THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
DATED : 21st of July, 2021
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DIVISION BENCH: THE HON’BLE MR. JUSTICE JITENDRA KUMAR MAHESHWARI, CHIEF JUSTICE
THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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Crl.A. No.09 of 2020
Appellant : State of Sikkim
versus
Respondent : Jigmee Bhutia

Appeal under Section 378 (1)(b)
of the Code of Criminal Procedure, 1973
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Appearance
Mr. Sudesh Joshi, Public Prosecutor with Mr. Sujan Sunwar,
Assistant Public Prosecutor for the Appellant.
Mr. N. Rai, Senior Advocate with Mr. Yozan Rai, Advocate for the
Respondent.
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JUDGMENT

Meenakshi Madan Rai, J.

1. Dissatisfied with the Judgment in Sessions Trial (F.T.)

Case No.17 of 2018, dated 29.08.2019, vide which the Respondent

Appeal has been preferred.

2. Assailing the findings of the Learned Trial Court, the

Learned Public Prosecutor, before this Court, contended that there

was sufficient and cogent evidence to establish the Prosecution

case against the Respondent. That, in a plethora of Judgments, the

Hon‟ble Supreme Court has held that conviction on the sole

testimony of a victim is permissible and requires no corroboration.

represented by its Inspector of Police1. That, the case of the victim

has been consistent in the First Information Report (for short,

trial. That, her testimony has been duly corroborated by the

evidence of P.Ws.2, 3, 4, 6 and 7, which the Learned Trial Court

overlooked. That, a woman who is a victim of sexual assault is not

an accomplice to the crime but stands at a higher pedestal than an

injured witness as she suffers from emotional injury, to support

Imran Khan vs. State Government (NCT of Delhi) 2. It was further urged

that the evidence of the Prosecution Witnesses have withstood the

test of cross-examination, hence the Learned Trial Court was in

error in arriving at the finding that due to differences between the

Respondent and the victim on account of a debt owed by her to the

Respondent, the possibility of false implication could not be ruled

out. That, this observation was based solely on the evidence of the

Cr.P.C., the Respondent merely denied having committed the

offence but did not explain the circumstances of his presence in the

victim‟s house. Hence, the impugned Judgment be set aside and

the Respondent be convicted of the offences that he was booked

under.

3. Resisting the arguments of the Learned Public

Prosecutor, Learned Senior Counsel for the Respondent submitted

that it is the bounden duty of the Prosecution as per law, to prove

its case beyond a reasonable doubt, however, no incriminating

evidence has emerged against the Respondent. That, P.W.7, the

Doctor, who examined the victim and P.W.9, the Scientific Officer

of the Regional Forensic Science Laboratory (for short, “RFSL”),

Saramsa, East Sikkim, who examined the Material Objects, were

unable to detect any evidence to indicate involvement of the

Respondent in the alleged crime. That, the Respondent and the

victim were, in fact, known to each other, as emanates from the

evidence of D.Ws.1, 2 and 3 and since she was unwilling to repay

the amount owed by her to the Respondent for purchases made by

her from D.W.1, the Respondent‟s wife, she chose to settle the

score by implicating him in a false case. Learned Senior Counsel

put forth the alternative argument that the Respondent was at the

victim‟s house with her consent. Hence, the conclusion of the

Learned Trial Court requires no intervention. To bolster his

contentions, Learned Senior Counsel placed reliance on Alok Debroy

and Another vs. State of Assam3, Panua alias Pravat Kumar Chand vs.

State of Orissa4 of the Hon‟ble High Court of Orissa, and (Cr. Appeal

30 of 2011) Pratap Chand vs. State of H.P. and (Cr. Appeal No.31 of

5
2011) Duni Chand vs. State of H.P.

4. Before embarking on examining the merits of the

matter, it would be appropriate to briefly narrate the facts of the

Prosecution case for clarity. On 31.07.2017, at around 21:40 Hrs,

P.W.1, the Prosecutrix, lodged the FIR, Exhibit 1, before the

Singtam Police Station informing that at around 18:30 Hrs the

same evening, an unknown person had entered her house on the

pretext of requesting her for a glass of water and then raped her.

