THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
th
Dated : 19 June, 2024
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SINGLE BENCH : THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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Crl. A. No.10 of 2023
Appellant : Ganesh Tamang
versus
Respondent : State of Sikkim
Appeal under Section 374(2) of the
Code of Criminal Procedure, 1973
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Appearance
Mr. Dewen Sharma Luitel and Mr. Bhaichung Bhutia, Advocates for
the Appellant.
Mr. Thinlay Dorjee Bhutia, Public Prosecutor for the Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The Prosecution narrative commences with the lodging
of the FIR, Exhibit No.1, on 28-02-2016, at around 1800 hours by
PW-
3 the victim‟s father, informing that on the same date his
seventeen year old daughter, PW-1, had been requested by the
Appellant to assist him in some chores. That, she went as
requested and helped the Appellant to carry manure till 02.00 p.m.
The Appellant thereafter took her to a nearby river, for the purpose
of carrying stones, at which time he sexually assaulted her by
touching her inappropriately. She escaped from the pr
edator‟s
clutches and called PW-3 on his cell phone at around 04.00 p.m.
and informed him of the incident. PW-3 hurriedly reached the
house of PW-8, where the victim had taken shelter and took her to
the Police Station, where he lodged Exhibit No.1. The Police
Station registered a case against the Appellant under Section 354
, read with
of the Indian Penal Code, 1860 (hereinafter, the “IPC”)
Crl. A. No.10 of 2023 2
Ganesh Tamang vs. State of Sikkim
Section 12 of the Protection of Children from Sexual Offences Act,
and on the same day
2012 (hereinafter, the “POCSO Act”)
endorsed it to PW-10, the Investigating Officer (IO) for
investigation. Charge-Sheet consequently came to be submitted
against the Appellant under Section 354 of the IPC read with
Section 12 of the POCSO Act, before the Court of Learned Special
Judge (POCSO Act, 2012), Gangtok, Sikkim.
(i) Charge was framed against the Appellant by the
Learned Trial Court, for sexual assault under Section 7 of the
POCSO Act punishable under Section 8 of the same Act, under
Section 9(c) of the POCSO Act punishable under Section 10 of the
said Act for aggravated sexual assault as the Appellant was a public
servant at the relevant time and under Section 354 of the IPC, for
using criminal force against the minor victim with intent to outrage
her modesty. The Appellant
pleaded “not guilty” to the charges
and claimed trial. The Prosecution examined ten witnesses,
including the IO of the case, on closure of which the incriminating
circumstances against the Appellant were put to him in his
examination under Section 313 of the Code of Criminal Procedure,
) in which he claimed innocence.
1973 (hereinafter, the “Cr.P.C.”
(ii) After hearing the opposing arguments of the Counsel
for the parties and appreciating the evidence furnished, the
Learned Trial Court convicted the Appellant in Sessions Trial
(POCSO) Case No.37 of 2019 (State of Sikkim vs. Ganesh Tamang),
for the offence under Section 7 punishable under Section 8 of the
POCSO Act and sentenced him to undergo simple imprisonment of
three years, with fine of 5,000/-(Rupees five thousand) only and
₹
a default stipulation. While acquitting him of the offence under
Section 9(c) punishable under Section 10 of the POCSO Act, it was
Crl. A. No.10 of 2023 3
Ganesh Tamang vs. State of Sikkim
reasoned that there was no evidence to show that he had
committed the offence in th
e “garb” of being a public servant and
therefore could not be punished under Section 10 of the POCSO
Act. No penalty was imposed under Section 354 of the IPC, on
grounds that, he had been punished for the more severe offence
(supra). Aggrieved, the Appellant is before this Court, assailing
the Judgment of conviction and Order on Sentence.
