MEENAKSHI MADAN RAI, J. - (1.) THIS Appeal is directed against the Judgment and Order of Sentence passed by the Learned Judge, Fast Track Court at Gangtok in Sessions Trial (Fast Track) Case No. 53 of 2013, State of Sikkim Manna Das Bahun @ Manorath Upreti vs. State of Sikkim Vs. Manna Das Bahun @ Manorath Upreti on 28.02.2014. The Appellant was convicted under Section 376 IPC, 1860 and sentenced to undergo Simple Imprisonment for 7 (seven) years and to pay a fine of Rs.500/ -(Rupees five hundred) only, with a default clause of imprisonment.
(2.) IT was put forth by Learned Counsel for the Appellant/Convict, inter alia, that the Prosecution has failed to prove its case against the Appellant/Convict beyond reasonable doubt as witnesses furnished by the Prosecution had given contradictory and improved versions of the incident and the Victim herself did not support the case of the Prosecution. That, under cross -examination she has admitted that the Appellant/Convict did not abuse her or sexually assault her. As per her evidence during the time of the alleged incident, the wife of the Appellant/Convict and his sons and daughters were also present. If this be true, it cannot be believed that the Appellant/Convict committed the offence in the presence of his family members.
(3.) IN addition to the above, Learned Counsel for the Appellant/Convict urged that PW -20, the Gynaecologist, who examined the Victim has admitted that injuries reflected in Exb. -24, (the Medical Report of the Victim) can also be caused by a fall. PW - 20 has further admitted that at the time of the examination of the Victim, she was not of a definite opinion that the injuries which she had examined were due to sexual abuse and that if there was penile Manna Das Bahun @ Manorath Upreti vs. State of Sikkim penetration by an adult on a child of 3 years, then there would be profuse bleeding with excruciating pain. That, the I.O. in his evidence admitted that as the Victim was a minor, he could not enquire from her about the facts of the case but PW -2 her mother, had told the I.O. PW -23, that the Appellant/Convict had only committed "Dur Beuhar" on her minor daughter and the allegation of sexual assault had not been made against the Appellant/Convict. Moreover, PW -25 the Medico Legal Expert while examining the Appellant/Convict had not conducted any potency test on the Appellant/Convict and that the act of sexual intercourse by the Appellant/Convict on the Victim would have led to injuries, but no injuries were found on the private part of the Appellant/Convict. Thus, evidence led by the Prosecution is not cogent and reliable but vexed with contradictions and an improvement of the incident making the Prosecution case unreliable. Hence, it is prayed that the impugned Judgment and Order of Sentence convicting the Appellant/Convict under Section 376 of the IPC, 1860 be set aside. To buttress his submissions that the evidence of the Victim is not cogent or credible, Ld. Counsel has placed reliance on the following Judgments, i.e; 1. Tameezuddin alias Tammu vs. State (NCT of Delhi), 2009 15 SCC 566. 2. Vimal Suresh Kamble vs. Chaluverapinake Apal S.P. and Another, 2003 3 SCC 175. 3. (Chhattisgarh High Court) in Bhushan Narayan Nai v. State of Madhya Pradesh, 2007 CrLJ 1611 Manna Das Bahun @ Manorath Upreti vs. State of Sikkim ;