THE HIGH COURT OF SIKKIM : GANGTOK

(Criminal Appeal Jurisdiction)

DATED : 19

th

June, 2025

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DIVISION BENCH : THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE

THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE

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Crl.A. No.21 of 2024

Appellant : Arjun Kumar Prasad

versus

Respondent : State of Sikkim

Application under Section 374(2) of the

Code of Criminal Procedure, 1973

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Appearance

Ms. Neha Gupta, Advocate for the Appellant.

Mr. Yadev Sharma, Additional Public Prosecutor for the State-

Respondent.

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JUDGMENT

Meenakshi Madan Rai, J.

1. The Appellant was charged with the offence under

Section 5(j)(ii), punishable under Section 6 of the Protection of

Children from Sexual Offences Act, 2012 (hereinafter, “POCSO Act”)

and Section 376(1) of the Indian Penal Code, 1860 (hereinafter,

“IPC”). He was convicted for the POCSO offence ( supra) and

sentenced to undergo rigorous imprisonment for a term of twenty

years and to pay fine of ₹ 2,000/- (Rupees two thousand) only, with

a default stipulation, vide the impugned Judgment, dated 03 -04-

2024, in ST (POCSO) Case No.08 of 2022, of the Court of the

Special Judge (POCSO Act, 2012). For the offence under Section

376(1) of the IPC, the Court ordered that, he need not be convicted

for the same offence twice.

2. The genesis of the Prosecution case is the FIR Exbt P-

2/PW-2, lodged by PW-2 the victim’s sister, on 01-02-2022, before

Crl.A. No.21 of 2024 2

Arjun Kumar Prasad vs. State of Sikkim

the jurisdictional Police Station, informing that her sister, aged about

sixteen years, was taken to the District Hospital after she

complained of stomach pain. The Doctor informed PW -2 that, the

victim had miscarried, but the placenta remained inside. The victim

revealed to PW-2, on her enquiry that, she was involved in a sexual

relationship with the Appellant, in a hotel room, in the month of

November, 2021. Although she informed him of the pregnancy, he

paid no heed to her. A case was registered against the Appellant

under Section 5(j)(ii)/6 of the POCSO Act and investigation was

endorsed to PW-7, the Sub-Inspector at the PS.

(i) Upon completing her investigation, finding prima facie

materials against the Appellant, Charge-Sheet was submitted in the

Court. Charge was framed against the Appellant under Section

5(j)(ii) of the POCSO Act, punishable under Section 6 of the POCSO

(Amendment) Act, 2019 and under Section 376(1) of the IPC , to

which the Appellant claimed trial, having pled “not guilty”. The

Prosecution examined eight witnesses, upon closure of which, the

Appellant was afforded an opportunity under Section 313 of the

Code of Criminal Procedure, 1973 , to explain the incriminating

evidence against him. He claimed innocence and asserted that he

had been falsely implicated in the case. Final arguments of the

parties were heard. On appreciating the entire evidence on record,

the impugned Judgment of conviction and sentence were

pronounced by the Trial Court.

3. The Prosecution narrative is that, on 31-01-2022, the

victim was brought to the District Hospital, in the evening, with a

history of abdominal pain and bleeding since 28-01-2022. A urine

test indicated pregnancy. A specimen of the placenta was collected

Crl.A. No.21 of 2024 3

Arjun Kumar Prasad vs. State of Sikkim

and handed over for DNA analysis. It also emerged that the

Appellant and the victim had met through social media platform

(Facebook) in the month of March, 2021. The victim had sexual

intercourse with the Appellant in November, 2021. After the

incident, she missed two consecutive menstrual cycles which she

brought it to the notice of the Appellant , but was ignored.

Thereafter, the above circumstances unfolded.

