THE HIGH COURT OF SIKKIM : GANGTOK

(Criminal Appeal Jurisdiction)

Dated : 10

th

September, 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.08 of 2023

Appellant : Tashi Pintso Lepcha

versus

Respondent : State of Sikkim

Application under Section 374(2) of the

Code of Criminal Procedure, 1973

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Appearance

Mr. Thupden Youngda, Advocate (Le gal Aid Counsel) for the

Appellant.

Mr. Shakil Raj Karki, Additional Public Prosecutor for the

Respondent.

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JUDGMENT

Meenakshi Madan Rai, J.

1. In this Appeal, which assails the Judgment dated 29-

11-2018, of the Court of the Special Judge (POCSO), West Sikkim,

at Gyalshing, in Sessions Trial (POSCO) Case No.08 of 2018 ( State

of Sikkim vs. Tashi Pintso Lepcha) and the Order on Sentence of the

same date, three specific points of challenge have been raised by

Learned Counsel for the Appellant i.e., (i) The Prosecution has

failed to prove the age of minority of the victim; (ii) There is no

proof of penetrative sexual assault; and (iii) There are

inconsistencies in the previous statement of the victim with her

evidence as deposed in Court.

2. Before examining the merits of the Appeal, the

Prosecution case is narrated briefly. On 09-03-2018, PW-2 the

victim‘s father lodged Exbt-3 the FIR, alleging therein that his

thirteen year old daughter PW-1, had been sexually assaulted by

the Appellant, near her school compound, between 01.05 p.m. to

Crl. A. No.08 of 2023

Tashi Pintso Lepcha vs. State of Sikkim 2

01.45 p.m. The matter came to be registered before the

jurisdictional police station as FIR GPS Case No.11/2018, dated 09-

03-2018, under Sections 341, 376 of the Indian Penal Code, 1860

(hereinafter, the ―IPC‖) read with Section 4 of the Protection of

Children from Sexual Offences Act, 2012 (hereinafter, the ―POCSO

Act‖). Investigation was endorsed to PW -17, the Investigating

Officer (IO), on completion of which, Charge-sheet was submitted

against the Appellant under Sections 376/341/506 of the IPC, read

with Section 4 of the POCSO Act.

(i) The Trial Court framed charged against the Appellant

under Sections 376(2)(f), 376(2)(i) and 354 of the IPC along with

Section 5(n) punishable under Section 6 of the POCSO Act. The

Appellant entered a plea of ―not guilty‖ and claimed trial. On such

plea the Prosecution took to furnishing and examining seventeen

witnesses before the Trial Court. The Trial Court did not frame any

specific question for determination but in the impugned Judgment

discussed amongst other issues, the non-production of the victim‘s

birth certificate by the Prosecution. After taking into consideration

the evidence of PWs 1, 2, 10 and 17 and also relying on the

Judgment of the Supreme Court in Pradeep Kumar vs. State of U.P.

1

,

the Court concluded that the victim was a minor, aged thirteen

years, at the time of the lodging of Exbt-3. The Trial Court then

embarked on assessing the evidence of the victim and whether she

was able to establish that the offence was committed against her.

In such exercise, the statement of the victim PW-1, her father PW-

2, PWs 3, 4, 5, 6, 8, 9, 10, 13, 14 and 17 were considered and on

appreciating the evidence, it was concluded that the incident of

aggravated penetrative sexual assault was committed by the

1

1995 Supp (4) SCC 419

Crl. A. No.08 of 2023

Tashi Pintso Lepcha vs. State of Sikkim 3

Appellant upon the victim and duly proved. It was also proved by

the evidence of the victim and her father PW-2 that, the Appellant

is a relative of the victim being the victim‘s elder aunt‘s husband.