2. Learned Counsel for the Appellant while advancing
multipronged arguments contended that, in the first instance the
birth certificate of the victim Doc is in photocopy and
“ A”
consequently her age has not been proved as per the mandate of
law. That, Exbt-4, a photocopy of the relevant portion of the live
birth register, reveals the date of birth of the victim as 22-02-
1999, however the has not been recorded in the
informant‟s name
document. That, the victim allegedly escaped from the Appellant
and ran to the house of PW-8, but no injuries were detected on her
person. That, the Learned Trial Court has correctly observed that
there are flaws in the investigation as the doko (bamboo basket) in
which the collected stones were to be carried was not seized by
PW-10, nor photographs of the collected stones taken, which
renders the Prosecution story improbable. That, the wife of the
Appellant has also not been listed as a Prosecution witness, casting
suspicion on the Prosecution case as she had been working
alongside the victim for some time. That, in light of the evidence
furnished, the Learned Trial Court ought to have acquitted the
Appellant. That, accordingly the impugned Judgment and Order on
Sentence be set aside.
3. Per contra, Learned Public Prosecutor contended that,
the victim and her father have categorically deposed that the
Crl. A. No.10 of 2023 4
Ganesh Tamang vs. State of Sikkim
s 22-02-1999 and there was no reason to
victim‟s date of birth i
doubt the veracity of their statements. That, contrary to the
submissions of Learned Counsel for the Appellant, one G.
“
Pradhan was the informant in Exbt-4, although, admittedly he was
”
not examined as a Prosecution witness. That, the evidence of PW-
1 is consistent, cogent and duly supported by the evidence of PW-
6, her co-villager, who deposed that the victim narrated the
incident to her. That, the evidence of PWs 3 and 4 also
corroborates the evidence of PW-1 regarding the incident which she
had narrated to them. That, minor discrepancies with regard to
who the victim called first on the phone does not affect the crux of
the case pertaining to sexual assault and is irrelevant. Hence, no
error arises in the Judgment of conviction of the Learned Trial
Court.
4. Due consideration has been afforded to the
submissions advanced by Learned Counsel which were heard in
extenso and the evidence carefully perused.
5. Before proceeding further, it may be remarked that the
assailed Judgment and Order on Sentence of the Learned Trial
Court are upheld by this Court for reasons that follow.
(i) Notwithstanding the above circumstance, in my
considered opinion, it is relevant to remark here that the Learned
Trial Court marked the Birth Certificate as Doc in
“ A” and
Paragraph 21 of the impugned Judgment observed as follows;
21. So far as the age of the victim is
“
concerned, the birth certificate of the victim
(marked Document „A‟) would show that her
date of birth has been recorded as 22.02.1999.
The said birth certificate is an attested copy
and the original is reported to be in the
possession of the victim s father (PW-3).
‟
Thought the I.O has not produced the original
birth certificate, it can be safely concluded that
her date of birth is indeed 22.02.1999 due to
Crl. A. No.10 of 2023 5
Ganesh Tamang vs. State of Sikkim
the fact that the Registrar of Births and Deaths
(PW-
5) found the entries made in Document „A‟
matched with the entries made in the original
live birth register maintained in his office. He
has prepared a report marked Exhibit-3 after
verification. …………….”
The appreciation of the documentary evidence by the
Learned Trial Court is erroneous for the reason that the document
marked Doc could not have been taken into consideration by
“ A”
the Learned Trial Court. On this facet, it would be beneficial to
look at the provisions of the Indian Evidence Act, 1872
(hereinafter, the “Evidence Act”), which deals with documentary
evidence. Section 61 of the Evidence Act provides as follows;
61. Proof of contents of documents. The
“ —
contents of documents may be proved either by
primary or by secondary evidence.
”
(ii) Section 62 of the Evidence Act prescribes what is
primary evidence and lays down as follows;
62. Primary Evidence. Primary evidence
“ —
means the documents itself produced for the
inspection of the Court.
Explanation 1. Where a document is executed
—
in several parts, each part is primary evidence of the
document;
Where a document, is executed in counterpart,
each counterpart being executed by one or some of
the parties only, each counterpart is primary evidence
as against the parties executing it.