Based on the FIR, Singtam P.S. Case No.56/2017, dated

Respondent. During investigation it emerged that the Respondent

entered the house of the Prosecutrix, carried her to a room on the

second floor of her house, tore off her clothes and committed

penetrative sexual assault on her. Despite resistance, she was

unable to fend off his assault and her screams went unanswered,

her house being isolated from other houses. After the incident, the

Respondent allegedly stayed in the room where the incident

occurred, while she escaped and telephonically contacted P.W.3,

her mother, narrating the incident to her. P.W.3 advised her to call

the Police. Instead, she called P.W.6, the Panchayat President of

Martam, Lingtam Ward, who incidentally is her maternal uncle, as

the Police number was not known to her and narrated the incident

to him as well. P.W.6 called the Police upon which, both P.W.6 and

P.W.3 then reached the place of occurrence (for short, “P.O.”).

They found the Respondent inside the room and on coaxing by the

Police, he opened the door, after which he was taken to Singtam

Police Station by P.W.2 ASI Tashi Pincho Bhutia. He was arrested

that night around 01:10 Hrs (i.e. of 01.08.2017). On completion of

investigation, Charge Sheet was submitted against the Respondent

Witnesses were examined, on closure of which, the Respondent

the incriminating evidence against him. He denied any involvement

in the offence and examined three witnesses in his defence.

Arguments of the parties were finally heard and the Learned Trial
Crl. A. No.09 of 2020 5
State of Sikkim vs. Jigmee Bhutia

Court, finding that the Prosecution had failed to prove its case

beyond a reasonable doubt, extended the benefit of doubt to the

Respondent and acquitted him of all Charges supra.

5. In the backdrop of the submissions of Learned Counsel

for the Appellant that conviction on the sole testimony of the

Prosecutrix is permissible, it is firstly to be examined as to whether

the evidence of the Prosecutrix is reliable, trustworthy and of

sterling quality to inspire the confidence of this Court. It is also to

be examined as to whether the Prosecution has proved its case

beyond reasonable doubt or whether the Learned Trial Court erred

in acquitting the Respondent.

6.(a) The Prosecutrix, examined as P.W.1, deposed that the

Respondent came to her house, stood near the entrance of her

building and asked her for a glass of water at which time, she

noticed that he appeared to be drunk and his eyes were red.

Pausing here for a moment, while reverting to Exhibit 1, the FIR

identified by her before the Court, it is clear that she has made an

effort to improve her case during trial, since neither in Exhibit 1 nor

in Exhibit 2, has she stated that the Respondent appeared to be

drunk. This Court is conscious that an FIR is not an encyclopaedia

but immediate relevant facts would obviously have been recorded

in it, although unnecessary details may not have been noted.

P.W.2, the Police personnel who took the Respondent to the Police

Station did not observe that the Respondent appeared to be drunk,

while P.W.10, the Medical Officer of District Hospital, Singtam, who

examined the Respondent on 01.08.2017, at 12.40 a.m., deposed

inter alia as follows;

Crl. A. No.09 of 2020 6

On local examination he had no external
injuries. ……”

(Emphasis supplied)

P.W.6 was witness to the Respondent coming out from the room

and thereafter being taken away by the Police but makes no

mention of him being drunk. P.W.12, the Investigating Officer (for

short, “I.O.”) formally arrested the Respondent but does not state

that when he forwarded the Respondent for medical examination,

he noticed that he was drunk.

