THE HIGH COURT OF SIKKIM : GANGTOK

(Criminal Appellate Jurisdiction)

Dated : 10

th

September, 2025

-----------------------------------------------------------------------------------

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

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

-----------------------------------------------------------------------------------

Crl. A. No.22 of 2024

Appellant : Sanjay Darjee

versus

Respondent : State of Sikkim

Application under Section 374(2) of the

Code of Criminal Procedure, 1973

---------------------------------------------------------------------------

Appearance

Mr. Umesh Ranpal, Advocate (Legal Aid Counsel) for the Appellant.

Mr. Thinlay Dorjee Bhutia, Public Prosecutor, Mr. Yadev Sharma ,

Additional Public Prosecutor and Mr. Sujan Sunwar, Assistant Public

Prosecutor for the Respondent.

---------------------------------------------------------------------------

JUDGMENT

Meenakshi Madan Rai, J.

1. The Appellant was convicted of the offences under

Section 3(a), punishable under Section 4 and Section 5, punishable

under Section 6, of the Protection of Children from Sexual Offences

Act, 2012 (hereinafter, the “POCSO Act”), vide the impugned

Judgment dated 24-04-2024, in ST (POCSO) Case No.12 of 2022,

in the Court of the Special Judge (POCSO Act, 2012), Gangtok,

Sikkim. On 29-04-2024, he was sentenced to undergo rigorous

imprisonment for a period of twenty years and fined ₹ 2,000/-

(Rupees two thousand) only, for the offence under Section 5(m),

punishable under Section 6 of the POCSO Act with a default

stipulation. While sentencing the Appellant under Section 5(m)/6

of the POCSO Act, the Court reasoned that, as the victim was

below twelve years of age , the convict was sentenced under

Section 6 of the POCSO Act , for aggravated penetrative sexual

assault. He was therefore not required to be sentenced for the

Crl. A. No.22 of 2024

Sanjay Darjee vs. State of Sikkim 2

same offence under Section 4 of the POCSO Ac t as the penalty

prescribed under Section 6 of the POCSO was greater in degree.

(i) Aggrieved by the Judgment and Sentence, the

Appellant is before this Court, impugning both.

2. The Prosecution narrative is that, on 02-03-2022 the

FIR, Exbt P-11/PW-9 was received from PW-9, informing that, her

step-sister PW-1, aged about twelve years was missing from their

residence around 05.00 p.m., on 24-02-2022. She was last seen

with the Appellant, a driver, who was not responding to calls on his

cell phone. The FIR was duly registered that same day under

Section 363 of the Indian Penal Code, 1860 (hereinafter, the “IPC”)

against the Appellant. Investigation was endorsed to PW-11 the

Investigating Officer (IO), whereupon it was revealed that the

Appellant was known to the victim‟s family since the past two

years. During her father‟s treatment at Siliguri, and after his

demise the Appellant helped them with their household rations. On

24-02-2022, the Appellant went to the victim‟s house and asked

her to accompany him to Gangtok. She left without her mother‟s

consent and spent the night with him at a hotel in Gangtok. The

victim claimed that night she was not sexually assaulted by the

Appellant. On 25-02-2022, they went to Pelling, West Sikkim, with

tourists in the Appellant‟s vehicle and booked into one hotel room.

On 26-02-2022, on account of mechanical defects in the

Appellant‟s vehicle they could not return home, and continued to

stay in the same hotel till 27-02-2022, where the Appellant

allegedly sexually assaulted PW-1 several times. On 28-02-2022,

after the vehicle was repaired, they returned together to Gangtok

and spent another night together. On 01-03-2022, the Appellant

Crl. A. No.22 of 2024

Sanjay Darjee vs. State of Sikkim 3

took some tourists to North Sikkim and PW-1 accompanied them

where they again shared a hotel room. On 03-03-2022, they were

intercepted by the jurisdictional police personnel and handed over

to PW-11. He submitted Chargesheet, against the Appellant under

Section 363 of the IPC, read with Section 4 of the POCSO Act.