Explanation 2. Where a number of documents
—
are all made by one uniform process, as in the case of
printing, lithography, or photography, each is primary
evidence of the contents of the rest; but, where they
are all copies of a common original, they are not
primary evidence of the contents of the original.
Illustration
A person is shown to have been in possession
of a number of placards, all printed at one time from
one original. Any one of the placards is primary
evidence of the contents of any other, but no one of
them is primary evidence of the contents of the
original.
”
This provision which deals with primary evidence is self
explanatory.
Crl. A. No.10 of 2023 6
Ganesh Tamang vs. State of Sikkim
(iii) Section 63 of the Evidence Act defines secondary
evidence and reads as follows;
63. Secondary evidence. Secondary
“ —
evidence means and includes
—
(1) certified copies given under the
provisions hereinafter contained;
(2) copies made from the original by the
mechanical processes which in
themselves insure the accuracy of the
copy, and copies compared with such
copies;
(3) copies made from or compared with the
original;
(4) counterparts of documents as against the
parties who did not execute them;
(5) oral accounts of the contents of a
document given by some person who has
himself seen it.
Illustrations
(a) A photograph of an original is secondary
evidence of its contents, though the two have not
been compared, if it is proved that the thing
photographed was the original.
(b) A copy compared with a copy of a letter
made by a copying machine is secondary evidence of
the contents of the letter, if it is shown that the copy
made by the copying machine was made from the
original.
(c) A copy transcribed from a copy, but
afterwards compared with the original, is secondary
evidence; but the copy not so compared is not
secondary evidence of the original, although the copy
from which it was transcribed was compared with the
original.
(d) Neither an oral account of a copy
compared with the original, nor an oral account of a
photograph or a machine-copy of the original, is
secondary evidence of the original.
”
(iv) Section 64 of the Evidence Act provides for proof of
documents by primary evidence and lays down that documents
must be proved by primary evidence except in the cases as
mentioned thereafter.
(v) Section 65 of the Evidence Act with which we are
specifically concerned herein, deals with cases in which secondary
evidence relating to documents may be given. This section
provides as follows;
Crl. A. No.10 of 2023 7
Ganesh Tamang vs. State of Sikkim
65. Cases in which secondary evidence
“
relating to document may be given. Secondary
—
evidence may be given of the existence, condition, or
contents of a document in the following cases:
—
(a) When the original is shown or appears to
be in the possession or power
—
of the person against whom the
document is sought to be proved, or of
any person out of reach of, or not
subject to, the process of the Court, or
of any person legally bound to produce
it,
and when, after the notice mentioned in
section 66, such person does not
produce it;
(b) when the existence, condition or
contents of the original have been
proved to be admitted in writing by the
person against whom it is proved or by
his representative in interest;
(c) when the original has been destroyed or
lost, or when the party offering evidence
of its contents cannot, for any other
reason not arising from his own default
or neglect, produce it in reasonable
time;
(d) when the original is of such a nature as
not to be easily movable;
(e) when the original is a public document
within the meaning of section 74;
(f) when the original is a document of which
a certified copy is permitted by this Act,
or by any other law in force in India, to
be given in evidence;
(g) when the originals consists of numerous
accounts or other documents which
cannot conveniently be examined in
Court, and the fact to be proved is the
general result of the whole collection.
In cases (a), (c) and (d), any secondary
evidence of the contents of the documents is
admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of document,
but no other kind of secondary evidence, is
admissible.
In case (g), evidence may be given as to the
general result of the documents by any person who
has examined them, and who is skilled in the
examination of such documents.
”
(emphasis supplied)
(vi) Thus, it is only when primary evidence cannot be
furnished for the reasons enumerated in the provision (supra) that
secondary evidence can be allowed and permitted by the Courts to
be taken on record and considered as an Exhibit. It needs no
Crl. A. No.10 of 2023 8
Ganesh Tamang vs. State of Sikkim
reiteration that primary evidence is the best evidence to establish
with certainty the fact in question. As elucidated in the provision
extracted supra, secondary evidence is permissible in the absence
of the original document and after the Court is convinced of the
circumstances due to which the document cannot be produced. In
other words, sufficient reasons are to be furnished for non-
production of the original document. It is only then that secondary
evidence can be admitted and proved.
