Yeshay Lepcha v. State of Sikkim

Judgment

21.05.2025 & 26.05.2025 : 19.06.2025 ------------------------------------------------------------------------- J U D G M E N T Bhaskar Raj Pradhan, J.

#1. The appellant has suffered a conviction repeatedly committing sexual assault on the victim under section 9(l) and for committing sexual assault being her guardian under section 9(n) of the Protection of Children 2 Crl Appeal No. 29 of 2024 Yeshay Lepcha vs. State of Sikkim from Sexual Offences Act, 2012 (the POCSO Act). He has also been convicted for committing rape repeatedly on the victim under section 376 (2) (n) of the Indian Penal Code, 1860 (IPC). He was sentenced to imprisonment for six years and fine of Rs.20,000/- under section 9(l) as well as under 9(n) of the POCSO Act. In default of payment of fine for the sentences the appellant was required to further undergo simple imprisonment for one year. The appellant was also sentenced to fifteen years of rigorous imprisonment and a fine of Rs.25,000/- for commission of offence under section 376 (2) (n) IPC. In default he was to undergo simple imprisonment for one year. The learned Special Judge also recommended a payment of Rs.7 lakhs as compensation to the survivor under the Sikkim Compensation to Victims (or their Dependents) Scheme, 2021. The appellant has preferred this appeal challenging the conviction and sentences.

#2. The introduction to the POCSO Act states that sexual offences against children are not adequately addressed by the existing laws. A large number of such offences are neither specifically provided for nor are they adequately penalised. Such offences against children need to be defined explicitly and countered through adequate 3 Crl Appeal No. 29 of 2024 Yeshay Lepcha vs. State of Sikkim penalties as an effective deterrence. The POCSO Act provides for protection of children for offences of sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well being of children.

#3. Sexual exploitation and sexual abuse of children are heinous crimes and need to be effectively addressed. Genesis of the prosecution

#4. On 03.10.2023 the victim‟s friend (P.W.9) informed the teacher (P.W.1) about the disclosure made by the victim (P.W.7) to her. The teacher (P.W.1) informed the victim‟s class teacher (P.W.17) that the victim‟s friend (P.W.9) had reported about the victim being harassed by the appellant. This matter was then reported to the Principal‟s office. On the Principal‟s advice the teacher (P.W.1) and the class teacher (P.W.17) took the victim to the police station. The victim was unable to open up at the police station. The police therefore, advised them to take the victim to the one stop centre. At the one stop centre the victim revealed to the case worker (P.W.8) that she was being sexually assaulted by her paternal uncle and there was also history of forceful sexual penetration on her and further that the 4 Crl Appeal No. 29 of 2024 Yeshay Lepcha vs. State of Sikkim last incident of sexual assault took place on 29.09.2023. As the police were all engaged that day, the case worker

(P.W.8) went to the police station and lodged the First Information Report (FIR) (exhibit P-10) on the next day i.e.

04.10.2023 against the appellant. On the same day the victim was examined by the Medical Officer (P.W.16). The victim discloses to her that she used to stay with the appellant and his children at Sxxxx (name redacted) since childhood. During her childhood the appellant used to touch her over her private parts, but since last two months he advised her to stay in a separate room which previously counted as sitting room/guest room and after this incident when she shifted he usually came to her room and touched her private part and even had sexual intercourse with her several times. The last sexual intercourse took place on

29.09.2023. The victim also informed her that there was penetration of the penis into the vagina. The victim gave positive report for masturbation of the appellant by the victim/forced manipulation of genitals of appellant by the victim. She disclosed that ejaculation occurred outside body orifice-vaginal area. She also complained about touching and fondling of breast and vagina. These facts were recorded by the Medical Officer (P.W.16) in her 5 Crl Appeal No. 29 of 2024 Yeshay Lepcha vs. State of Sikkim medical report (exhibit P-23) dated 04.10.2023. On examination of the victim the Medical officer recorded that her labia majora was enlarged, in labia minora there was erythema of skin with ulcerative type vision on the inner mucosa of perineal region and had creamy coloured vaginal discharge. There was tear at the hymen perineum at 6 O‟ clock position. The Medical Officer (P.W.16) was of the opinion that expert opinion/OBG consultation was required. Thereafter, on 09.10.2023 the victim was examined by the Consultant (P.W.15) Department of OBG. The victim informed the Consultant (P.W.15) that she had been molested by the appellant since childhood. He used to touch her body parts. They used to stay together. She was sexually assaulted multiple times by the appellant. She did not mention for how many years. The last incident of sexual abuse was on 29.09.2023 when he had come to her house at around 2300 hours to 0000 hours on the following day and forced her to sexual intercourse. The victim also informed the Consultant (P.W.15) that the appellant used to lure her with money. She usually would be sleeping at the time of the incident. The penetration was in her genitalia. She also gives positive report masturbation of the appellant by the victim/forced 6 Crl Appeal No. 29 of 2024 Yeshay Lepcha vs. State of Sikkim manipulation of genitals of the appellant by the victim and the ejaculation used to occur outside the body orifice. There was touching and fondling of breast and vagina involved. There was history of vaginal discharge since the incident of sexual violence. She recorded this history as informed by the victim in her medico legal examination report (exhibit 21) proved by her. The Consultant (P.W.15) noted that the hymen perineum was found absent i.e. the hymen was not intact. Since the victim complained of itching and discharge in the par vagina, she prescribed sexually transmitted prevention treatment. According to the Consultant (P.W.15) once a person is exposed to recurrent sexual activity, there are complaints of itching and unusual discharge from the vagina and it is important for the person to get treatment. The Consultant‟s (P.W.15) final opinion was that recent or past act of sexual intercourse could not be ruled out.

