Sonam Phintso Wangdi, J. - (1.) BY filing this Appeal, the Appellant seeks to assail the judgment dated 29 -04 -2013 passed by the Learned Judge, Fast Tract Court, East Sikkim at Gangtok in Sessions Trial Case No. 34 of 2013 by which he was convicted and sentenced for committing offence under Section 376 of the Indian Penal Code, 1860 (in short the "IPC").
(2.) BRIEFLY , the facts of the prosecution case is that, on a oral complaint lodged by one Shanti Gurung, P.W.1, that her daughter, Priyanka Gurung, P.W.2, aged about 7 years was raped by the Appellant on 25 -09 -2012, case under Sections 376/506 IPC was registered by the Officer -in -Charge, Sadar Police Station, Gangtok being FIR No. 121(09)12 dated 26 -09 -2012 against the Appellant and taken up for investigation. 3(i). During the course of the investigation, the victim Priyanka Gurung, P.W.2, was forwarded to the STNM Hospital, Gangtok, for medical investigation. The Investigating Officer (in short the "I.O."), P.W.11, visited and inspected the place of occurrence at Sunguray Dhunga, Merung Busty, East Sikkim, took photographs and prepared rough sketch map of the place of occurrence. The victim, the complainant and other witnesses conversant with the facts and circumstances of the case were examined and their statement recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C."). The statements of the victim girl, P.W.2 and one Nima Lhamu Sherpa, P.W.3 were also recorded under Section 164 Cr.P.C. by the Chief Judicial Magistrate, East and North Sikkim at Gangtok. The I.O. thereafter arrested the Appellant and was sent for medical examination. The wearing apparels of the victim were forwarded to CFSL, Kolkata, for comparison and analysis. (ii) Investigation revealed that the families of the victim and the Appellant were familiar with each other as they lived as neighbours at Merung, Chongey, East Sikkim. The Appellant who was a Nepal national, being a frequent visitor to her house was also familiar and known to the victim. On 25 -09 -2012 at about 1200 hours, the Complainant, Shanti Gurung, P.W.1, had gone to the nearby jungle to collect firewood leaving behind her ailing husband and two minor children at home. When she returned at about 1300 hours she found her victim daughter absent from home and when she enquired from her husband she was informed that she had left the house with the Appellant. The victim later returned home alone complaining of severe stomachache and then went to bed early. (iii) In the evening of 26 -09 -2012 at about 1700 hours when the Complainant, P.W.1, was engaged in her household chores, Nima Lhamu Sherpa, P.W.3, aged about 11 years and a friend of the victim, informed her that the victim had told her of the Appellant having done terrible things to her due to which she was suffering from severe pain and was unable to walk properly. The Complainant then immediately called her daughter and on being asked she disclosed that on 25 -09 -2012 when her mother, the Complainant, was away in the jungle collecting firewood, the Appellant arrived in the house and asked her to accompany him for sweets at the nearby shop of one Joseph Aunty, P.W.4. Unaware of the evil intentions of the Appellant, she accompanied him who first purchased few sweets from the shop and gave it to her and then led her behind "Sunguray Dhunga" where he suddenly pushed her on to the ground, lifted her skirt, pulled down her panties and sexually assaulted her. When she tried to scream due to pain and the trauma caused by the Appellant's assault, he covered her mouth with his palm to smother her cry but, by then she was profusely bleeding from her private part. On seeing this, the Appellant wiped the blood with some grass and asked the victim to wash her blood stained panties. The Appellant then washed it in a stream flowing below "Sunguray Dhunga", wrapped it in a newspaper and gave it back to the victim asking her to dry it at home threatening her of dire consequences if she revealed about the incident to anyone. (iv) On completion of the investigation, the I.O., P.W.11, having found sufficient evidence to make out a case against the Appellant under Sections 376/506 IPC read with Section 14 of the Foreigners Act, 1946 and Notification No. 848, charge -sheet was accordingly filed for his trial in accordance with law. (v) The Learned Fast Track Court having found sufficient material, framed charge under Section 376 IPC against the Appellant to which, when read over and explained, he pleaded not guilty and claimed trial.
(3.) In order to sustain their case, the prosecution examined 11 witnesses and after closure of the prosecution evidence the Appellant was examined under Section 313 Cr.P.C. during which he denied all the incriminating circumstances appearing against him. No defence witness was examined as the Appellant chose not to adduce any evidence in his defense. The Learned Fast Track Court upon examination of the prosecution evidence and after hearing the Learned Counsel for the parties, found the Appellant guilty of the charge under Section 376 IPC for having raped the minor victim girl of 7 years on 25 -09 -2012 and accordingly convicted him and sentenced to undergo imprisonment of 10 years and to pay a fine of Rs. 2,000/ - (Rupees two thousand) and in default of payment of the fine, to undergo further simple imprisonment for a period of two months duly setting off the period of detention already undergone by him.;