4. Learned Counsel for the Appellant submitted that it is

the Prosecution case that on 31-01-2022 medical examination of the

victim was conducted. According to the Doctor, PW-4, her

examination per abdomen, revealed “22 weeks uterus PV Grade II

perineal tear, boggymass felt introitus ……………… and no fetus was

present”. If such be the circumstance, since the victim claims to

have had sexual intercourse with the Appellant in the month of

November, 2021, the gestation of the pregnancy would have been

about eight weeks. This is in direct contradiction to the finding of

PW-4, who opined that the uterus indicated twenty-two weeks

pregnancy. Thus, the victim’s evidence is not of sterling quality. To

buttress this submission, Counsel placed reliance on the decision of

the Division Bench of this Court in Cho Mingur Lepcha vs. State of

Sikkim

1

, wherein this Court was of the view that , the victim

appeared to be c oncealing the actual circumstances of her

pregnancy as she gave birth in May, 2020, after making claims of

being raped by the Appellant in December, 2019/January 2020. Her

evidence was rejected as being unreliable. Contending that the

circumstances appear to be similar in the instant case the victim’s

evidence it was urged deserves to be rejected.

1

2021 SCC OnLine Sikk 174

Crl.A. No.21 of 2024 4

Arjun Kumar Prasad vs. State of Sikkim

(i) It was next put forth that, the age of the victim was not

proved in terms of Section 94 of the Juvenile Justice (Care and

Protection of Children) Act, 2015, resultant, the Prosecution failed to

establish that she was a minor, in such circumstances, the offence

under Section 376(1) of the IPC cannot be held against the

Appellant as the act between them was admittedly consensual. The

Prosecution having failed to prove its case beyond reasonable doubt,

the impugned Judgment and Order on Sentence be set aside .

5. Per contra, the contention of the Learned Additional

Public Prosecutor was that the date of birth of the victim has been

proved to be 28-05-2005, while the date of offence was some time

in the month of November, 2021. It is therefore apparent that she

was about fifteen years when the offence took place. PW-2 and PW-

3, both the sisters of the victim, have with their evidence fortified

the Prosecution case regarding the victim’s age. The fact of sexual

assault having been proved and as the law mandates that consent of

a minor is of no consent, the impugned Judgment warrants no

interference.

6. We have heard the parties at length , given due

consideration to the evidence, all documentary evidence on record

and also perused the impugned Judgment and Order on Sentence.

7. The Trial Court considered the following points for

determination — Whether in November 2021, the accused

committed penetrative sexual assault on the victim in a hotel and

thereby impregnated her? If so, whether she is a minor within the

meaning of Section 2(d) of the POCSO Act.

(i) The Court observed that, the Investigating Officer (I.O.)

PW-7, did not seize the victim’s birth certificate. Nevertheless, the

Crl.A. No.21 of 2024 5

Arjun Kumar Prasad vs. State of Sikkim

victim’s date of birth being 28-05-2005 was corroborated by her

school record Exbt P-7/PW-5. The Court also observed that though

there is some confusion about the victim’s father’s first name in the

school record, her mother’s name is correct. The evidence of the

victim considered along with that of PW-2 and PW-3 establishes that

she was born on 28-05-2005. Hence, she was found to be about

sixteen years old at the time of the incident.

(ii) The Court was also of the view that the medical evidence

of PW-4 confirms that, the victim had miscarried and only the

placenta was present at the time of her medical examination. The

Court agreed that, the forensic examination report Exbt P-21/PW-7,

did not support the Prosecution case, but opined that such evidence

did not tantamount to the innocence of the Appellant. The Court

found that genetic profiling was not possible as the exhibit

forwarded to the laboratory on the assumption that it was the

placenta, was in fact only, a ‘biological’ sample of the victim. The

Appellant however cannot take advantage of the negligence of the

hospital authorities and the investigating agency on this aspect ,

when it is clear from the evidence discussed that the Appellant had

sexual intercourse with the victim resulting in her pregnancy. The

Court concluded that the Appellant had committed penetrative

sexual assault on the victim and impregnated her.

8. The question that requires determination by this Court

is, whether on the foundation of the evidence furnished by the

Prosecution, the Trial Court was correct in arriving at the aforestated

conclusions.