The rule of “best evidence”
by furnishing of the original document is to be complied with
except in the contingencies described supra. The statute also
provides for proof of document produced as primary evidence
which is to be in terms of Section 67 to Section 73 of the Evidence
Act.
(vii) In the instant case Doc is not even certified to be a
“ A”
true copy of the original. The document surely could not have
been utilized for the purpose of comparing the entries therein with
the entries made in the live birth register Exbt-4, maintained in the
office of PW-5. Besides, no purpose is served by marking a
document as Doc , when it is settled law that the contents of
“ A”
the document and the signatures thereof are to be proved by the
party relying on it and then it is to be marked as an Exhibit. Then
and only then can the contents of the document be considered in
its entirety as evidence by the Court. The Prosecution failed in its
duty to furnish the original document or to give lucid reasons for its
non-production.
(viii) Nevertheless, the cross-examination of PW-3 the
in this context, only extracted the following
victim‟s father
statements;
Crl. A. No.10 of 2023 9
Ganesh Tamang vs. State of Sikkim
Document A
“…………………… It is not a fact that
is not the copy of the birth certificate of my victim
daughter. It is not a fact that the date of birth
indicated in Document A(its original) is not her correct
date of birth. It is not a fact that her date of birth is
not 22.02.1999. It is not a fact that I had not
obtained her birth certificate from the concerned
office and its original is n
ot in our house. ……..”
The cross-examination therefore merely reaffirms what he
has stated in his evidence in chief, while relying on Doc . It did
“ A”
not decimate the veracity of Doc or its contents nor were the
“ A”
provisions of law as per the Evidence Act, as discussed above,
taken into consideration when the cross-examination was
conducted. PW-5 corroborated the evidence of PW-3 where under
cross-examination he testified that he was absolutely sure that
Doc is the copy of the original/first birth certificate. Thus,
“ A”
although Doc could not have been admitted in evidence,
“ A”
however for the foregoing reasons and the same having remained
undecimated in cross-examination, the finding of the Learned Trial
Court with regard to the age of the victim based on the document
requires no interference.
(ix) Now, the next question to be delved into is whether
Exbt-4, the photocopy of the entries made in the original live birth
register would establish the age of the survivor. In this context, it
is seen as pointed out by the Learned Public Prosecutor that one
G. Pradhan
“ ” was the informant to the entries made in the Serial
No.64 which pertains to details of the victim, her date of birth,
parentage, etc. The document, Exbt-4 may be an official record in
terms of Section 74 of the Evidence Act and admissible under
Section 35 of the same Act, however the contents require to be
corroborated by the person on whose information the entries were
recorded. This aspect has been discussed in
Madan Mohan Singh and
Crl. A. No.10 of 2023 10
Ganesh Tamang vs. State of Sikkim
1
, where the Supreme Court
Others vs. Rajni Kant and Another
observed as hereunder;
18. Therefore, a document may be
“
admissible, but as to whether the entry contained
therein has any probative value may still be required
to be examined in the facts and circumstances of a
particular case. The aforesaid legal proposition stands
fortified by the judgments of this Court in Ram Prasad
Sharma v. State of Bihar [
(1969) 2 SCC 359 : AIR 1970 SC
], Ram Murti v. State of Haryana [
326 (1970) 3 SCC 21 : 1970
], Dayaram v. Dawalatshah
SCC (Cri) 371 : AIR 1970 SC 1029
[ ] , Harpal Singh v. State of
(1971) 1 SCC 358 : AIR 1971 SC 681
H.P. [ ],
(1981) 1 SCC 560 : 1981 SCC (Cri) 208 : AIR 1981 SC 361
Ravinder Singh Gorkhi v. State of U.P. [
(2006) 5 SCC 584 :
], Babloo Pasi v. State of
(2006) 2 SCC (Cri) 632
Jharkhand [ ], Desh
(2008) 13 SCC 133 : (2009) 3 SCC (Cri) 266
Raj v. Bodh Raj [ ] and Ram
(2008) 2 SCC 186 : AIR 2008 SC 632
Suresh Singh v. Prabhat Singh [
(2009) 6 SCC 681 : (2010) 2 SCC
] . In these cases, it has been held that even if
(Cri) 1194
the entry was made in an official record by the official
concerned in the discharge of his official duty, it may
have weight but still may require corroboration by the
person on whose information the entry has been
made and as to whether the entry so made has been
exhibited and proved. The standard of proof required
herein is the same as in other civil and criminal cases.
