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2026 Supreme(Sikk) 47
THE HIGH COURT OF SIKKIM: GANGTOK
MEENAKSHI MADAN RAI, BHASKAR RAJ PRADHAN, JJ.
Sandeep Gajmer @ Sandeep Gazmer S/o Shri Kharka Bahadur Gajmer - Appellant
Versus
State of Sikkim - Respondent
CRL. A. No. 30 of 2024
Decided On : 29-05-2026
Important Points
Subject
Criminal Law - Sexual Offences
Act Referred
EVIDENCE ACT : S.114(g)
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT : S.2(d), S.3(a), S.4
CRIMINAL PROCEDURE CODE : S.113, S.164
Headnote
(A) Indian Penal Code, 1860 - Section 376(1) - Protection of Children from Sexual Offences Act, 2012 - Section 4 - Appeal against conviction and sentence for rape - Prosecution case hinges on victim's testimony, corroborated by medical evidence - Conviction upheld. (Para 25)
(B) Evidence - Identification Parade - Non-production of report - Presumption under Section 114(g) of Indian Evidence Act, 1872 - Rebuttable - Failure to produce favorable result does not negate in-court identification if unchallenged and other evidence is cogent. (Para 24)
(C) Medical Evidence - Not examining all doctors who conducted examination is not fatal if the examining doctor who prepared the report is examined and confirms witnessing the procedure. (Para 20)
(D) Forensic Evidence - Negative result does not automatically negate a conviction if other evidence, including testimony and medical reports, establishes guilt. (Para 23)
Facts of the case:
The appellant was convicted under Section 376(1) IPC for raping the victim inside his bus. The victim, after a quarrel with her father, did not return home. She was found unconscious at a bus stop and taken to the hospital. Medical examination revealed signs of forceful penetration. The appellant was the driver of the bus. The victim identified him in court and the defence admitted through cross-examination that they were together. The victim's age as a minor was not proved by the prosecution, so the conviction under the POCSO Act was not sustained, but the conviction under IPC was challenged.
Findings of Court:
The court found that the core of the victim's testimony, that the appellant raped her, remained intact despite exhaustive cross-examination. The medical evidence, including a bruise and genital findings, corroborated the victim's version. The failure to produce a favourable test identification parade report, or to examine two doctors who performed the genital examination, did not fatally undermine the prosecution's case. The court held the conviction under Section 376(1) IPC was correct and upheld the sentence.
Issues: Whether the conviction under Section 376(1) IPC was correct given the alleged weaknesses in medical and forensic evidence, the non-examination of all doctors, and the suppression of the test identification parade report.
Ratio Decidendi: The court ruled that the conviction for rape is sustainable when the victim's testimony is trustworthy and corroborated by medical evidence, even if forensic results are negative and a test identification parade report is unfavorable, provided the in-court identification of the accused is clear and unchallenged by the defence.
Result : Appeal rejected. Conviction and sentence under Section 376(1) IPC upheld.
For the Appellant :Mr. N. Rai, Senior Advocate with Mr. Yozan Rai and Ms Tara Devi Chettri, Advocates
For the Respondent: Mr. Yadev Sharma, Additional Public Prosecutor with Mr. Sujan Sunwar, Assistant Public Prosecutor
JUDGMENT
Bhaskar Raj Pradhan, J.
The appellant stands convicted and sentenced for rape under Section 376(1) of the Indian Penal Code, 1860 (IPC). He has been sentenced for ten years rigorous imprisonment with a fine of Rs.5000/-. The victim has been recommended for award of compensation to a sum of Rs.1,00,000/- under the Sikkim Compensation to Victims (or their Dependents) Scheme, 2021.
2. The appellant assails the impugned judgment dated 21.08.2024 and the order on sentence dated 22.08.2024 passed by the learned Special Judge, POCSO Act, Gangtok, Sikkim in S.T. (POCSO) Case No.14 of 2022.
3. Heard Mr. N. Rai, learned Senior Advocate for the appellant and Mr. Yadev Sharma, learned Additional Public Prosecutor for the State.
The arguments
4. The learned Senior Counsel for the appellant submits that the defence demolished the medical evidence of the prosecution during the trial. According to him, the medical and forensic reports do not suggest sexual assault; that even if the prosecution has been able to establish rape upon the victim, the appellant's guilt was not proved; that the victim's age was not proved during trial; that although test identification parade was conducted by the prosecution, they supressed the test identification report clearly raising a presumption against them under Section 114(g) of the Indian Evidence Act, 1872. The learned Senior Counsel relied upon two judgments of the Supreme Court and two of this Court in support of his contentions.
5. In Rajesh Patel vs. State of Jharkhand, (2013) 3 SCC 791, the Supreme Court was examining a case of alleged rape upon the prosecutrix. Before the Supreme Court, it was argued that the sole testimony of the prosecutrix could not have been used against the appellant therein to hold him guilty of offence under Section 376 IPC; that the prosecution had not examined either the doctor who conducted the medical examination of the prosecutrix or the investigating officer. Therefore, the finding of fact holding the appellant guilty of the offence was erroneous in law and liable to be set aside. It was also contended that there were serious contradictions in the version of the prosecutrix and her mother. Further, the appellant contended that the explanation of the prosecution that the prosecutrix could not raise alarm since the appellant threatened her with a knife was improbable. The Supreme Court on examination of the evidence of the case concluded that the prosecution story as narrated by the prosecutrix was most improbable and unnatural. The Supreme Court also found that there was inordinate delay in lodging the FIR, which was not tenably explained. As the doctor had not been examined, the Supreme Court had opined that the non-examination of the doctor as well as the investigating officer has prejudiced the case of the appellant therein, for the reason that if the doctor would have been examined he could have elicited evidence about any injury sustained by the prosecutrix on her private part or any other part of her body and also the nature of hymen layer, etc. so as to corroborate the story of the prosecution that the prosecutrix suffered unbearable pain while the appellant committed rape on her.
6. In Subhash vs. State of Haryana, (2011) 2 SCC 715, the Supreme Court found that dying declaration was not believable as there were contradictions, inconsistencies, exaggerations and embellishments in the deposition of the victim without any explanation.
7. In Shaktiman Rai vs. State of Sikkim, 2024:SHC:39, we were once again called upon to determine the guilt of the accused person who had been convicted solely on the dying declaration of the deceased. We held that the prosecution must stand on its own legs and cannot garner strength from the weaknesses of the defence. We also held that the cardinal principal of criminal jurisprudence is that the case can only be proved beyond a reasonable doubt when there is explicit evidence against the accused and the conviction cannot be a moral one