(i) The Trial Court framed Charge against the Appellant

under Section 3(a) punishable under Section 4, Section 5

punishable under Section 6 of the POCSO Act. The Appellant

having entered a plea of “not guilty”, the Prosecution examined

twelve witnesses in support of its case, on closure of which, the

Appellant was examined under Section 313 of the Code of Criminal

Procedure, 1973 (hereinafter, the “Cr.P.C.”). He claimed innocence

and asserted that the allegations levelled against him were false

and fabricated. The Trial Court on appreciation of the entirety of

the evidence, pronounced the impugned J udgment and Order on

Sentence.

3. Learned Counsel for the Appellant while assailing both,

submitted that the date of birth of the victim was not proved as the

Prosecution failed to prove seizure of the birth certificate and also

failed to examine the author of the document as he was never

arrayed as a witness. It was canvassed that regardless of the

evidence of PWs 1, 2, 7 and 8 about the age of minority of the

victim, the fact that PW-1 herself has stated that she had told PW-

2 her mother that she had married the Appellant, indicates that

she was not fourteen years old but much older. The Trial Court

based its evidence on the sole testimony of the victim, but there

were no witnesses to prove that the Appellant and the victim spent

several nights together in various hotels. The evidence does not

Crl. A. No.22 of 2024

Sanjay Darjee vs. State of Sikkim 4

establish sexual assault by the Appellant on the victim nor does the

medical report of the victim substantiate the Prosecution case.

There is no proof whatsoever of penetrative sexual assault and the

chain of circumstances do not favour the Prosecution case. The

undergarment of the victim as well as her vaginal wash and swab

were forwarded to the RFSL Saramsa, but the results were

negative for presence of semen, thereby ruling out the allegation of

penetrative sexual assault. The medical report of the victim, Exbt

P-14/PW-11, found no injuries or abnormalities either on her

person or in her genital. The cross-examination of the doctor

revealed that during the victim‟s medical examination, he did not

find a history of sexual assault on her. In such circumstances, the

Judgment of conviction and consequent Order on Sentence of the

Trial Court deserves to be set aside and the Appellant acquitted of

all charges.

4. Per contra, Learned Public Prosecutor argued that the

victim as per the birth certificate has been shown to be twelve

years old. PW-7 the Registrar of Births and Deaths authenticated

the documents and found the entries therein to be correct. PW-8

the Headmistress of the school attended by the victim lend s

support to the evidence of PW-7, who on verification of the school

admission register, which was furnished in Court, confirmed that,

the victim‟s date of birth was recorded therein as 19-03-2010. In

the face of such categorical evidence, the victim being a minor

cannot be denied. Minor discrepancies such as the victim stating

that she was fourteen years old and her mother stating that she

was thirteen years old does not demolish the Prosecution case.

The victim has clearly deposed that the Appellant touched her

Crl. A. No.22 of 2024

Sanjay Darjee vs. State of Sikkim 5

inappropriately which she described as „bad touch‟ at the hotel in

Pelling and that he had sex with her on the second day. The

medical evidence proves that she was sexually assaulted as the

examining doctor found her to be sexually active. In such

circumstances, the Judgment and Order on Sentence warrants no

disturbance.

5. We have given due consideration to the rival

contentions advanced before us and examined all the evidence,

documents on record and perused the impugned Judgment and

Order on Sentence.

6. The Trial Court framed the fol lowing points for

determination; Whether the accused committed penetrative sexual

assault on the victim in a hotel room at Pelling between 25

th

to 27

th

February, 2022 and at Lachen between 1

st

to 2

nd

March, 2022? If

so, whether she is a minor within the meaning of Section 2(d) of

the POCSO Act, 2012?

(i) The Trial Court in Paragraph 14 of the impugned

Judgment observed that, the accused was known to the victim for

a long time as he is related to her through her father. In March,

2022, she had gone with the accused to Pelling along with tourists.