#5. The process of criminal investigation against the appellant started when the victim, now twenty years old, shared her ordeal with her friend (P.W.9). The delay in reporting the crime and the truth and veracity of the deposition of the victim is questioned by the appellant. 7 Crl Appeal No. 29 of 2024 Yeshay Lepcha vs. State of Sikkim The Final Report and the indictment

#6. The investigation led to the filing of the charge sheet against the appellant who was found to have prima facie committed the offences under section 376 IPC read with section 5(l), (n), (p)/section 6 of the POCSO Act on the victim more than once from her childhood despite being a relative through blood. The Charges

#7. Seven charges were framed by the learned Special Judge on 09.02.2024 under section 9(l), 9(m) and 9(n) of the POCSO Act for commission of offence from the year 2010 onwards. The appellant was also charged commission of aggravated penetrative sexual assault under section 5(l) and 5(n) of the POCSO Act and section 376(2)(f) and 376(2)(n) of the IPC from the year 2010 till 29.09.2023. The appellant pleaded not guilty and claimed trial. The Trial

#8. During the trial nineteen prosecution witnesses were examined. The examination of the appellant under section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.) was conducted on 12.07.2024. In his defence the appellant 8 Crl Appeal No. 29 of 2024 Yeshay Lepcha vs. State of Sikkim stated that he was a man who has achieved a lot of things in life, given shelter to the victim as she was in a sad state after her mother passed away. He had given good education and was strict with her so that she would do well in life. However, she did not like him being strict and lodged the false complaint against him. He claimed innocence and stated that he had defence witnesses to examine. The appellant examined seven defence witnesses including himself. To a specific question in section 313 Cr.P.C. examinations on the incident of 29.09.2023 the appellant stated that he was at Sxxxx (name redacted) on the relevant date. SUBMISSIONS

#9. Mr. Sudesh Joshi, learned counsel appearing for the appellant submitted that the deposition of the victim is not of sterling quality. It suffers from several discrepancies. The victim had complained about the alleged sexual assaults when she was twenty years old and an adult. The complaint was about sexual assault before she was in the 5th or 6th standard in a general nature except the allegation of rape by the appellant on 29.09.2023 which she did not depose about in her deposition in court 9 Crl Appeal No. 29 of 2024 Yeshay Lepcha vs. State of Sikkim although she had specifically talked about it in her statement recorded under section 164 Cr.P.C.. Although the victim had reported about the alleged incident of rape on her on 29.09.2023 even to the Medical Officer (P.W.16) who examined her on 04.10.2023 and the Consultant (P.W.15) their opinions were not conclusive of rape or sexual assault. Further, even the opinion of the Consultant (P.W.15) who examined her on 09.10.2023 was only that recent or past act of sexual intercourse could not be ruled out. Relying upon the depositions of seven defence witnesses it is submitted that the defence had been able to establish his alibi that on 29.09.2023 the appellant was not at Mxxxx (name redacted) the alleged place of occurrence but at Sxxxx (name redacted). The deposition of the younger brother (D.W.6) of the victim confirmed that in fact on 29.09.2023 the appellant was not in the house. It was submitted that the evidence of defence witnesses was not given equal weightage by the learned Special Judge and their evidence incorrectly examined.