(b) That having been said, it is the case of the Prosecution

that the Respondent caught hold of the Prosecutrix‟s neck, carried

her to a room in her house forcefully, tore off her clothes and

committed rape on her. It is worth mentioning that the torn clothes

of the Prosecutrix finds no place in the Material Objects exhibited

by the Prosecution before the Learned Trial Court. In the same

thread, it may be noticed that the Prosecutrix has not described

which article of her clothing was torn by the Respondent or that the

Police seized the said torn clothes, neither does P.W.2, the Police

personnel who was the first person to reach the P.O. after the

alleged incident, make any mention of seeing the victim in torn

clothes. P.W.3, the victim‟s mother, testified that the victim had

informed her that the Respondent had torn off her clothes and then

raped her but she too failed to enlighten the Court of the state of

the Prosecutrix‟s clothes, whether she saw the Prosecutrix wearing

torn clothes, or that the Police had seized such clothes from the

Prosecutrix. P.W.4, the father of the Prosecutrix, stated that the

Prosecutrix had informed him that one person had entered her

fact, makes no mention of rape on the Prosecutrix. This witness

found the Prosecutrix standing in the court yard of her house when

he reached there. He noticed that she was wearing her night dress

but did not state that it was torn. P.W.6 too reached the P.O. and

witnessed the Police giving the Respondent his clothes through the

ventilator of the room, which was allegedly locked from the inside

but his evidence does not reveal that the Prosecutrix was wearing

torn clothes, although he had witnessed P.W.3 and the Prosecutrix

standing outside her house. P.W.7 was the Doctor who examined

the victim at 12.10 a.m. on 01.08.2017, the alleged assault having

taken place at 6.30 p.m. on 31.07.2017. He makes no mention of

any torn clothes on the person of the Prosecutrix, nor was any such

item of clothing forwarded to P.W.9, the Scientific Officer at RFSL,

Saramsa, for analysis. P.W.12, the I.O., furnished no evidence of

seizure of the alleged torn clothes neither did he state that he

found her in such a state or that she showed him the said clothes.

Hence, the testimony of the Prosecutrix with regard to her torn

clothes appears to be a figment of her imagination totally devoid of

truth and unsubstantiated by evidence.

7.(a) Secondly, there are glaring anomalies regarding the

time when P.W.1 reported the incident to P.W.3 and P.W.6.

According to her, the incident occurred at 6.30 p.m. After the

Respondent allegedly pushed her away, she had the opportunity to

flee from the room whereupon she telephonically informed P.W.3

about the incident. P.W.3, however, stated that she received the

call from P.W.1 informing her of the incident at around 9 p.m. to

10 p.m. According to P.W.6, he too received telephonic information

the alleged incident. As per P.W.1, her information to P.W.6 was

only telephonic, while P.W.6 under cross-examination, revealed

that after the phone call, P.W.1 personally came to his house when

he did not go to her house in response to her call. P.W.1 has

nowhere divulged that she visited the house of P.W.6. after making

a call to him. P.W.6 revealed further that it was only after about

one hour of the call of P.W.1 that he, along with the Police

personnel, reached her house.

(b) Added to this, is the anomalous evidence of P.W.2, who

stated that Head Constable, one Lakpa Tshering Bhutia of Sang

Police Out Post, received a call from P.W.6 on 31.07.2017, at

around 7 p.m. to 7.30 p.m., informing that the Respondent had

entered the Prosecutrix‟s house. Contrarily, P.W.6, as reflected

supra, duly supported by the evidence of P.W.2, individually reveal

that they received the call from the Prosecutrix at 9 p.m. to 10

p.m., rendering the Prosecution story suspicious, besides pointing

towards shoddy investigation and non-verification of necessary

facts. If P.W.2 and P.W.6 received the call from P.W.1 at 9 p.m. to

10 p.m., it is rather strange that the Police Out Post received the

information from P.W.6 at 7 p.m. to 7.30 p.m. This inconsistency

remains unexplained by the Prosecution.

(c) According to P.W.2, after the Head Constable of the

Out Post informed him of the call from P.W.6, he informed his

Senior Officer at the Singtam Police Station, who directed him to go

to the Prosecutrix‟s house, which he complied with, taking along

with him the said Head Constable. The Head Constable, however, is

not a Prosecution Witness for unexplained reasons. P.W.6 further

deposed that after he informed the Police personnel at the Out
Crl. A. No.09 of 2020 9
State of Sikkim vs. Jigmee Bhutia

Post, they arrived at his house and he along with them viz., one

Eden Bhutia and Bhai Bhutia, went to the house of the Prosecutrix.

Both Eden Bhutia and Bhai Bhutia are not witnesses in the instant

case thereby leading this Court to draw an adverse inference under

evidence of P.W.2 belies the evidence of P.W.6 with regard to him

(P.W.6) having been accompanied by Police personnel to the P.O.

The Prosecutrix also does not state that P.W.6 came to her house

together with any Police personnel. According to her, the Police

came to her house about half an hour to one hour after the call.

That, P.W.6 also came to her house and knocked on the door of the

room where the Respondent was present. The Prosecution story on

the above discussed aspects are haphazard, inconceivable and

thereby fails to convince this Court of the events that transpired.