9. Dealing first with the age of the victim , she was

examined before the Court in the month of May, 2023 and stated

Crl.A. No.21 of 2024 6

Arjun Kumar Prasad vs. State of Sikkim

that her date of birth is 28-05-2005. No documentary evidence was

furnished to fortify this submission made by her. PW-2 who is the

victim’s sister stated that the victim was born on 28-05-2005. This

witness also did not exhibit the birth certificate of the victim,

although she asserted in her cross-examination that, she was aware

of her sister’s date of birth. PW-3, the other sister of the victim,

stated that, the victim was born on 28-05-2005 and at the relevant

time she was studying in Class VIII. No document was furnished to

substantiate this assertion. The I.O. did not seize the birth

certificate of the victim. No parent of the victim was examined to

lend credence to the Prosecution version that her date of birth was

28-05-2005. It is now no more res integra that the best proof of

age of a child is her parent’s evidence buttressed by unimpeachable

documentary evidence.

(i) In Vishnu alias Undrya vs. State of Maharashtra

2

the

Supreme Court observed as follows;

“22. In the case of determination of the date of

birth of the child, the best evidence is of the father and

the mother. In the present case, the father and the

mother, PW 1 and PW 13 categorically stated that PW 4

the prosecutrix was born on 29 -11-1964, which is

supported by unimpeachable documents, as referred to

above in all material particulars. These are the

statements of facts. If the statements of facts are

pitted against the so-called expert opinion of the doctor

with regard to the determination of age based on

ossification test scientifically conducted, the evidence

of facts of the former will prevail over the expert

opinion based on the basis of ossification test. Even as

per the doctor's opinion in the ossification test for

determination of age, the age varies. In the present

case, therefore, the ossification test cannot form the

basis for determination of the age of the prosecutrix on

the face of witness of facts tendered by PW 1 and PW

13, supported by unimpeachable documents. Normally,

the age recorded in the school certificate is considered

to be the correct determination of age, provided the

parents furnish the correct age of the ward at the time

of admission and it is authenticated. ………………………… ”

2

(2006) 1 SCC 283

Crl.A. No.21 of 2024 7

Arjun Kumar Prasad vs. State of Sikkim

(ii) In Madan Mohan Singh and Others vs. Rajni Kant and

Another

3

the Supreme Court held as follows;

“20. So far as the entries made in the official

record by an official or person authorised in

performance of official duties are concerned, they may

be admissible under Section 35 of the Evidence Act but

the court has a right to examine their probative value.

The authenticity of the entries would depend on whose

information such entries stood recorded and what was

his source of information. The entries in school

register/school leaving certificate require to be proved

in accordance with law and the standard of proof

required in such cases remained the same as in any

other civil or criminal cases.

21. For determining the age of a person, the

best evidence is of his/her parents, if it is supported by

unimpeachable documents. In case the date of birth

depicted in the school register/certificate stands belied

by the unimpeachable evidence of reliable persons and

contemporaneous documents like the date of birth

register of the Municipal Corporation, government

hospital/nursing home, etc., the entry in the school

egister is to be discarded. ………………………

22. If a person wants to rely on a particular date

of birth and wants to press a document in service, he

has to prove its authenticity in terms of Section 32(5)

or Sections 50, 51, 59, 60 and 61, etc. of the Evidence

Act by examining the person having special means of

knowledge, authenticity of date, time, etc. mentioned

therein. ……………………… ”

(iii) According to PW-5 the School Principal, the victim’s date

of birth was recorded as 28 -05-2005 in the school admission

register Exbt P-7/PW-5 furnished by her. The Prosecution failed to

explain as to why the name of the father recorded in the register

Exbt P-7/PW-5 differed from his name in the FIR Exbt P-2/PW-2.

During cross-examination the Principal admitted that the School

Admission Register records the name of the father of the victim as

Bxx Bxxxxxx Bxxxxx and the name of the mother as xxxxxx xxxxxx.

