THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
th
Dated : 19 November, 2024
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SINGLE BENCH : THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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Crl.A. No.26 of 2023
Appellant : Anga Bahadur Gurung
versus
Respondent : State of Sikkim
Application under Section 374(2) of the
Code of Criminal Procedure, 1973
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Appearance
Mr. Umesh Ranpal, Advocate (Legal Aid Counsel) for the Appellant.
Mr. S. K. Chettri, Additional Public Prosecutor for the State-
Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. Dissatisfied and aggrieved by the Judgment, dated 29-
08-2023, in S.T. (POCSO) Case No.08 of 2022, of the Court of the
Learned Special Judge (POCSO), West Sikkim, at Gyalshing, vide
which the Appellant was convicted of the offence under Section 7
punishable under Section 8 of the Protection of Children from
, 2012 and
Sexual Offences Act, 2012 (hereinafter, “POCSO Act ”)
under Section 354A(2) of the Indian Penal Code, 1860 (hereinafter,
, and sentenced thereto, the instant Appeal has been
the “IPC”)
preferred.
2. By an Order on Sentence of the same date, he was
sentenced to undergo simple imprisonment for a term of three
years and fined 5,000/- (Rupees five thousand) only, with a
₹
default clause of imprisonment, under Section 7, punishable under
Section 8 of the POCSO Act, 2012 and rigorous imprisonment for a
term of one year under Section 354A(2) of the IPC. The sentences
Crl.A. No.26 of 2023
Anga Bahadur Gurung vs. State of Sikkim 2
were ordered to run concurrently. The fine imposed was ordered to
be paid to the victim in terms of Section 357(1)(b) of the Code of
.
Criminal Procedure, 1973 (hereinafter, “Cr.P.C.”)
3. Learned Counsel for the Appellant/Convict contended
that sexual intent which is the sine qua non for an offence under
Section 7 of the POCSO Act, 2012, has not been proved by the
Prosecution. That, the evidence points to the fact that the
Appellant was seated with his wife in the second seat of the vehicle
with the victim seated next to his wife, and inadvertently he may
have touched the victim in view of the space constraint with four
people accommodated in the second seat. However, there was no
sexual intent as provided under Section 7 of the POCSO Act, 2012.
It is also evident that there was animosity between the victim and
the Appellant as she had requested him to exchange seats with her
when he boarded the vehicle as she would be alighting earlier than
him, but he had refused such exchange. Disgruntled by such
refusal, false implication could not be ruled out. That, the
Prosecution evidence does not support the case of the victim as
PW-2 has admitted that he could not say whether the Appellant
had touched the victim inappropriately. PWs 3, 4 and 7 who were
the other passengers, travelling in the same vehicle also admitted
as much. Hence, the Learned Trial Court erred in holding that the
Appellant had touched the victim with sexual intent having touched
her breast, despite being requested by the child to refrain from
such acts. It was further urged that the age of the victim was not
established, consequently no offence under the POCSO Act, 2012,
was made out against the Appellant. Hence, the impugned
Crl.A. No.26 of 2023
Anga Bahadur Gurung vs. State of Sikkim 3
Judgment be set aside and the Appellant be acquitted of all
charges.
4. Resisting the arguments advanced by Learned Counsel
for the Appellant, Learned Additional Public Prosecutor canvassed
that, the victim had been consistent in her evidence before the
Court and in her Section 164 Cr.P.C. statement, regarding the fact
of the Appellant having touched her inappropriately, which itself
suffices as proof of sexual intent. That, the act was witnessed by
PW-2 whose evidence on that account was not demolished by
cross-examination. PW-7 had also stated that the victim had told
the Appellant to sit properly while PW-4 had witnessed the victim
crying after she (PW-1) asked the driver to stop the vehicle. To
fortify his argument regarding sexual intent, Learned Additional
Public Prosecutor placed reliance on the Judgment of this Court in
1
vs. . Hence, the conclusion
Padam Bahadur Chettri State of Sikkim
arrived at by the Learned Trial Court warrants no interference and
the Appeal deserves a dismissal.
5. Before delving into the merits of the matter, the facts
of the Prosecution case are stated briefly. On 12-04-2022, at
around 1545 hours, PW-1 the victim, lodged a written report, Exbt
1, before the jurisdictional Police Station (P.S.) informing therein
that on the same day around 1230 hours, when she was returning
home from her school in a taxi, one of the male co-passengers
touched her body in an indecent manner. As he repeated the act,
the minor victim shouted at him, had the vehicle stopped and
reported the matter to the PS. FIR No.04/2022 was accordingly
registered on the same date at the P.S., against an unknown
1
Crl.A. No.16 of 2023 decided on 03-05-2024
Crl.A. No.26 of 2023
Anga Bahadur Gurung vs. State of Sikkim 4
person, under Section 354 of the IPC, read with Sections 7/8 of the
POCSO Act, 2012. Investigation was taken up by PW-13, the Sub-
Inspector, who on completion of investigation submitted Charge-
Sheet against the Appellant, under the aforementioned sections of
law. The Learned Trial Court on taking cognizance of the matter,
framed Charge against the Appellant under Section 7 punishable
under Section 8 of the POCSO Act, 2012 and Section 354A(1)(i)
punishable under Section 354A(2) of the IPC. The Charge having
been read over to the Appellant, he entered a plea of not guilty .
