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Sikkim HC upholds man’s conviction for raping 12-year-old girl

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The Sikkim High Court has rejected an appeal while observing that a slight penetration without any visible injury is enough to constitute rape and aggravated penetrative sexual assault under Sections 376 AB of the IPC as well as Section 5 of the POCSO Act.

The Division Bench of Justice Bhaskar Raj Pradhan and Justice Meenakshi Madan Rai passed this order while hearing a criminal appeal filed by Subash Chandra Chettri.

The prosecution examined 18 witnesses to establish two charges framed by the Special Judge, Protection of Children from Sexual Offences Act, 2012 (POCSO Act), Gyalshing, under Section 376 AB of the Indian Penal Code, 1860 (IPC) and Section 5(m) of the POCSO Act on 23.10.2020.

The Court observed that the prosecution was successful during trial and by the judgment and order on sentence, both dated 19.10.2021, the Special Judge (POCSO Act), West Sikkim at Gyalshing, convicted and sentenced the appellant under Section 376 AB of the IPC and Section 5(m) of the POCSO Act.

The appeal is directed against the impugned judgment and order on sentence passed by the Special Judge.

B.K Gupta, counsel for the appellant, drew the attention of the court to the medical report of the victim prepared by Dr Tukki Dolma Bhutia, which recorded that there were no visible external injuries and local examination revealed only redness over the labia minora, although the charge was of penetrative sexual assault. It was submitted that the appellant’s wife was a vital prosecution witness who turned hostile and did not support the prosecution case.

The counsel also drew the attention of the court to the deposition of the prosecution witnesses, in which she deposed that the victim had told her mother in her presence in Nepali, “Malai Subash Uncle le paisa dera jabarjasti naramro kaam garyo.”

He also drew the attention of the court to the deposition of the witnesses in which she deposed that when she asked the victim as to what happened, she told her that the appellant had given her Rs 15 and done “naramro kaam”.

S.K. Chettri, Additional Public Prosecutor, submitted that the impugned order on sentence is sound and needs no interference.

Besides the victim, the prosecution also examined her mother and her father. All of them identified the appellant. The First Information Report (FIR) lodged by the victim on 09.07.2020 alleged that when he was committing rape on her, his wife came suddenly and saw them, compelling him to leave her.

The Court noted,

The Special Judge has examined the evidence in detail. She opined that the victim was a child below the age of 12 years. The Special Judge also considered the testimony of the victim firm and clear. That she had consistently deposed about the incident and as to how the appellant had inserted his penis into her vagina. The Special Judge opined that this deposition was consistent with her statement recorded under section 164 CrPC which also alleged that the appellant had grabbed her, undressed her and thereafter inserted his penis into her vagina.

The Special Judge opined that Dr Tukki Doma Bhutia had noticed that there was redness over the labia minora of the victim and although mere redness could not per se be considered sufficient to prove rape it is not necessary that in order to prove rape the hymen must be ruptured and there must be visible injuries.

She further opined that the redness noticed in the labia minora of the victim the same morning, soon after the incident, reinforces the case of the prosecution. The Special Judge held that in spite of the presumptions of Sections 29 and 30 of the POCSO Act, the defence has not brought out any evidence to the contrary. It was held that the prosecution has proved by way of cogent and reliable evidence beyond reasonable doubt that the appellant had committed rape and aggravated penetrative sexual assault on the victim, a child who was below 12 years of age, and found him guilty as charged under Section 376 AB of the IPC and Section 6 of the POCSO Act.

The Court found that the Special Judge had correctly appreciated the evidence and the law, and found the appellant guilty of the offences charged. The prosecution has been able to establish the case beyond reasonable doubt. The circumstances under which the incident occurred, the time, place and the manner are proved by prosecution witnesses who were present during the relevant time. The victim was certainly a child under the age of 12 years. This fact stands proved by the prosecution and not contested. The victim has withstood the cross examination of the defence and there is no reason for us to doubt her version. The victim’s testimony is not only consistent but fairly detailed, describing the ordeal she went through. There is sufficient corroboration to the victim’s testimony by the other prosecution witnesses as correctly appreciated by the Special Judge.

The Court held,

Both under Sections 376 AB of the IPC as well as Section 5 of the POCSO Act, a slight penetration without any visible injury is enough to constitute rape and aggravated penetrative sexual assault. Penetration to any extent is sufficient to constitute rape under IPC and penetrative sexual assault under the POCSO Act. The victim‟s deposition is specific, consistent and clear that the appellant had inserted his penis into her vagina. The redness on her labia minora noticed by Dr Tukki Dolma Bhutia on 09.07.2020, the same day of the assault, sufficiently corroborates the victim’s version. There is no reason for us to doubt it. In the circumstances, we uphold the conviction of the appellant under Section 376 AB of the IPC and Section 6 of the POCSO Act.

The offence under Section 376 AB of the IPC is punishable with rigorous imprisonment for a term which shall not be less than 20 years, but which may extend to imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, and with fine or with death. It also requires that the fine imposed shall be just and reasonable to meet the medical expenses and rehabilitation of the victim. Section 6 of the POCSO Act also provides identical punishment.

“The Special Judge has sentenced the appellant for a minimum period of 20 years and fine of Rs 5000 for each of the offences. We are of the view that the sentences imposed keeping in mind the facts of the case are adequate and the order on sentence needs no interference. We also uphold the quantum of compensation directed to be paid to the victim as well as the direction that the sentences shall run concurrently and that the period of sentence already undergone during investigation and trial be set off against the sentences imposed,” the Court observed while rejecting the appeal.

Accordingly, the Court disposed of the petition.

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