THE HIGH COURT OF SIKKIM : GANGTOK

(Criminal Appellate Jurisdiction)

Dated : 20^th September, 2023

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DIVISION BENCH : THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE

THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE

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Crl. A. No.16 of 2022

Appellant

:

Dawagyal Lepcha

versus

Respondent

:

State of Sikkim

Appeal under Section 374(2) of the

Code of Criminal Procedure, 1973

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Appearance

Ms. Zola Megi, Advocate (Legal Aid Counsel) for the Appellant.

Mr. S. K. Chettri, Additional Public Prosecutor for the State-

Respondent.

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J U D G M E N T

Meenakshi Madan Rai, J.

1.

The Court of the Learned Judge, Fast Track, South and

West Sikkim, at Gyalshing, convicted the Appellant/Accused in

Sessions Trial (Fast Track) Case No.05 of 2021 (State of Sikkim vs.

Dawagyal

Lepcha), vide Judgment dated 04-06-2022, under

Sections 376(2)(f) and (l), Section 457 and Section 506 of the

Indian Penal Code, 1860 (hereinafter, the “IPC”). Although the

Learned Trial Court opined that the Prosecution had however failed

to prove the charge against the Appellant under Section 376(2)(j)

of the IPC but did not pronounce an Order of acquittal under the

said sections.

2.

The Appellant assails the conviction (supra) and Order

on Sentence dated 06-06-2022, whereby he was sentenced to

undergo ten years rigorous imprisonment under Section 376(2)(f)

of the IPC with a fine of ₹ 10,000/- (Rupees ten thousand) only, a

similar period of imprisonment under Section 376(2)(l) of the IPC

Crl. A. No.16 of 2022 2

Dawagyal Lepcha vs. State of Sikkim

with a fine of ₹ 15,000/- (Rupees fifteen thousand) only, five years

rigorous imprisonment under Section 457 of the IPC with a fine of

₹

5,000/-

(Rupees

five

thousand)

only,

and

two

years

imprisonment under Section 506 of the IPC. The sentences of

imprisonment were ordered to run concurrently. All the sentences

of fine bore default clauses of imprisonment.

(i)

The facts as per the Prosecution is that, the forty-three

year old victim, being physically challenged is unable to hear or

speak properly and thereby employs gestures and a few words for

communication. P.W.1, her sister-in-law and P.W.2, her cousin are

able to communicate with her as they understand her gestures and

words. The Complainant, P.W.5, the brother of the victim, lives in

the main house, which is adjacent to the victim’s house. P.Ws 7

and 8, working as labourers, are tenants in the same house as that

of the victim and are friends with the Appellant. The Appellant is a

resident of a nearby area and also a labourer.

(ii)

On the night of the incident, the victim retired to her

room after dinner. The Appellant allegedly being aware of the fact

that she occupied the room alone, entered her room later that

night, gave her some bananas and food and thereafter sexually

assaulted her. He then waved his fist at her threatening her not to

relate the incident to anyone. The same night P.W.1 the victim’s

sister-in-law, heard some sounds from the victim’s house but paid

no heed to it, as she herself was unwell. The following morning

i.e., 30-06-2021, P.W.1 asked P.W.3 about the sounds coming

from her room, whereupon the victim identified the Appellant as

“kancha” and described how he had sexually assaulted her. The

Prosecution version further is that, at around 3 a.m., the Appellant

after committing the