Thus, on analysing the entire Prosecution evidence, the Court came

to a finding that the Prosecution had established the offence under

Section 5(n) punishable under Section 6 of the POCSO Act against

the Appellant. He was consequently sentenced to undergo rigorous

imprisonment for a period of ten years and to pay a fine of ₹

10,000/- (Rupees ten thousand) only, under Section 5(n)

punishable under Section 6 of the POCSO Act , with a default

stipulation. It was also observed that as the ingredients of

Sections 376(2)(f)/376(2)(i) of the IPC are ingrained in Section

5(n) of the POCSO Act, a separate discussion and decision under

the said sections were not required neither was a separate

conviction required, the offences being the same as made out

under Section 5(n) of the POCSO Act. In this context, the Court

bolstered its reasoning by invoking Section 42 of the POCSO Act,

which provides for alternative punishment.

3. Learned Counsel for the Appellant, impugning the said

findings submitted that, the Prosecution failed to furnish any

documentary evidence to establish the victim‘s age. The only

document furnished by the Prosecution was her Immunization

Card, Exbt-23, said to be signed by a health worker, who however

was not produced as a Prosecution witness. Thus, in such

circumstances, this document cannot be relied on for proof of age.

Apart from this document, the Prosecution relied on Exbt-10, a

certificate issued by PW-10, the headmaster of the school where

the victim was studying but the school admission register was not

Crl. A. No.08 of 2023

Tashi Pintso Lepcha vs. State of Sikkim 4

furnished in its original, nor was PW-10 able to give reasons for its

non-production. Under cross-examination he admitted that Exbt-

10 was issued by him but it was not on the basis of the victim‘s

date of birth. PW-17 the IO, also did not seize the school

admission register, therefore the evidence of PW-10 to the effect

that the victim‘s date of birth was recorded as 22-02-2005 in the

school admission register is of no assistance to the Prosecu tion

case in the absence of the school admission register. No birth

certificate of the victim was furnished nor was a ny document

furnished from the Registrar of Births and Deaths. The victim‘s age

therefore went unproved. The Appellant in his Section 313 of the

Code of Criminal Procedure, 1973 (hereinafter, the ―Cr.P.C.‖) ,

asserted that the victim was eighteen years of age. In such

circumstances, it was urged that, it is now settled law that when

contradictory evidence emerges, the evidence in favour of the

accused ought to be taken into consideration by the Court.

(i) In the second leg of his argument s, relying on the

medical report of the victim it was contended that PW -14 the

Doctor, had conducted the medical examination of the victim. Her

evidence is specific that there were no visible fresh or old injuries

on the body of the victim and her hymen intact, ruling out

penetrative sexual assault.

(ii) Although the third ground raised by Learned Counsel

related to inconsistencies in the statement of the victim in Court

with her evidence under Section 164 of the Cr.P.C., this argument

was abandoned on the realisation by the Learned Counsel that the

victim had not been confronted with her Section 164 Cr.P.C.

statement when her evidence was being recorded in Court. In light

Crl. A. No.08 of 2023

Tashi Pintso Lepcha vs. State of Sikkim 5

of the above circumstances it was urged that, the Appellant would

only be liable for the offence, if at all, for sexual assault and not

penetrative sexual assault as alleged. Hence, the sections of

conviction and consequently the sentence imposed on the

Appellant be reduced.