During their two days stay in a hotel at Pelling, the accused did

„bad touch‟ to her i.e., touched her breasts and stomach and also

had sex with her. From Pelling they came to Gangtok and then left

for Lachung (sic. Lachen), the following day. There the accused

again repeated the „bad touch‟, on her. The police intercepted

them and took them to the police station. The Court further

observed that the victim‟s testimony that the accused had sexual

intercourse with her at Pelling and Lachen cannot be disbelieved

Crl. A. No.22 of 2024

Sanjay Darjee vs. State of Sikkim 6

simply because there was no injuries on the vaginal region. Oral

evidence of the victim, which is credible has to be given

precedence over the medical evidence. Her statement recorded

under Section 164 of the Cr.P.C. (Exbt P-1/PW-1) also supports her

oral evidence given before the Court. Although her cross -

examination indicated that she had gone with the accused to

various locations and had sexual intercourse with him of her own

free will, but in a case under the POCSO Act , the child‟s consent

becomes inconsequential. Hence, the question whether the

accused committed penetrative sexual assault on the victim in a

hotel room at Pelling between 25-02-2022 to 27-02-2022 and at

Lachen between 01-03-2022 and 02-03-2022 was answered in the

affirmative. The Court then went on to discuss the age of the

victim and on consideration of the evidence of PW-1 the victim,

PW-2 the mother of the victim, PWs 3 and 4, witness to the seizure

of the victim‟s birth certificate Exbt P-2/PW2 from PW-9 (victim‟s

sister) where her date of birth is recorded as 19-03-2010, PW-7,

the Registrar of Births and Deaths who found the victim‟s birth

certificate to be genuine, after verification with the live birth

register, PW-8 who deposed that the victim‟s date of birth too was

recorded in the school admission register as 19-03-2010,

concluded that the victim was barely twelve years old at the time

of the incident. The impugned Judgment was accordingly

pronounced, followed by the impugned Order on Sentence.

7. This Court is now to determine whether the findings of

the Trial Court with regard to the age of the vi ctim and the

allegations of penetrative sexual assault and sexual assault against

the Appellant stand fortified by the evidence on record.

Crl. A. No.22 of 2024

Sanjay Darjee vs. State of Sikkim 7

(i) While examining the evidence of the victim , we find

that she deposed inter alia as follows;

“.......................................................................

I do not remember the exact date but in March

this year (2022), I had gone with Sanjay dada to

Pelling. We stayed in a hotel for about two days.

Sanjay dada is a driver and had taken some tourists,

so I also went along with them. Witness says, “mo

ghumnu gayo” (I went for a visit). While at Pelling

Sanjay dada and I stayed in the same room in the

hotel. During our stay he did “bad touch” to me.

Question by the Court:-

Q. Can you tell us what you mean by “bad touch”?

Ans: He touched me “here” ( victim points to her

breasts and stomach).

Q. Did he do anything else to you?

Ans: He did naramro cheej to me.

Q. Can you tell us what you mean by “naramro cheej

Ans: He had sex with me on the second day. I

screamed but no one came to my rescue.

However, I remained with him as I had no one

else to go with. From Pelling, we came to Gangtok

and halted for a night in a hotel at M.G. Marg. The

next day we left for Lachung. I did not go home

when I came to Gangtok. At Lachung also we stayed

in a hotel and shared a room. There also he did “bad

touch”. We did not have sex. While at Lachung the

police came and caught us and took us to the thana.

.......................................................................”

Her cross examination revealed inter alia as follows;

“.......................................................................

It is not a fact that I was not aware that

accused was touching me in a bad way. It is not a fact

that on the second day in Pelling, the accused did not

have sex with me. It is true I did not resist when the

accused had sex with me. It is true I consented to

having sex with the accused. It is true that I did not

complain to anyone in the hotel about the accused

either in Pelling or in Lachung. It is not a fact that

accused did not do “bad touch” to me in Pelling and

Lachung.

.......................................................................”

