advocates Appeared:
For the Appellant :Mr. Madan Kumar Sundas, Advocate (Legal Aid Counsel).
For the Respondent: Mr. Yadev Sharma, Additional Public Prosecutor with Ms. Pema Bhutia, Assistant Public Prosecutor.

In criminal trials for sexual offences, failure to cogently establish the victim's minority through reliable birth and school records, combined with evidence indicating a consensual relationship, precludes a conviction for rape, as the prosecution cannot satisfy the burden of proving lack of consent.

Headnote:(A) Protection of Children from Sexual Offences Act, 2012 - Section 2(d) - Indian Penal Code, 1860 - Section 376 - Code of Criminal Procedure, 1973 - Section 222(2) - Registration of Births and Deaths Act, 1969 - Section 13 - Indian Evidence Act, 1872 - Sections 32(5), 50, 51, 59, 60 and 61 - Age of victim - Determination of minority - Best evidence rule - When the prosecution fails to cogently prove the minority of an alleged victim, reliance on delayed birth registration or unsupported school records is insufficient for conviction under penal provisions relating to sexual offences against minors. (Paras 4(iii), 4(iv))

(B) Evidence - Consent - Assessment of victim's testimony - Where the conduct of the alleged victim, including voluntary elopement and prolonged absence without raising an immediate outcry to family or authorities, suggests a romantic relationship, the claims of lack of consent for sexual activity must be scrutinized against the surrounding circumstances; failure to establish non-consensual acts results in acquittal for rape charges. (Paras 5, 6)

Facts of the case:
The appellant was charged with sexual offences against a minor. The trial court rejected the minority status of the complainant due to unreliable proof of age and acquitted the appellant of specific special act offences but convicted him for rape on the basis of force allegedly used during the sexual act. The appellant challenged the conviction, contending that the act was consensual within the context of a long-standing romantic relationship.

Findings of Court:
The evidence regarding the birth date was found inconsistent, and the statutory registration was significantly delayed without required explanations. School records were also deemed unreliable. The surrounding circumstances, including the victim's voluntary accompaniment of the accused and the lack of immediate complaints to family members, indicated that the act was consensual and not performed against the victim's will.

Issues: Whether the prosecution successfully established the minority of the victim through cogent evidence and whether the sexual act was committed against the victim's will.

Ratio Decidendi: The burden of proving the victim is a minor rests with the prosecution. In the absence of primary and reliable evidence of birth, and where the evidence indicates the sexual relationship was consensual in nature, a conviction for rape cannot be sustained.

Result: Appeal allowed; conviction set aside; appellant acquitted.

Table of Content
1. case background, procedural history, and initial legal contentions of the parties. (Para 1 , 2 , 3 , 4)
2. assessment of witness behavior and circumstantial evidence to determine the presence or absence of consent. (Para 5)
3. final acquittal and issuance of operational directions for the appellant's release. (Para 6 , 7 , 8 , 9 , 10 , 11 , 12)

JUDGMENT :

Meenakshi Madan Rai, J.

1. The Appellant was charged with the offences of impregnating a minor, PW-1, as a consequence of sexual assault, under Section 5(j)(ii) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, the “POCSO Act”). Secondly, for repeatedly committing penetrative sexual assault on the child, under Section 5(l) of the POCSO Act, and for having committed aggravated penetrative sexual assault on the same child, knowing her to be pregnant, under Section 5(q) of the POCSO Act. All offences are punishable under Section 6 of the POCSO Act. He was also charged under Sections 376(2)(n), 376(2)(h) and 376(3) of the Indian Penal Code, 1860 (hereinafter, the “IPC”), for commission of the same offences (supra). The Court of the Learned Special Judge (POCSO Act, 2012), Gangtok, Sikkim, on appreciation of the evidence on record, concluded in Paragraph 28 of the impugned Judgment, dated 30-07-2024, in ST(POCSO) Case No.24 of 2021 [State of Sikkim vs. Sushan Darjee (Hingmang)] that; the question whether the victim is a minor within the meaning of Section 2(d) of the POCSO Act, 2012, is answered in the negative. The Court also observed that on 13-05-2021 to 14-05-2021, when the Appellant and the victim were in his cousin’s house at Sang, he could not be held guilty for rape as the victim was not a minor on those dates and the acts were consensual. The Learned Trial Court accordingly acquitted the Appellant from the above- mentioned charges of the POCSO Act and the IPC. However, invoking Section 222(2) of the Code of Criminal Procedure, 1973 (hereinafter, the “Cr.P.C.”), the Appellant was convicted under Section 376(1) of the IPC for the offence of rape, committed by him, on the alleged victim on 12-04-2021. Vide the Order on Sentence, dated 31-07-2024, the Appellant was sentenced to undergo rigorous imprisonment, for a term of ten years, along with a fine of Rs.5,000/- (Rupees five thousand) only, under Section 376(1) of the IPC with a default clause of imprisonment.

2. Aggrieved by the said conviction and sentence the Appellant has approached this Court. Learned Counsel for the Appellant urged that in fact the Appellant and the victim were in a romantic relationship. The Appellant was nineteen years at the time of the offence, while the age of the victim could not be ascertained from the Prosecution evidence furnished, although she claimed to be only thirteen years of age. That, the sexual acts between the Appellant and the alleged victim being consensual and the minority of the victim’s age not being proved, the Appellant deserves an acquittal.

3. The Prosecution for their part conceded that, the age of the victim was not proved but that did not do away with the fact of the offence of rape, as it is the case of the victim that the sexual assault was perpetrated on her sans her consent, hence the Judgment and Order on Sentence requires no interference.

4. Having heard the rival contentions of Learned Counsel for the parties, it is essential to refer briefly to the facts of the case for clarity in the matter. On 14-05-2021, PW-2 the victim’s father lodged the FIR Exbt P3/PW-2, complaining that his elder daughter, the victim, aged about fourteen years, was missing from their village since 10.00 a.m. of 12-05-2021. The jurisdictional Police station registered a case under Section 363 IPC against unknown persons and endorsed it to the Sub-Inspector PW-12 for investigation. On completion of investigation, Charge-Sheet was submitted against the Appellant under Sections 363/376 of the IPC read with Section 4 of the POCSO Act. Charges under the POCSO A