19. Such entries may be in any public
document i.e. school register, voters’ list or family
register prepared under the Rules and Regulations,
etc. in force, and may be admissible under Section 35
of the Evidence Act as held in Mohd. Ikram
Hussain v. State of U.P. [ ]
AIR 1964 SC 1625 : (1964) 2 Cri LJ 590
and Santenu Mitra v. State of W.B. [
(1998) 5 SCC 697 : 1998
].
SCC (Cri) 1381 : AIR 1999 SC 1587
20. So far as the entries made in the official
record by an official or person authorised in
performance of official duties are concerned, they
may be admissible under Section 35 of the Evidence
Act but the court has a right to examine their
probative value. The authenticity of the entries would
depend on whose information such entries stood
recorded and what was his source of information.
The entries in school register/school leaving certificate
require to be proved in accordance with law and the
standard of proof required in such cases remained the
same as in any other civil or criminal cases.
22. If a person wants to rely on a particular
date of birth and wants to press a document in
service, he has to prove its authenticity in terms of
Section 32(5) or Sections 50, 51, 59, 60 and 61, etc.
of the Evidence Act by examining the person having
special means of knowledge, authenticity of date,
time, etc. mentioned therein. (Vide Updesh Kumar v.
Prithvi Singh [
(2001) 2 SCC 524 : 2001 SCC (Cri) 1300 : 2001 SCC (L&S)
] and State of Punjab v. Mohinder Singh [
1063 (2005) 3 SCC
].)
”
702 : AIR 2005 SC 1868 (emphasis supplied)
1
(2010) 9 SCC 209
Crl. A. No.10 of 2023 11
Ganesh Tamang vs. State of Sikkim
The test laid down by this ratio remained unfulfilled before
the Learned Trial Court.
(x) That having been pointed out, the Learned Trial Court
while discussing Exbt-4 has inter alia observed as follows;
Learned Counsel for the accused has
“22.
voraciously argued that PW-5 cannot be permitted to
produce live birth register (Exhibit-4) for the first time
in Court. In this regard, it will be relevant to note
that PW-5 had produced live birth register for
inspection of the Court and to show genuineness of
the birth certificate (Document „A‟). By production of
the said register, the prosecution (or PW-5) has not
introduced any new fact which would take the defense
by surprise. It only relates to authenticity of the
victim‟s birth certificate and the entries made therein.
Hence, the facts and circumstances of this case
cannot be compared to the case of Bhagyashree
Prashant Wasankar.
”
The evidence of PW-5 is again relevant. He is the witness
who produced the original live birth register maintained in the
relevant office. He identified Exbt-4 as the copy of the relevant
page/portion of the live birth register containing the entries
pertaining to the minor victim. His cross-examination was merely
a reaffirmation that Exbt-4 was the relevant page of the live birth
register containing the entries. No questions were put to him in
cross-examination regarding the non-examination of the informant
of the details at Serial No.64 of the said document. Consequently,
the finding of the Learned Trial Court on this aspect is also upheld.
(xi) It is also found that the Learned Trial Court in
Paragraph 20 of the impugned Judgment observed that there are
flaws in the investigation of the case which is reproduced
hereinbelow as follows;
I agree with Learned Counsel for the accused
“20.
that there are flaws in the investigation of the case,
such as the doko has not been seized by the I.O,
photographs of the stones so collected near the
stream has not been taken and the accused person‟s
wife has not been listed as a witnesses (sic.).