(ii) Before proceeding further, at this juncture, it would be

relevant for us to point out that the Trial Court has erroneously

placed reliance on the Section 164 Cr.P.C. statement of the victim

while opining at Paragraph 15 of the impugned Judgment as

follows;

“15. The victim‟s evidence makes it certain that the

accused had taken her to Pelling and Lachen (referred

Crl. A. No.22 of 2024

Sanjay Darjee vs. State of Sikkim 8

as Lachung by the victim) during the said period.

Therefore, the contention of defence that accused

person‟s name does not match with the name in the

F.I.R (Sanjay Rai) is inconsequential. The identity of

the accused, being the person who had taken the

victim from her house stands proved. The victim‟s

testimony that the accused had sexual intercourse

with her at Pelling and Lachen cannot be disbelieved

simply because there was no injury on her vaginal

region (as per the medical report marked Exhibit P-

14/PW11). Oral evidence of the victim, which is

credible has to be given precedence over the medical

evidence. Her statement recorded prior in time under

Section 164 of the Code of Criminal Procedure, 1973

(Exhibit-P1/PW-1) also supports her oral evidence

given before this Court.”

(iii) This Court in Ganesh Dhakal vs. State of Sikkim

1

has

detailed the parameters for consideration of a statement under

Section 164 of the Cr.P.C. as follows;

“7. .......................................................................

ix. That, the contents of a statement under

Section 164 Cr.P.C. is not substantive evidence

is now no more res integra and should the

Court contemplate considering its contents,

then the author of the contents oug ht to be

confronted with it and the provisions of Section

145 of the Evidence Act, 1872, complied with.

The object of statement of witnesses, recorded

under Section 164 Cr.P.C. is concerned the

object is twofold. The first is to deter the

witness from altering his stand by denying the

contents of his previously recorded statement.

Secondly, it is to tide over immunity from

Prosecution by the witness under Section 164

Cr.P.C. The proposition that if a statement of a

witness is recorded under Section 164 Cr.P.C.,

his evidence in Court should be discarded is not

at all warranted. Section 157 of the Evidence

Act makes it clear that a statement recorded

under Section 164 Cr.P.C. cannot be relied

upon and is only for the purpose of

corroborating statements m ade by the

witnesses in the committal Court or even to

contradict it, for the reason that the Defence

has had no opportunity of cross-examining the

witnesses whose statements were recorded

under Section 164 Cr.P.C. [See R. Shaji vs. State

of Kerala (2013) 14 SCC 266)]. It is also settled law

that the formalities prescribed by Section 145

of the Evidence Act are to be complied with,

even for statements recorded under Section

164 Cr.P.C. Every circumstance intended to

be used as contradiction or corroboration has

to be put to the witness point by point and the

whole statement read out to him. The

admission or denial thereof has to be extracted

1

2025 SCC OnLine Sikk 25

Crl. A. No.22 of 2024

Sanjay Darjee vs. State of Sikkim 9

from the witness, before the Court can consider

such contradiction or corroboration. In the

instant matter, it is seen that all that the

witness has stated with regard to Section 164

Cr.P.C. statement, in her testimony before the

Court is that, during the course of investigation

she was taken to Court and her statement

recorded, which she identified as Exbt-4, on

which she had affixed her right thumb

impression. In her cross -examination she

denied having improvised her statement at the

time when her Section 164 Cr.P.C. statement

was recorded. Clearly she was not confronted

point by point, fact by fact or paragraph by

paragraph on each circumstance that was

intended to be contradicted or corroborated,

and hence the arguments advanced by Learned

Counsel for the Appellant on this aspect is

untenable.”

(iv) More recently in State of Sikkim vs. Rup Narayan Rai

(Chamling) and Others

2

it has been held as follows;

“7. With regard to the evidence of PW-1, the

victim, her statement under Section 164 of the Cr.P.C.

Ext-1 was recorded on 19 -08-2020. Under cross -

examination she asserted that Ext-1 in two pages was

her statement recorded by the Judge. Before

proceeding further on this facet, it may be clarified

that the statement made under Section 164 of the

Cr.P.C. may be used to corroborate or contradict a

statement made in the Court in the manner provided

by Sections 145 and 157 of the Evidence Act but

under no circumstance can it be treated as

substantive evidence.