8. Another relevant factor is that according to the

Prosecutrix, her mother P.W.3, lives about twenty minutes away

from her house but P.W.3 to the contrary, stated that the

Prosecutrix lives at a distance of about five minutes walk from her

residence. The house of P.W.6, as stated by him, is at a distance of

about five to eight minutes walk from the house of the Prosecutrix.

This leads one to mull over as to why the Prosecutrix did not take

shelter in her mother‟s house after having fled from the room, or

why P.W.3 and P.W.6 went belatedly to her house when it was a

short walk from their respective residences. The veracity of the

evidence of the Prosecutrix and the Prosecution witnesses do not

inspire confidence and appear to be far-fetched, as the evidence

discussed above is rife with contradictions at every turn.
Crl. A. No.09 of 2020 10

9. While considering the medical evidence of the

Prosecutrix, the incident allegedly occurred at around 6.30 p.m. on

31.07.2017. She was forwarded to the District Hospital, Singtam

where she was examined by P.W.7, the Consultant Gynaecologist

at 12.10 a.m. of 01.08.2017 viz., after about five hours of the

alleged incident. She had not bathed or changed her clothes after

the alleged incident, as stated by her to P.W.7. P.W.7 prepared his

Report, Exhibit 4. He deposed inter alia as under;

“……I examined the victim after taking due
consent from her.

On my examination the victim was conscious,
cooperative and all her vitals were stable.

On local examination;

One bruise was found over her right neck(sic)
and four bruises were found over her left neck(sic).
There were no bleeding from the bruises. No injury
or bleeding was present over the breast(sic),
abdomen and other parts of the body.

Per vaginal inspection-No any(sic) bruise,
injury present over the Perineal region, vulva and
vagina.

Per vaginal examination-No fresh injury
present over the hymen and vagina.

Vaginal swab and vaginal wash was collected
and sent for examination to determine the presence
of spermatozoa. Urine for pregnancy test was found
to be negative. ……”

(Emphasis supplied)

The medical examination thus revealed no fresh injuries on the

person or the genital of the Prosecutrix despite her claim of use of

force by the Respondent. The Doctor went on to identify MO I and

MO II as the glass vials containing the vaginal wash and vaginal

swab respectively, of the Prosecutrix collected by him. Under cross-

examination, it came to light inter alia as follows;

“……I asked the patient whether she had taken
a bath or wash(sic) her clothes after the alleged
incident and in reply to that she said she had
neither taken a bath nor washed her clothes.

I had taken the vaginal wash and vaginal swab
on the request of the police. I have also answered in
my medical report Exbt. 4, the other requests made
by the I.O. It is true that in my medical report Exbt.
4, I have mentioned “the patient refused to give her
undergarments and other clothing for examination”.

I am not able to identify the signature of the
Pathologist in Exbt. 4 who has given his/her opinion
as “no motile/non-motile spermatozoa seen in the
sample studied.”

Crl. A. No.09 of 2020 11

(Emphasis supplied)

P.W.7 recorded in Exhibit 4 that the Prosecutrix refused to give her

undergarment and other clothing for examination with no reason

assigned by her for such refusal and investigation too is silent on

this count. The age of the bruises found on the left and right

portion of the Prosecutrix‟s neck, was not disclosed by P.W.7,

hence, it is not clear whether the bruises were fresh and thereby

allegedly caused by the Respondent or whether they were old

injuries. The examination of the vagina of the victim too revealed

no fresh injuries although she claimed to have been forcibly raped,

thereby raising doubts about her allegation of penetrative sexual

assault.

10.(a) Along with the evidence of P.W.7 supra, it is relevant to

examine the evidence of P.W.9, the Scientific Officer, RFSL. She

examined MO I and MO II (detailed supra). She also examined MO

III, the underwear of the Respondent and MO IV and MO V, two

glass vials containing the penile swab of the Respondent. In these

Exhibits, neither blood nor semen, or any other body fluid could be

detected.

(b) The collective evidence of P.W.7 and P.W.9, when

meticulously examined, fail to establish that the Prosecutrix had

been subjected to rape by the Respondent nor did the Prosecution

fortify their case with any other evidence. The medical and

scientific evidence therefore fail to support the Prosecution case.