#10. The learned Public Prosecutor while submitting that the conviction of the appellant under the POCSO Act may not be interfered with fairly conceded that the victim had not specifically mentioned the date of the last incident i.e. 10 Crl Appeal No. 29 of 2024 Yeshay Lepcha vs. State of Sikkim

29.09.2023. It was submitted that the evidence of the victim could not be demolished during cross examination. The victim‟s testimony finds corroboration in the deposition of the victim‟s friend (P.W.9), the teacher (P.W.1) the class teacher (P.W.17), the case worker (P.W.8), the Medical officer (P.W.16) and the Consultant (P.W.15). It submitted that the defence witnesses have been found to be unreliable by the learned Special Judge. The Consideration

#11. For the purpose of establishing the age of the victim the prosecution examined the father of the victim (P.W.6) who had obtained her birth certificate (exhibit P-7); the victim who confirmed her date of birth as 20.01.2003 and identified her birth certificate (exhibit-P-7); the Medical Officer as well as Registrar, Birth and Deaths, Cxxxx (name redacted) Primary Health Centre Mxxxx (name redacted) (P.W.2) who had furnished the details of the victim‟s birth as found in the Live Birth register; the Medical Officer and in charge Registrar Births and Deaths (P.W.4) who issued the birth certificate (exhibit-P-7) of the victim; the appellant‟s wife (P.W.11) from whose possession birth certificate (exhibit-P-7) was seized vide seizure memo 11 Crl Appeal No. 29 of 2024 Yeshay Lepcha vs. State of Sikkim (exhibit P-16) and who identified the birth certificate of the victim and her signature at the back of the birth certificate (exhibit P-7); P.W.13 and P.W.14 who were the witnesses to the seizure of the birth certificate (exhibit P-7) vide seizure memo (exhibit P-16); Head Mistress (P.W.3) of the Primary School attended by the victim, who furnished the information about the age of the victim as found in the school admission register (exhibit P-6); the Head Master of Government Primary School (P.W.5) who had filed the school admission register (exhibit P-6) and identified his signature thereon; the Principal (P.W.10) of the School where the victim had studied who provided information about the date of birth of the victim i.e. 20.01.2003 as per the School records.

#12. The original birth certificate (exhibit P-7) of the victim is a public document was produced by the prosecution. The victim‟s father (P.W.6) identified it as the one obtained by him from the Primary Health Centre. Although, during cross-examination the victim‟s father (P.W.6) deposed that he did not know the victim‟s age he clarified stating that the date of birth of the victim was mentioned in the birth certificate (exhibit P-7). The birth certificate (exhibit P-7) records the victim‟s date of birth as 12 Crl Appeal No. 29 of 2024 Yeshay Lepcha vs. State of Sikkim

20.01.2003. The appellant‟s wife (P.W.11) confirmed that the birth certificate (exhibit P-7) was seized from her possession and it bore her signature at the back. The Investigating Officer (P.W.19), P.W.13 and P.W.14 the two seizure witnesses confirmed the seizure. The victim admittedly was staying with the appellant and his wife (P.W.11). The Medical Officer, in charge Registrar, Births and Deaths (P.W.4) confirmed that he had issued the birth certificate (exhibit P-7) of the victim. The Medical Officer, as well as Registrar, Births and Deaths (P.W.2) provided the details of the victims as recorded in the Live Birth register produced in the original and certified extract (exhibit P-3) proved in court. According to the Live Birth register her date of birth was also 20.01.2003. The Head Mistress of the Government Primary School (P.W.3) which the victim attended also recorded her date of birth as 20.01.2003 in the admission register maintained by the school. The Head Mistress (P.W.3) produced the original admission register for the inspection of the Court and exhibited the extract thereof (exhibit P-6). The Head Master of the Government Primary School (P.W.5) who made the entry in the school admission register confirmed the same. The Principal of the Senior Secondary School (P.W.10) also deposed that as per 13 Crl Appeal No. 29 of 2024 Yeshay Lepcha vs. State of Sikkim his school record of the victim the date of birth recorded was 20.01.2003. The investigating officer (P.W.19) confirmed the seizure of all these exhibits relating to the birth of the victim by him. The date of birth of the victim has been sufficiently proved as 20.01.2003. The victim would have therefore attained majority on 20.01.2021. We are not in agreement with the findings of the learned Special Judge that the prosecution has failed to establish the date of birth of the victim.

#13. The evidence led by the prosecution reflects that the scene of the crime is set in a semi rural area. The appellant was the “Panchayat” of Sxxxx (name redacted). He was a married man with several children. He also had another wife living in Mxxxx (name redacted). The house where the victim was allegedly sexually abused and raped was located in Pxxxx (name redacted). The victim‟s father (P.W.6) was a government employee as per his deposition and unemployed as per the deposition of the appellant‟s wife (P.W.11). The victim‟s mother had passed away when she was in the 2nd grade of Sxxxx (name redacted) Primary School. The appellant had in the year 2010 taken the victim to Mxxxx (name redacted) for her further studies when she was 5 to 6 years of age. 14 Crl Appeal No. 29 of 2024 Yeshay Lepcha vs. State of Sikkim

#14. The FIR (exhibit P-10) was lodged on 04.10.2023 by the case worker (P.W.8) of the one stop centre on the version of the victim. The FIR (exhibit P-10) complains about sexual offences against the victim for the past many years as well as the recent incident of sexual intercourse without consent on 29.09.2023. The FIR (exhibit P-10) was lodged within four days of the alleged incident of

29.09.2023. The victim was an adult when she decided to speak about the alleged sexual abuse committed on her by the appellant over a long period of time even prior to when she was in the 5th or 6th standard. According to the victim‟s friend (P.W.9) during August 2023 while walking to school the victim disclosed to her about the appellant inappropriately touching her and sexually abusing her.