“ ”
Consequently, the Prosecution examined thirteen witnesses to
establish its case. On closure of Prosecution evidence, the
Appellant came to be examined under Section 313 of the Cr.P.C. to
enable him to explain the incriminating evidence appearing against
him. He denied the circumstances that were put to him and
claimed that he was innocent and was falsely implicated. The final
arguments were thereafter heard. On consideration of the entire
evidence on record, the Learned Trial Court convicted and
sentenced the Appellant as reflected supra.
6. Having given due consideration to the entire evidence
on record, it is clear that the victim had boarded a taxi vehicle prior
to the Appellant and his wife. When the Appellant was boarding
the vehicle he pushed the victim on her shoulder. The wife of the
Appellant was seated between the victim and the Appellant, both of
whom, as per PW-1, were smelling of alcohol. The Appellant
without reason punched the victim on her left shoulder and when
she protested, he did not respond. His wife remained stoically
silent. After some time when the vehicle reached a place called “S
, the Appellant on the pretext of hugging his wife, touched
Golai”
Crl.A. No.26 of 2023
Anga Bahadur Gurung vs. State of Sikkim 5
, which shocked her and she cried out and
the victim’s left breast
shouted at him. The driver consequently stopped the vehicle and
PW-1 called up her uncle (Mama) who on arrival accompanied her
to the PS and lodged the Complaint Exbt 1, which was duly proved.
Her evidence with regard to the Appellant having touched her
inappropriately was not decimated in cross-examination. Section
164 of the Cr.P.C. statement of the victim is not considered as
although she was shown the document which she identified, she
was not confronted with the contents thereof. In vs.
State of Sikkim
2
this Court while discussing proof of Section 164
Pintso Bhutia
Cr.P.C. observed as follows;
6.
“ ………………………………………………………………
(i) It is now no more res integra that the
contents of Section 164 Cr.P.C. statement are not
substantive evidence and if the Court has to consider
its contents then the author of the contents, in other
words P.W.3, ought to be confronted with it and the
provisions of Section 145 of the Evidence Act
complied with. It is also trite law that the contents of
Section 164 Cr.P.C. statement ought to have been
identified by the victim and not P.W.12, the Learned
Judicial Magistrate, who recorded it and who
obviously cannot vouch for the veracity of the
contents. The Learned Trial Court was in error on this
facet and failed to appreciate the legal perspective
and provision correctly. The Court cannot reach an
independent conclusion of the contents of any
document without proof of its contents, as concluded
by the Learned Trial Court in its observation regarding
Section 145 of the Evidence Act and Section 164
Cr.P.C. extracted supra. It is an elementary
requirement of the Evidence Act that the contents
need to be proved in terms of the provisions of the
Act. Beneficial reference in this context is made to the
observations in vs.
Malay Kumar Ganguly Dr. Sukumar
wherein it was
Mukherjee and Others [(2009) 9 SCC 221]
inter alia held that;
It is true that ordinarily if a party
“37.
to an action does not object to a document
being taken on record and the same is
marked as an exhibit, he is estopped and
precluded from questioning the admissibility
thereof at a later stage. It is, however, trite
that a document becomes inadmissible in
evidence unless the author thereof is
examined; the contents thereof cannot be
2
2023 SCC OnLine Sikk 41
Crl.A. No.26 of 2023
Anga Bahadur Gurung vs. State of Sikkim 6
held to have been proved unless he is
examined and subjected to cross
examination in a court of law. The document
which is otherwise inadmissible cannot be
taken in evidence only because no objection
to the admissibility thereof was taken.”
(emphasis supplied)
(ii) In vs.
R. Shaji State of Kerala [(2013) 14 SCC
it was held as follows;
266]
“26.
Evidence given in a court under
oath has great sanctity, which is why the
same is called substantive evidence.
Statements under Section 161 CrPC can be
used only for the purpose of contradiction
and statements under Section 164 CrPC can
be used for both corroboration and
contradiction. In a case where the Magistrate
has to perform the duty of recording a
statement under Section 164 CrPC, he is
under an obligation to elicit all information
which the witness wishes to disclose, as a
witness who may be an illiterate, rustic
villager may not be aware of the purpose for
which he has been brought, and what he
must disclose in his statements under
Section 164 CrPC. Hence, the Magistrate
should ask the witness explanatory questions
and obtain all possible information in relation
to the said case.
27. So far as the statement of
witnesses recorded under Section 164 is
concerned, the object is twofold; in the first
place, to deter the witness from changing his
stand by denying the contents of his
previously recorded statement; and
secondly, to tide over immunity from
prosecution by the witness under Section
164. A proposition to the effect that if a
statement of a witness is recorded under
Section 164, his evidence in court should be
discarded, is not at all warranted. …….