(c) The Pathologist who had given his/her opinion on

Exhibit 4 regarding the absence of motile or non-motile

spermatozoa in the samples studied, was not made a Prosecution
Crl. A. No.09 of 2020 12
State of Sikkim vs. Jigmee Bhutia

witness. P.W.10, the Medical Officer who examined the Respondent

at District Hospital, Singtam stated that he did not detect any stain

marks on MO III, the undergarment of the Respondent.

11.(a) This Court is aware of the settled position of law that

every rape victim need not have injuries on her body to prove her

inter alia, as follows;

“18. ………………The absence of visible marks of
injuries on the person of the prosecutrix on the date
of her medical examination would not necessarily
mean that she had not suffered any injuries or that
she had offered no resistance at the time of
commission of the crime. Absence of injuries on the
person of the prosecutrix is not necessarily an
evidence of falsity of the allegation or an evidence of
consent on the part of the prosecutrix. It will all
depend on the facts and circumstances of each case.
……”

However, the Prosecution must establish with some trustworthy

evidence that the Prosecutrix had indeed been subjected to sexual

assault which, in the instant matter, has not been furnished.

(b) It may relevantly be noted here that after having

committed a heinous offence, in the ordinary course of human

nature, the first instinct of an accused would be to flee the place of

occurrence but the incongruously unbelievable version of P.W.1 is

that the Respondent continued to stay inside the room where he

had committed the alleged offence and bolted himself from inside

to boot. The evidence of P.W.6 is to the effect that P.W.1 had

visited his house subsequent to the call made by her. It is rather

surprising that in that interval the Respondent although left alone,

still made no effort to escape. No investigation was conducted on

this aspect. P.W.1 is evidently spinning a yarn regarding the

incident which fails to find substantiation by evidence.

reference has been made by the Hon‟ble Supreme Court, to a

catena of decisions wherein it was observed that conviction can be

based on the sole testimony of the victim with the caveat that such

testimony must be found to be reliable and trustworthy.

Consequently, we cannot lose sight of the fact that a sole witness

must be a sterling witness and the evidence given by her must be

cogent, consistent and the version of the events should be

unassailable. On the anvil of these enumerated qualities, we are

constrained to opine that these are lacking in the instant case and

the Prosecutrix, in no way, can be described as a sterling witness.

Her solitary evidence is not trustworthy, cogent or unblemished.

(b) The Prosecution version that the Respondent has not

313 Cr.P.C. besides which, he also had the option of explaining it

represented by Inspector of Police, Salem Town, Tamil Nadu 8 observed

inter alia as under;

“……………………………………………………………………..

(Emphasis supplied)

(b) At this juncture, it may be noticed that the Respondent

produced three witnesses. The Prosecution was afforded fair

opportunity to cross-examine the witnesses. It emerged from the

evidence of D.Ws.1, 2 and 3 that the Respondent was not unknown

to the Prosecutrix as alleged by her but they had prior

acquaintance. Under cross-examination, D.W.1, the wife of the

Respondent, revealed that in the month of October, 2014, the

Prosecutrix had purchased a carpet from her shop on credit, the

cost of which was Rs.60,000/- (Rupees sixty thousand) only, and

Rs.10,000/- (Rupees ten thousand) only, was paid by the

Prosecutrix to D.W.1. D.W.3, evidently an acquaintance of D.W.1

deposed that the Prosecutrix had been introduced to him by the

Respondent as a relative of his wife. The evidence of the D.Ws.

adds to the doubts about the veracity of the evidence of the

Prosecutrix.

14. In consideration of the gamut of facts and

circumstances of the case, the contradictory evidence on record, as

discussed in detail hereinabove, the medical evidence and the

scientific evidence, all miserably fail to buttress the Prosecution

case. Thus, the evidence of the Prosecutrix definitely lacks the

quality of being sterling neither is it absolutely trustworthy.

Resultantly, we are in agreement with the finding of the Learned

Trial Court that the Prosecution has failed to prove its case beyond

a reasonable doubt. Hence, the impugned Judgment warrants no

interference whatsoever.

15. Consequently, we find no merit in the Appeal which

fails and is accordingly dismissed.

16. No order as to costs.

17. Copy of this Judgment be sent to the Learned Trial

Court, for information.

18. Lower Court Records be remitted forthwith.

( Meenakshi Madan Rai ) ( Jitendra Kumar Maheshwari )
Judge Chief Justice
21.07.2021 21.07.2021

ml Approved for reporting : Yes