4. Learned Additional Public Prosecutor in the first leg of

his arguments advanced the contention that the Appellant was the

victim‘s uncle, being the husband of her mother‘s elder sister. He

had specifically sent PW-3, an eight year old boy to call the victim

after which he took her to the forest and then raped her as can be

culled out from the evidence of the victim PW-1 and her friends

PWs 4, 6 and 8, who deposed that, the victim had told them that

she had been raped by the Appellant and he had given her ₹ 10/-

after that. PW-3 has specified that he had been sent by the

Appellant to call the victim to the canteen. PW-5 another friend of

the victim has also deposed that her friends had said that ‗there

was some secret thing‘, as they saw the victim and the Appellant

going towards the jungle. They also went towards the place where

the victim and the Appellant had gone. When they met the victim

they saw that her school uniform was dirty and they enquired from

her as to what had happened. She disclosed reluctantly, that, she

had been sexually assaulted by the Appellant. PWs 4, 5, 6 and 8

had deposed that they then informed PW -7, their teacher, about

the above facts. PW-7 corroborated the aforestated evidence. PW-

9, another teacher of the same school along with PW -7 deposed

that, the victim and the friends, the PWs (supra) had told her and

PW-7 of the penetrative sexual assault committed on the victim by

the Appellant. They accordingly went and informed PW-10. PW-10

Crl. A. No.08 of 2023

Tashi Pintso Lepcha vs. State of Sikkim 6

has corroborated the said fact and the narration of the sexual

assault by PWs 7 and 9 to him. The fact of penetrative sexual

assault has been proved by the foregoing evidence of the

witnesses, substantiated by the evidence of PW-14, the doctor who

examined the victim and pointed out the redness over the

―posterior commissure‖ which was bright red in colour and could

only be the result of penetrative sexual assault. The age of the

victim has been proved by PW-10 as Exbt-10 the certificate issued

by him established that the victim was born on 22 -02-2005 as

recorded in the school admission register . Exbt-23 the

Immunization Card of the victim, an official document, duly signed

by the health worker supported by Exbt -10. In such

circumstances, there is no reason to interfere with the findings and

conclusions of the Trial Court which has correctly convicted.

5. We have given due consideration to the rival

contentions advanced before us and examined all the evidence,

documents on record and perused the impu gned Judgment and

Order on Sentence.

6. The question that falls for determination by this Court

is; Whether the findings of the Trial Court is guided by the settled

principles of law and the conviction and sentence handed out

correctly.

7. Dealing first with the age of the victim, we are inclined

to agree with the submissions of Learned Counsel for the Appellant

that the victim being a minor has not been established by the

Prosecution. The Immunization Card Exbt-23 has been filed in the

original. It purports to be under the signature of a health worker

who however was not examined as a Prosecution witness. Exbt-

Crl. A. No.08 of 2023

Tashi Pintso Lepcha vs. State of Sikkim 7

23, which under normal circumstances, ought to have been with

the victim‘s parents and known to them was not exhibited by the

victim‘s father who was examined as PW -2. The document does

not bear the official stamp of the signatory, his name, or the official

stamp of the concerned hospital and was exhibited by the IO PW-

17, who would have no personal knowledge about it. According to

PW-17, Exbt-23 was seized vide Seizure Memo Exbt-5 and the date

of seizure is reflected as 09-03-2018 at Gyalshing P.S., from the

victim. The victim did not depose about such seizure to lend

assurance to the statement of the IO. The two witnesses to the

seizure, i.e., Nirmala Gurung PW-9 and Bandana Lepcha PW-7 were

examined. PW -9, only deposed about the seizure of ₹ 10/-

currency note from the victim and not about the seizure of the

Exbt-23. PW-7 did not depose about any seizure. The aforesaid

circumstances compel us to ignore Exbt-23, the contents having

remained unproved.

(i) PW-10 is the headmaster, who is said to have issued

the certificate pertaining to the date of birth of the victim. As per

this witness the school admission register recorded the victim‘s

date of birth as 22-02-2005. It was his admission that the said

register was not furnished in original in the Court and the

certificate Exbt-10 was issued by him but it was not on the basis of

the victim‘s birth certificate. Even if it is presumed that the relevant

entry was there in the school admission register, which was not

produced in Court, a question would arise as to how that entry was

recorded. The failure of the Prosecution to produce the School

Admission Register leaves the question open for con jectures and

surmises which in a criminal case is impermissible.