(i) Section 145 of Evidence Act reads as

follows;

“145.Cross-examination as to previous

statements in writing.─ A witness may be cross-

examined as to previous statements made by him in

writing or reduced into writing, and relevant to

matters in question, without such writing being

shown to him, or being proved; but, if it is intended

to contradict him by the writing, his attention must,

before the writing can be proved, be called to those

parts of it which are to be used for the purpose of

contradicting him.”

Section 145 of the Evidence Act gives the

accused the right to cross-examine the witness, on

previous statements made by him and reduced into

writing, when the previous statements are relevant to

the matters in issue. The object of the provision is to

afford reasonable opportunity to the witness to

explain his previous statement, after his attention has

been drawn to the specific portions of his previous

statement, which are sought to be contradicted or

corroborated, in a fair and reasonable manner and not

for the purpose of mere form. When the witness is

questioned about every material passage in his

previous statement, point by point, there is

2

Decided by the Division Bench of this High Court, in Crl. A. No.28 of 2024, on 13-08-2025.

Crl. A. No.22 of 2024

Sanjay Darjee vs. State of Sikkim 10

substantial compliance with the requirement of

Section 145 of Evidence Act. As far back as in 1952 in

Bhagwan Singh vs. The State of Punjab

3

the Supreme

Court while elaborating on the second limb of Section

145 of the Evidence Act extracted hereinabove, held

that, if it is intended to contradict the witness, his

attention must be called to those parts which are to

be used for the purpose of contradicting him. It was

further held that, if the witness denies having made

any statement which is inconsistent with his

testimony in Court, the latter testimony would not be

vitiated, until the cross-examiner proceeds to comply

with the procedure prescribed, in the second limb of

Section 145 of the Evidence Act. The credit of a

witness can be impeached by proof of any statement

which is inconsistent with any part of his evidence in

Court. At the same time, reading out the entire

Section 164 Cr.P.C. statement to the witness and

asking what he had to say with regard to the entire

statement is not in compliance with the provision of

Section 145 of the Evidence Act.

(ii) In V. K. Mishra and Another vs. State of

Uttarakhand and Another

4

, a three Judge Bench of

the Supreme Court observed as follows;

“19. Under Section 145 of the Evidence Act

when it is intended to contradict the witness by his

previous statement reduced into writing, the

attention of such witness must be called to those

parts of it which are to be used for the purpose of

contradicting him, before the writing can be used.

While recording the deposition of a witness, it

becomes the duty of the trial court to ensure that

the part of the police statement with which it is

intended to contradict the witness is brought to the

notice of the witness in his cross-examination. The

attention of witness is drawn to that part and this

must reflect in his cross-examination by reproducing

it. If the witness admits the part intended to

contradict him, it stands proved and there is no

need to further proof of contradiction and it will be

read while appreciating the evidence. If he denies

having made that part of the statement, his

attention must be drawn to that statement and

must be mentioned in the deposition. By this

process the contradiction is merely brought on

record, but it is yet to be proved. Thereafter when

investigating officer is examined in the court, his

attention should be drawn to the passage marked

for the purpose of contradiction, it will then be

proved in the deposition of the investigating officer

who again by referring to the police statement will

depose about the witness having made that

statement. The process again involves referring to

the police statement and culling out that part with

which the maker of the statement was intended to

be contradicted. If the witness was not confronted

with that part of the statement wit h which the

defence wanted to contradict him, then the court

cannot suo motu make use of statements to police

not proved in compliance with Section 145 of the

Evidence Act that is, by drawing attention to the

parts intended for contradiction.”

3

AIR 1952 SC 214

4

(2015) 9 SCC 588

Crl. A. No.22 of 2024

Sanjay Darjee vs. State of Sikkim 11

(iii) Section 157 of the Evidence Act reads as

follows;

“157. Former statements of witness may

be proved to corroborate later testimony as to

same fact.─In order to corroborate the testimony

of a witness, any former statement made by such

witness relating to the same fact, at or about the

time when the fact took place, or before any

authority legally competent to investigate the fact,

may be proved.”