28. Section 157 of the Evidence Act
makes it clear that a statement recorded
under Section 164 CrPC can be relied upon
for the purpose of corroborating statements
made by witnesses in the committal court or
even to contradict the same. As the defence
had no opportunity to cross-examine the
witnesses whose statements are recorded
under Section 164 CrPC, such statements
cannot be treated as substantive evidence.”
(emphasis supplied)
(iii) On the anvil of the above mentioned
principles, Exhibit 10, the Section 164 Cr.P.C.
statement of the victim is thus disregarded by this
Court as being an unproven document, for the
foregoing reasons.
”
On the same principles enunciated supra, the Section 164
Cr.P.C. statement of the victim in the instant matter is disregarded.
7. Now examining the evidence of the relevant witnesses,
PW-2 appears to have been seated behind the victim and the
Crl.A. No.26 of 2023
Anga Bahadur Gurung vs. State of Sikkim 7
Appellant and witnessed that the Appellant while hugging his wife
touched the body of the girl, who shouted at him as to why he was
hitting and touching her body. The driver on hearing the girl cry,
stopped the vehicle and confronted the Appellant about his
misbehaviour with PW-1. This fact was not decimated in cross-
examination. PW-7 stated that the victim had told the Appellant to
sit properly as she was having problems with his improper way of
sitting.
8. Having considered the Prosecution evidence, it is
emanates without doubt that the Appellant had touched the victim
on her left breast. Considering the body part of the victim that the
Appellant had touched, it stands to reason that it was with sexual
intent.
9. As no evidence established the drunkenness of the
Appellant there is no necessity to discuss the provisions of Section
85 of the IPC or its applicability.
10. Although Learned Counsel for the Appellant had
questioned the age of the victim as the maker of Exbt 6, the Birth
Certificate, of the victim was not examined, the evidence on record
indicates that PW-
8 the victim’s mother stated that she had
obtained the second Birth Certificate, Exbt 6, from the concerned
Primary Heath Centre (PHC). According to
her, the victim’s date of
birth is 25-07-2005. PW-9 the Medical Officer (I/C)-cum-Registrar,
Births and Deaths, on a requisition from PW-13 checked and
verified the Births and Deaths Register of their PHC and found the
birth details of the child in the said Register. The original Birth
Register was brought by PW-9 to the Court which was marked as
Exbt 9. There is no contention raised by the Appellant that the
Crl.A. No.26 of 2023
Anga Bahadur Gurung vs. State of Sikkim 8
Birth Register furnished was a false and fabricated document nor
was cross-examination conducted on this aspect. Exbt 9A
contained the birth details of the victim. Hence, Exbt 6 tallied with
Exbt 9 proves that the date of birth of the victim was 25-07-2005.
The witness also elucidated that after verifying the Birth Certificate
of the child from the records she prepared a report authenticating
the Birth Certificate to be correct and furnished it to the Police.
During the process of authentication, she found that the second
Birth Certificate had been issued as the first Birth Certificate was
misplaced and the name of the mother which was erroneously
recorded was also corrected. The witness deposed that the Birth
Certificate is a genuine and valid document issued from their PHC.
There is no reason to doubt the authenticity of the Birth Certificate
or the Birth Register both of which are unimpeachable evidence.
PW-8 under cross-examination has asserted that the date of birth
of the victim is 25-07-2005 and Exbt 6 is the Birth Certificate of
the victim.
3
11. In vs. , it was
CIDCO Vasudha Gorakhnath Mandevlekar
held that;
The deaths and births register maintained
“18.
by the statutory authorities raises a presumption of
correctness. Such entries made in the statutory
registers are admissible in evidence in terms of
Section 35 of the Evidence Act. It would prevail over
an entry made in the school register, particularly, in
absence of any proof that same was recorded at the
instance of the guardian of the respondent.
………….”
12. Hence, the offence having occurred on 12-04-2022 it is
clear that the victim was aged about 17 years at the time of the
offence and there emanates no reason to doubt the veracity of
Exbt 6 supported as it is by Exbt 9.
3
(2009) 7 SCC 283
Crl.A. No.26 of 2023
Anga Bahadur Gurung vs. State of Sikkim 9
13. In light of the foregoing discussions, I have no reason
to disagree with the findings of the Learned Trial Court. The
impugned Judgment and Order on Sentence warrants no
interference and is accordingly upheld.
14. Appeal dismissed and disposed of accordingly.
15. No order as to costs.
16. Copy of this Judgment be forwarded to the Learned
Trial Court for information along with its records.
17. A copy of this Judgment be made over to the
Appellant/Convict through the Jail Superintendent, Central Prison,
Rongyek and to the Jail Authority for information.
( Meenakshi Madan Rai )
Judge
19-11-2024
Approved for reporting : Yes
ds