#15. On 03.10.2023 the victim‟s friend (P.W.9) reported to the teacher that the victim was being harassed by the appellant. The victim did not attend the school that day. The victim‟s friend (P.W.9) immediately shared information with the teacher (P.W.1). The teacher (P.W.1) informed the class teacher (P.W.17) about it the same day. The teacher (P.W.1) and the class teacher (P.W.17) took the victim to the police station where the victim became nervous and therefore, they were advised to take the victim 15 Crl Appeal No. 29 of 2024 Yeshay Lepcha vs. State of Sikkim to the one stop centre. The victim disclosed to the case worker (P.W.8) that she was being sexually assaulted by the appellant since long time and there was history of forceful sexual penetration on her. The last incident of sexual assault took place on 29.09.2023. The FIR (exhibit P-10) also reported the commission of sexual offence for past many years without the victim‟s consent. The FIR (exhibit P-10) also specifically mentioned that the last incident of sexual abuse was on 29.09.2023.

#16. Considering the fact that the prosecution has not been able to produce direct evidence in support of the victim‟s deposition regarding the past incidents of sexual abuse which allegedly started when she was a child it would be vital to examine if the allegation of sexual abuse made by the victim was true. The victim has stated about it in specific detail in her statement recorded under section 164 of the Cr.P.C.. However, we find that the victim has not mentioned the date i.e. 29.09.2023 in her deposition in court.

#17. The victim‟s statement recorded under section 164 Cr.P.C. (exhibit P-9) states about the appellant caressing her breast and private part by inserting his hand 16 Crl Appeal No. 29 of 2024 Yeshay Lepcha vs. State of Sikkim underneath the clothes when she was studying in Mxxxx (name redacted) Senior Secondary School. It also states that she had told the appellant‟s wife (P.W.11) and her sister about it who changed her room to the sitting room. She stated that whenever the appellant used to come to the house he would come to the sitting room area and caress her breast and private part. She stated about sexual molestation by the appellant and rape. She vividly described the incident of 29.09.2023 in detail mentioning that it happened in the sitting room of the house. During her deposition in court, the victim identified her 164 statement (exhibit P-9) as the one recorded in court.

#18. During the trial the victim deposed about the commission of sexual abuse being committed in three broad periods.

#19. First was the period prior to the victim being in the 5th or 6th standard. Considering the fact that the victim was twenty one years and had appeared in the 12th standard board examination when she deposed about it the incident relating to this period would be at least several years prior. 17 Crl Appeal No. 29 of 2024 Yeshay Lepcha vs. State of Sikkim

#20. The second period relates to the time when the appellant and his wife were staying in Dxxxx (name of the place redacted) and the victim and the three sons of the appellant were staying at Pxxxx (name of the place redacted). The victim alleged that when the appellant visited them at Pxxxx (name of the place redacted) he would ask her to come to his room and although she would sleep with his sons the appellant would come to her bed and force himself on her and she would be raped by him many times. The victim did not provide any details with regard to the timeline when these incidents transpired.

#21. The third period relates to a period when the victim started sleeping in the sitting room. The victim did not give any reference to a timeline about this period as well although she deposed that the appellant used to come to the sitting room and rape her. According to the victim after this she told her two friends about it who reported it to their teacher and thereafter the matter was reported to the police.

#22. Although the victim did not specifically mention the date of the last incident i.e. 29.09.2023 a holistic reading of her deposition does indicate that in fact she was talking 18 Crl Appeal No. 29 of 2024 Yeshay Lepcha vs. State of Sikkim the sexual crime committed recently. The prosecution had the victim examined on 04.10.2023 by the Medical Officer (P.W.16) on the same date when the FIR (exhibit P10) was lodged against the appellant.

#23. In matters of sexual crime the court is always faced with the dichotomy of whether to believe the victim as rarely would one find such crimes committed in the presence of others. It becomes even more trying for the court when one has to rule on the truthfulness of the victim‟s statement when she deposes about sexual assaults several years before the complaint. The Supreme Court however, has laid down the fundamental rule of a “sterling witness”. If this rule of a sterling witness is followed and the victim‟s testimony tested, it would be easier for the court to administer criminal justice to victims of sexual crimes. If the victim‟s testimony qualifies as that of sterling witness it would be prudent to convict the appellant on her sole testimony. After examining the judgment of the Supreme Court in Rai Sandeep vs. State (NCT of Delhi)1 and Krishna Kumar Malik vs. State of Haryana2 in the words of