This Section is based on the principle that if

there is consistency between the previous statement

and present stateme nt of a witness it may be

considered a ground for believing him. The two

things which are essential for Section 157 of the

Evidence Act to apply are; The witness should have

given testimony with respect to some fact. The

second is that he should have mad e a statement

earlier with respect to the same fact at or about the

time, when the fact took place or before any authority

legally competent to investigate the fact. Section

157 of the Evidence Act makes it clear that, a

statement recorded under Section 164 Cr.P.C. cannot

be relied upon and is only for the purpose of

corroborating or contradicting it, the reason being

that the Defence has had no opportunity of cross -

examining the witnesses whose statements were

recorded under Section 164 Cr.P.C. [See R. Shaji vs.

State of Kerala (2013) 14 SCC 266)].

(iv) On careful perusal of the evidence of the

victim it is seen that the second limb of Section 145

of the Evidence Act has not been complied with either

by Prosecution to indicate corroborative evidence as

urged in the arguments of Learned Additional Public

Prosecutor or to prove contradictions as per the

contentions of Learned Senior Counsel for the

Respondents. The Trial Court was therefore in error

in considering Ext-1, while discussing the evidence of

PW-1. Hence, there is no requirement to consider

this facet of the arguments advanced by both Learned

Court. It is reiterated here that, evidence under

Section 164 of the Cr.P.C is not substantive evidence.

.......................................................................”

Hence in view of the fact that the victim has not been

questioned in terms of the law laid down as discussed at length

(supra), her statement under Section 164 of the Cr.P.C. is rendered

totally irrelevant for the present purposes. Apart from which, it

needs no reiteration that a statement under Section 164 of the

Cr.P.C. is not substantive evidence and is utilised only for the

purposes of corroboration and contradiction.

(v) So far as the age of the victim is concerned, we find

that the deposition of PW-1 and PW-2 are fortified by contents of

Crl. A. No.22 of 2024

Sanjay Darjee vs. State of Sikkim 12

the birth certificate which has been proved by PW-7 and PW-8 as

detailed in the impugned Judgment , which has been discussed

hereinabove. We see no reason to disagree with the finding of the

Trial Court on the age of the victim, as her date of birth is 19-03-

2010 and the offence was reported on 02 -03-2022, making her a

few days short of twelve years of age.

(vi) Having thus meticulously perused the statement of the

victim, it is evident that the Appellant touched her inappropriately

on her breasts and stomach , which she has described as „bad

touch‟. Her categorical statement is that on the second day the

Appellant had sex with her. Her cross-examination reveals that she

did not resist when the Appellant had sex with her and that it was

consensual. The evidence of PW -12, the doctor, which the Trial

Court has failed to consider, establishes that, although upon genital

examination no abrasion or injuries were found in and around the

vagina, however he found the patient i.e., the victim to be sexually

active. In such circumstances, it is established that penetrative

sexual assault on the victim was perpetrated by the Appellant. As

correctly pointed out by the Trial Court, even if there was

consensual sex between the victim and the Appellant, it needs no

reiteration that consent of a minor is of no relevance and the

Appellant being an adult man, aged around thirty-two years would

still be considered the perpetrator of the offence of penetrative

sexual assault.

8. In light of the foregoing discussions, the impugned

Judgment and the impugned Order on Sentence of the Trial Court

are accordingly upheld and the question framed for consideration

by this Court (supra) is consequently given a quietus.

Crl. A. No.22 of 2024

Sanjay Darjee vs. State of Sikkim 13

9. The Appeal is dismissed and disposed of.

10. Copy of this Judgment be forwarded forthwith to the

Trial Court along with its records.

11. A copy of this Judgment also be made over to the

Appellant through the Jail Superintendent, Central Prison, Rongyek

and also to the Jail Authority, for information.

( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )

Judge Judge

10-09-2025 10-09-2025

Approved for reporting : Yes

sdl