Crl. A. No. 19 of 2016. Case: Santosh Gurung Vs State of Sikkim. Sikkim High Court

Case NumberCrl. A. No. 19 of 2016
CounselFor Appellant: S.P. Bhutia, Advocate and For Respondents: Karma Thinlay Namgyal, Additional Public Prosecutor and Pollin Rai, Assistant Public Prosecutor
JudgesS.K. Agnihotri, C.J. and Meenakshi Madan Rai, J.
IssueCode of Criminal Procedure, 1973 (CrPC) - Section 313; Indian Evidence Act, 1872 - Sections 24, 25, 26, 27; Indian Penal Code 1860, (IPC) - Sections 201, 302, 376, 376(2)(i); Protection of Children from Sexual Offences Act, 2012 - Sections 3(a), 4, 42, 5(m), 5(n), 6
Judgement DateApril 07, 2017
CourtSikkim High Court


Meenakshi Madan Rai, J.

  1. The Appellant was tried under Section 376(2)(i) of the Indian Penal Code, 1860 (for short "IPC"), Section 3(a) punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short "POCSO Act"), Section 5(m) and Section 5(n) of the POCSO Act as well as Section 302 and Section 201 of the IPC, by the Court of the Learned Special Judge (Protection of Children from Sexual Offences Act, 2012), East Sikkim at Gangtok, in S.T. (POCSO) Case No. 20 of 2014, and convicted as follows;


    U/s. 376(2)(i) of the IPC


    Imprisonment for life and fine of Rs. 1,000/- (Rupees one thousand) only, with a default stipulation.


    U/s. 302 of the IPC


    Imprisonment for life and a fine of Rs. 1,000/- (Rupees one thousand) only, with a default stipulation.


    U/s. 201 of the IPC


    Simple imprisonment for a period of seven years and a fine of Rs. 1,000/- (Rupees one thousand) only, with a default stipulation.

    All the above sentences were ordered to run concurrently and the amount of fine, if recovered, was to be made over to the victim (sic). Although convicted under Sections 4 and 6 of the POCSO Act, also in view of the provisions of Section 42 of the POCSO Act, no sentence of imprisonment was handed out to the Appellant under these Sections.

  2. The grounds raised in the Appeal are that the Prosecution has tried to establish its case by way of circumstantial evidence, but has failed to provide the necessary links to connect the offence to the Appellant. The evidence of the witnesses furnished by the Prosecution being replete with contradictions and inconsistencies are unreliable and cannot be the basis for convicting the Appellant. The Learned Trial Court has reached a finding of guilt mainly relying on the result of the investigation and statement of the Appellant under Section 24 and Section 27 of the Indian Evidence Act, 1872 (hereinafter the "Evidence Act"), which in the first instance, is not conformity with the Law, the extra-judicial confession of the Appellant allegedly having been made by him in the presence of P.W. 1, a Police Official, after he was arrested. That the Appellant had allegedly narrated to P.W. 4 that he had committed a misdeed which he regretted, but in fact, no disclosure of any actual act committed was made by the Appellant to P.W. 4, whose evidence comprises of improbable facts. Relying on the Judgment in State of Goa vs. Sanjay Thakran & Another (2007) 3 SCC 755 it was urged that in cases of circumstantial evidence the circumstances from which inference of guilt is sought to be drawn, must be firmly and cogently connected and unerringly point towards the guilt of the accused, which the Prosecution has failed to do in the instant case. That P.W. 4 failed to identify M.O.VI, while the statements of P.W. 5 and P.W. 14 do not corroborate with regard to the statement of the Appellant under Section 27 of the Evidence Act. That the place of recovery of the alleged articles is easily accessible as villagers are often there to repair water sources and recovery therefrom cannot be said to be fool proof. Learned Counsel sought to debunk the "last seen together theory" being unsubstantiated by the evidence of P.W. 2, who was allegedly the last person to have seen the victim and Appellant together. Moreover, the time gap when the victim and the Appellant were last seen together has to be considered, which was about six months prior to the arrest of the Appellant and not immediately after the disappearance of the victim. Merely because the Appellant left Sikkim at that juncture would not make him guilty of the offence as he was a wanderer often employed for odd jobs in various places. The Prosecution has thus failed to prove its case beyond a reasonable doubt as mandated by Law, in consequence of which the Appellant is entitled to an acquittal.

  3. Resisting the arguments of the Appellant, Learned Additional Public Prosecutor drew the attention of this Court to the evidence of P.W. 4 and P.W. 13, which were urged to be considered together and reveal that the Appellant was indeed guilty of the offence, the Appellant having come to the house of P.W. 4 in a drunken condition with injuries on his neck and bits of wild shrub stuck on his clothes. He admitted to P.W. 4 of having committed a serious act which no one else should repeat and that he would leave for Bhutan. That, the testimony of P.W. 4 has been corroborated by P.W. 13 in whose presence the Appellant admitted the commission of the act of rape and murder. The last seen together theory is confirmed by the evidence of P.W. 2, the mother of the Appellant and grandmother of the victim. The articles of clothing were recovered in terms of the disclosure statement of the Appellant and the guilt of the Appellant can also be gauged from the fact...

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