Crl. A. No. 09 of 2012. Case: State of Sikkim Vs Sangay Sherpa. Sikkim High Court
| Case Number | Crl. A. No. 09 of 2012 |
| Counsel | For Appellant: Mr. Karma Thinlay Namgyal, Additional Public Prosecutor with Mr. S.K. Chettri, Assistant Public Prosecutor and Mr. Thinlay Dorjee Bhutia, Advocate and For Respondents: Mr. S.S. Hamal, Legal Aid Counsel with Mr. Tashi Wongdi Bhutia and Mr. Madan Kumar Sundas, Advocates |
| Judges | Sonam Phintso Wangdi, A.C.J. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Sections 222, 222(2), 378, 401, 436A; Indian Evidence Act, 1872 - Sections 27, 354, 376, 511 |
| Citation | 2013 CriLJ 2266 |
| Judgement Date | March 25, 2013 |
| Court | Sikkim High Court |
Judgment:
Sonam Phintso Wangdi, A.C.J.
1. This is an appeal under Section 378 of the Code of Criminal Procedure against acquittal of the Respondent/Accused of the charges under Section 376/511 IPC in S.T. Case No. 11 of 2009, passed by the learned Sessions Judge, South and West Sikkim at Namchi by the impugned judgment dated 04.05.2012. The Respondent/Accused had been charged sheeted under the aforesaid provisions by the Sombaria P.S., West Sikkim, consequent to a written FIR submitted by one Phurba Sherpa of lower Ribdi, West Sikkim, stating that his daughter aged about 13 years had been sexually abused by the Respondent/Accused. Resultantly a case under Section 376 IPC was registered against him under Sombaria Police Case No. 04(03)09 dated 23.03.2009. Upon completion of the investigation, charge sheet under Section 376 IPC was filed against the Respondent/Accused for being tried in accordance with law.
2. During the trial, the prosecution examined as many as 17 witnesses and exhibited 25 documents. The learned trial Court after considering the evidence on record came to a finding that the prosecution had failed to prove not only the charge under Section 376/511 IPC but also the minor offence under Section 354 IPC even if it exercised its powers under sub section 2 of Section 222 of the Code of Criminal Procedure. These facts are sufficient for disposal of the present appeal.
3. In the Appeal, the Appellant-State has sought to assail the impugned judgment only to the limited extent of the finding of the learned trial Court of having found the Respondent/Accused not guilty even in respect of the offence under Section 354 IPC by application of its powers under sub section 2 of Section 222 of the Code of Criminal Procedure.
4. It is relevant to note that this Court having found prima facie case had granted leave to appeal and upon hearing the State had admitted the Appeal for hearing.
5. Mr. Karma Thinlay Namgyal, the learned Additional Public Prosecutor, while pressing the Appeal submitted that the learned Trial Court while coming to the finding under challenge had failed to appreciate the overwhelming evidence appearing against the Respondent/Accused of having outraged the modesty of the victim and that the finding was perverse to the evidence on record, in as much as, the only ground of rejection of bringing down the charge to Section 354 IPC against the Respondent/Accused was the absence of injuries on the body of either the accused or the victim. The learned Additional Public Prosecutor drew the attention of this Court to the evidence of PW 2-Passang Dawa Sherpa, PW 4-the victim, Passang Lhamu Sherpa, PW 5-Nim Chikey Sherpa and PW-6 Lalit Tamang and submitted that it had been established from their evidence that the victim PW 4 had been lured by the Respondent/Accused away from her home to a fair distance in the late evening and committed the offence of outraging the modesty of the victim. As per him, the learned trial Court had overlooked the evidence of these witnesses completely and had acquitted the Respondent/Accused on a ground not contemplated by law. Reference was made by him to the case of Tarakeshwar Sahu vs. State of Bihar (now Jharkhand): (2006) 8 SCC 560 and Premiya alias Prem Prakash vs. State of Rajasthan: (2008) 10 SCC 81 in support of his contention.
6. Mr. S.S. Hamal, the learned Legal Aid Counsel representing the Respondent/Accused, supporting the impugned judgment, submitted that no reliance could be placed upon the evidence of PW4 who was a deaf and dumb witness and in her evidence she has not stated of her being sexually assaulted by the Respondent Accused in so many words. Relying upon the case of Kashiram vs. State of Madhya Pradesh: AIR 2001 SC 2902 (para 21) it was submitted that the High Court while exercising its jurisdiction under Section 401 Cr.P.C. ought not to interfere with the decision of the trial Court and displace his acquittal by conviction if two views are possible from the evidence on record. Under such circumstances, as per the learned Counsel, the view taken by the trial Court ought to be accepted. It is further his submission that when the offence under Section 376/511 IPC was not found to have been proved on an analysis of the evidence of the witnesses, more particularly that of the victim, PW4, who had rendered her evidence only by gesticulations, it would be fraught with risk to conclude that a lighter offence under Section 354 IPC stands established based upon such evidence. By referring to a Division Bench judgment of the Rajasthan High Court in Darshan Singh alias Darshan Lal vs. State of Rajasthan 2006 CRLJ 3008 it was submitted that the evidence of PW 4 as it stands on the record cannot be relied upon as the services of an expert or a person familiar with her mode of conveying ideas to others in day to day life had not been taken while examining the victim who was a deaf and dumb person.
7. I have examined the evidence and the records and considered the rival submissions placed by the learned Counsels representing the parties and I am of the view that the finding of the learned trial Court that on the evidence available, even a lighter offence under Section 354 IPC was not made out against the Respondent/Accused by application of...
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