Crl. A. No.08 of 2023

Tashi Pintso Lepcha vs. State of Sikkim 8

(ii) The Prosecution produced an Aadhar Card Exbt -24

claiming it to be that of the victim. Neither the victim nor the

victim‘s father spoke about it or exhibited it. The Aadhar Card was

exhibited by the PW-17 IO who would have no personal knowledge

about it. The IO deposed that it was collected and seized under

proper Seizure Memo Exbt-5, in the presence of witnesses. The

Seizure Memo Exbt-5 records that it was seized from the victim but

she gave no evidence about the seizure. The two witnesses to the

seizure were again said to be PW-9 and PW-7 but they did not

mention the seizure of the Aadhar Card in their depositions and

Exbt-24 does not even bear the correct first name of the victim.

There is no explanation by the Prosecution in this regard. The

entries in the Aadhar Card Exbt-24 are thereby of no relevance.

(iii) That, leaves this Court with the oral deposition of the

victim and her father stating that the victim was 13 years old. The

evidence of the victim is in the circumstances, only hearsay, as the

parents have not procured or made her birth certificate. The

victim‘s father only stated that “.........My victim daughter is 13

years old.......”. He did not give any further detail, not even her

date of birth. However, during cross-examination, he admitted that

“......... It is true that the Birth Certificate of my victim daughter is

not procured by us till date.....”.

(iv) The oral evidence of the father and the victim that she

was 13 years old may be true but in a criminal prosecution it may

be difficult for this Court to hold that the Prosecution has been able

to prove the minority of the victim as the standard required to

prove the Prosecution case is ‗beyond reasonable doubt‘. In light of

Crl. A. No.08 of 2023

Tashi Pintso Lepcha vs. State of Sikkim 9

the evidence furnished by the Prosecution we are in disagreement

with the Trial Court on the aspect of the victim‘s age.

(v) Now, while dealing with the proof of penetrative sexual

assault it appears that PW-14 in her evidence observed as follows;

“……...........................................................……….

On examination : the patient was conscious,

cooperative, well oriented with time, place and

person. Vitals were stable. Chest and CVS – NAD,

P/A soft, NAD. Breast was well developed. No visible

injuries. No visible fresh or old injuries over the body.

She attained her menarche at 12 years (4 -5 month

ago). Gait was normal. Urine not passed.

On local examination : Painless ulcers over the

left labia majora. Foul smelling discharge present.

Hymen was intact. Redness present over the

posterior commissure which was bright red in colour.

Three vaginal swabs and undergarment were

handed over to the police.

Findings: Urine pregnancy test was negative.

Redness present over the posterior commissure.

Exhibit – 15 is the medical report of the victim

prepared by me, wherein Exhibit – 15(a) is my

signature.

……...........................................................……….”

(vi) It was the admission of the doctor PW-14 under cross-

examination that she did not find any seminal stains in the private

parts of the victim. She had not given any opinion about the

painless ulcers over the labia majora and redness over the

posterior commisure of the victim. The doctor admitted that

painless ulcers over the labia majora and redness over the

posterior commissure are not a sure indication of any kind of

sexual assault. That, such circumstance can also occur due to

factors other than sexual assault. This evidence of the doctor is

being considered along with the evidence of PW-1. According to

PW-1 “………………………… ………..Thereafter, we started walking

towards the jungle. After sometime my brother was sen t back to

school and my ‘Thumba’ took me towards the jungle. I resisted

and told my Thumba that I will go back to school but he did not let

me. He took me towards cave in jungle where he touched my

Crl. A. No.08 of 2023

Tashi Pintso Lepcha vs. State of Sikkim 10

breast and all over my body. Thereafter, the accused removed my

clothes, laid me down and raped me. After he raped me he gave

me ₹ 10/- and ran away from that place ….….”

(vii) PW-17 the IO in his eviden ce stated that, the

undergarment in respect of the victim and vaginal swabs and two

bottles of penile swabs and undergarment in respect of the accused

Tashi Pintso Lepcha were forwarded to RFSL for comparison and lab

analysis. The reports were negative for saliva or semen.

