Sikkim High Court: Bhaskar Raj Pradhan, J. hearing a criminal appeal filed by a person convicted of rape and sexual assault under Penal Code, 1860 (hereinafter ‘IPC’) and Protection of Children from Sexual Offences Act, 2012 (hereinafter ‘POCSO’), partly allowed the appeal and set aside conviction under POCSO Act on the ground that punishment imposed under IPC was greater and more rigorous than that imposed under POCSO Act.
Appellant, a taxi driver, was hired by the victim and her two friends to go sightseeing in and around Gangtok. It was alleged that he took the girls for sightseeing and during this period became violent with the victim’s friend. When they wished to return, he began making demands for money and forced the victim’s friend to get off from the car and drove off with the victim while she was unconscious. The victim filed a criminal case against the appellant for commission of rape, penetrative sexual assault on a minor as well as for voluntary causing hurt. Special Judge, POCSO Act convicted the accused-appellant under Sections 323, 354, 354B, 376(1) of IPC and Sections 3(a) and 4 of the POCSO Act. Aggrieved thereby, this appeal was filed.
K. T. Tamang, legal aid counsel for the appellant, argued that since there was a gap between the alleged incident and the seizure of the victim’s article along with the appellants clothing it could not be ascertained if the bodily fluids found on the clothes belonged to the appellant. He relied on the case Ramdas v. State of Maharashtra, (2007) 2 SCC 170 to ask for corroboration of the victim’s testimony as she had hidden that she had consumed alcohol. He argued that based on the admission made by the Investigating Officer (IO), the appellant and the victim’s friend had purchased the alcohol. Hence, the victim had not been sedated but had consumed alcohol. He also submitted that the medical evidence ruled out all the possibilities of ocular evidence being true and thus ocular evidence should be disbelieved, as per the case of Abdul Sayeed v. State of MP, (2010) 10 SCC 259.
SK Chetri (Additional Public Prosecutor) appeared for the State and established the minority of the victim at the time of the incident. He also proved that it was the appellant who had driven the victim and her two friends on the day of the incident. He further proved that victim’s friend was hit by the appellant while they were in the car before they were made to get off from the vehicle. He had also successfully proved that there were bruise marks on the victim’s neck and contusions on the appellant’s chest both of which dated back to the time of the offence. The victim’s deposition was further corroborated by both oral as well as material evidence, although there were a few minor discrepancies between the witness statements.
The Court observed that besides the deposition of the victim about penetration there was no direct medical proof of rape. However, the victim was 17.5 years of age at the time of the commission of the offence and therefore capable of understanding what rape meant. In addition to this, the injuries on the victim as well as the appellant reflected signs of resistance. It was noted that the evidence of the victim was not totally inconsistent with the medical evidence, and it was settled that ocular testimony of a witness has greater evidentiary value vis-a`-vis medical evidence. Even the medical evidence did not completely rule out the possibilities of the commission of rape by the appellant. Further, there was no direct contradiction between ocular and medical evidence.
The Court was of the view that the Special Judge could have punished the appellant only under Section 376 IPC and not under Section 4 of the POCSO Act. Consequently, the sentence under Section 4 of the POCSO Act was set aside as punishment under Section 376(1) IPC mandated the compulsory imposition of rigorous imprisonment with hard labor which was greater in degree than the one provided under Section 4 of the POCSO Act. Hence, the appeal was partly allowed.[Prem Rai v. State of Sikkim, 2019 SCC OnLine Sikk 81, decided on 07-06-2019]