…………………………………..”
Crl. A. No.10 of 2023 12
Ganesh Tamang vs. State of Sikkim
(xii) In my considered opinion, how the seizure of the said
articles would have made a difference to the Prosecution case of
sexual harassment is beyond comprehension and hence this
observation is disregarded.
6. With regard to the offence under Section 9(c)
punishable under Section 10 of the POCSO Act, the Learned Trial
Court in Paragraph 24 of the impugned Judgment observed as
follows;
24. The prosecution has been able to bring home
“
the charges against the accused beyond a reasonable
doubt. The accused is convicted under Section 8 of
the POCSO Act, 2012. However, there is no evidence
to show that the accused had committed the offence
in the garb of being a public servant. He did so as the
and co-villager and not in the
victim‟s neighbour
capacity of a public servant. Hence, he cannot be
punished under Section 10 of the POCSO Act, 2012.
…………………………………………”
7. The observation of the Learned Trial Court (supra) is
clearly a misreading and a misunderstanding of the provision. The
act of sexual assault does not have to be committed by a person in
offence of
the “garb”. The only requirement to constitute an
aggravated sexual assault under Section 9(c), punishable under
Section 10 of the POCSO Act, is that the perpetrator has to be a
public servant . He does not have to act in
“ ” “ ” the “garb” of a
public servant. Regardless of the above clarification, considering
that the Prosecution has failed to furnish any evidence to establish
that the Appellant was a government servant, his acquittal under
Section 9(c) of the POCSO Act is upheld by this Court, but on the
ground of absence of proof.
8. Now, while examining the pivotal issue pertaining to
the offence of sexual assault committed on the victim, PW-1, she
has without dithering, unwaveringly deposed that, on 28-02-2016
she had gone to work in the fields of the Appellant, his wife was
Crl. A. No.10 of 2023 13
Ganesh Tamang vs. State of Sikkim
also there. After working in his fields for some time he told her
that she was to work till 02.00 p.m. and asked her to accompany
him to a nearby river. On reaching the said place, they collected
stones and they had two bamboo baskets (dokos) with them. After
they had collected the stones, the Appellant told her to carry one
bamboo basket on her back to enable him to put the stones in it.
When she did so and turned around, the Appellant suddenly
grabbed her breasts and pulled her towards him in order to molest
her. She somehow managed to free herself and started running
away from him. He followed her up to some distance, while she
then came up to the residence of PW-8, which is situated at some
distance away from her house. There she met PW-6 the daughter
of PW-8 and asked for her mobile and called her father PW-3 and
told him about the incident. She also told PW-6 about the incident.
After some time her father, her cousin and other relatives came to
the house of PW-8 from where they went to the concerned Police
Station and lodged Exhibit No.1. She was then forwarded for
medical examination to the STNM Hospital, Gangtok. Although, in
cross-examination an effort was made to demolish the act of sexual
assault by suggesting to the witness that the Appellant had
touched her accidentally, she denied it and reiterated that he had
suddenly put his hands on her breasts. PW-3 corroborated the
evidence of PW-1 with regard to her having informed him of the
incident and how it unfolded at the place where it occurred. PW-6
the v
ictim‟s friend also corroborated the evidence of PWs 1 and 3.
There is no reason to doubt the evidence of PW-1. The consistency
in her evidence qualifies it as sterling. Thus, it is established that
the Appellant perpetrated the offence of sexual assault on the
victim.
Crl. A. No.10 of 2023 14
Ganesh Tamang vs. State of Sikkim
9. In the end result, the assailed Judgment of the Learned
Trial Court and the Order on Sentence are upheld.
10. Appeal dismissed and disposed of accordingly.
11. No order as to costs.
12. Copy of this Judgment be transmitted forthwith to the
Learned Trial Court for information along with its records.
( Meenakshi Madan Rai )
Judge
19-06-2024
Approved for reporting : Yes
sdl