The Principal could not say on what basis the entries were made as

she was not posted there at the relevant time. The I.O. admitted the

aforestated anomaly which however remained unresolved by the

3

(2010) 9 SCC 209

Crl.A. No.21 of 2024 8

Arjun Kumar Prasad vs. State of Sikkim

Prosecution. PW-3 also deposed that the victim was her younger

sister born on 28-05-2005. At the same time of the deposition of

PW-3 on 02-08-2023, she was twenty-two years of age which would

make her just about four years of age at the time when the victim

was born. PW-3 also did not specify the name of her parents in the

deposition, although the name of her father is recorded as S xxxx

Bxxxxx, which is neither the name given in the FIR nor in the School

Admission Register, Exbt P-7/PW-5. As such, both PW-2 and PW-3

would not have any personal knowledge about the date of birth of

the victim. The victim’s deposition also does not provide any details

about any of the parents of the victim. The Prosecution has failed to

produce relevant evidence on this aspect. In the absence of

documentary evidence and PW-2 and PW-3 being the siblings of the

victim, it stands to reason that they would not be the best persons

to have knowledge of the victim’s exact date of birth or age. It

would do well to recall here that, the Prosecution is required to

prove its case beyond all reasonable doubt. When the a ge of the

victim has not been established by documentary evidence, the mere

verbal evidence does not inspire the confidence of this Court.

10. That having been said, as pointed out by Learned

Counsel for the Appellant, the allegation that the Appellant was

responsible for impregnating the victim does not add up from the

evidence furnished. PW-4, who examined the victim, unequivocally

stated, as follows;

“……………………………… on 31.01.2022, at around

5.50 pm, the victim of this case was brought to the

Emergency ward with a complaint of abdominal pain

since few hours with active vagi nal bleeding.

Accordingly, I examined her at around 6.45 pm in the

presence of nurse on duty and Dr. Sonam Yangden

Sherpa. On my examination per abdomen 22 weeks

Crl.A. No.21 of 2024 9

Arjun Kumar Prasad vs. State of Sikkim

uterus PV Grade II p erineal tear, boggymass felt

introitus. Manual removal of boggymass felt confirmed

as a retained placenta. Discharge was foul and no fetus

was present. Placenta was weight around 350 gram

infected with puss cover and the patient was diagnosed

as a case of G1P0+0 with retained placenta and

perineal tear Grade II (midline) with severe anaemia

with sepsis with UTP positive. She was managed

accordingly in hospital. I had given order to store

placenta in normal saline for further needful. After

managing conservatively she was discharge on

08.02.2022. ……………”

His cross-examination led to a voluntary statement that the length

of the placenta was not taken, but in such cases the placenta is

weighed, which had accordingly been done. The evidence of PW-7

reveals that Exbt P-9/PW-9 is the blood sample authentication form

of the Appellant and PW-20/PW-7 is the blood sample authentication

form of the victim. No conclusive evidence regarding the blood

samples was given by the IO nor was any expert examined in this

context to bolster the Prosecution case. The placenta removed from

the victim was also evidently not sent for expert opinion to the

CFSL.

11. We find weight in the argument of Learned Counsel for

the Appellant that if the victim alleges that the sexual intercourse

took place in the month of November and she suffered bleeding due

to termination of pregnancy, in the month of December/January, the

size of the placenta would have indicated around eight weeks’

pregnancy. In contradiction thereto, PW-4 after medically examining

the victim has categorically opined that the size of the placenta

indicated pregnancy of twenty-two weeks. In the face of such

categorical medical evidence, we cannot conclude that the Appellant

caused the pregnancy.

12. In conclusion, on both counts, viz., the age of the victim

and the Appellant being the perpetrator of the offence, we have to

Crl.A. No.21 of 2024 10

Arjun Kumar Prasad vs. State of Sikkim

disagree with the findings of the Trial Court. We do not find the

evidence of the victim to be of a “sterling quality” and the medical

evidence furnished lends credence to this opinion.

13. Accordingly, the conviction and sentence imposed on the

Appellant, vide the impugned Judgment and Order on Sentence of

the Trial Court are set aside.

14. The Appeal is consequently allowed.

15. The Appellant is acquitted of the offence under Section

5(j)(ii) punishable under Section 6 of the POCSO Act and Section

376(1) of the IPC.

16. He be set at liberty forthwith, if not required to be

detained in any other case.

17. Fine, if any, deposited by the Appellant in terms of the

impugned Order on Sentence, be reimbursed to him.

18. No order as to costs.

19. Copy of this Judgment be forwarded to the Trial Court

for information along with its records.

20. A copy of this Judgment be made over to the

Appellant/convict through the Jail Superintendent, Central Prison,

Rongyek and to the Jail Authority for information.

(Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )

Judge Judge

19-06-2025 19-06-2025

Approved for reporting : Yes

ds