(viii) Now, the evidence of these three witnesses PW-1, PW-

14 and PW-17 are to be taken into perspective. The alleged

incident as per Exbt-3 is said to have taken place between 01.05

p.m. to 01.45 p.m. The FIR was lodged at 1700 hours the same

day. The victim was examined at 08.00 p.m. by PW -14 the same

evening. It is not the Prosecution case that the victim had changed

her undergarment a fter the incident or before her medical

examination by PW-14 which is indicative of the fact that she wore

the same garments as she had worn during the alleged sexual

assault. The victim has given no details or elucidated what she

meant by rape. In Guidelines for medico -legal care for victims of

sexual violence © World Health Organization 2003 , at Page 12, the

physical consequences of rape are detailed as below;

“……...........................................................……….

2.5.1 Physical consequences

……...........................................................……….

Genital injuries in women are most likely to be

seen in the posterior fourchette, the labia

minora, the hymen and/or the fossa

navicularis. The most common types of genital

injuries include:

— tears;

— ecchymosis (i.e. bruising);

— abrasions;

— redness and swelling.

……...........................................................……….”

Crl. A. No.08 of 2023

Tashi Pintso Lepcha vs. State of Sikkim 11

(ix) We have noticed that the evidence of these three

witnesses are inconclusive for the offence of penetrative sexual

assault. The undergarment and vaginal swabs of the victim did not

indicate the presence of spermatozoa or other foreign body fluids

although the apparels were unchanged after the alleged rape. The

concerned scientist, who carried out the forensic analysis, of the

said articles was not examined leading to an adverse inference on

this facet. There is no description of the offence by the victim and

what according to her constituted the offence of rape. I n the

absence of any seminal stains or other incriminating evidence even

on the genital of the victim and considering that the doctor was

unable to give an opinion for the ‗painless ulcers‘ over the left labia

majora, or the reason for the redness over the posterior

commissure, we are inclined to observe that the foul smelling

discharge from her genital as noted by PW-14 and the redness in

the posterior commissure in all likelihood indicated some infection

in her private part as there is no evidence of penetrative sexual

assault on medical examination. In Guidelines for medico-legal care

for victims of sexual violence © World Health Organization 2003 , at

Page 48, Genito-anal injuries related to penetration are detailed as

follows;

“……...........................................................……….

4.5.3 Genito-anal injuries related to

penetration

……...........................................................……….

The posterior fourchette, the labia minora and

majora, the hymen and the perianal folds are

the most likely sites for injury, and abrasions,

bruises and lacerations are the most common

forms of injury (see Figs. 3–5).

……...........................................................……….”

There is no mention of redness in the posterior commissure

in offences of penetrative sexual assault.

Crl. A. No.08 of 2023

Tashi Pintso Lepcha vs. State of Sikkim 12

(x) While examining the evidence of her friends PWs 4, 5,

6 and 8 it is clear that, the victim also did not give them any

details about the incident, in fact she was reluctant to disclose the

incident to them and it was only after much coaxing that she told

them that she was raped by the Appellant sans details of what

constituted the act of rape.

(xi) In the wake of the evidence furnished by the

Prosecution and the details that emanate therefrom, we are of the

considered view that the Prosecution has failed to prove

penetrative sexual assault on the victim by the Appellant. It

appears from the evidence that some form of sexual assault took

place but there is no conclusive finding of penetrative sexual

assault.

8. Hence, based on the evidence on record, we conclude

that the Prosecution has proved its case beyond reasonable doubt

against the Appellant under Section 354A(1)(i) of the IPC which

reads as follows;

“354A. Sexual harassment and punishment for

sexual harassment.─(1) A man committing any of the

following acts─

(i) physical contact and advances involving

unwelcome and explicit sexual overtures;

or”

(i) Consequently, he is sentenced to undergo rigorous

imprisonment of three years and to pay fine of ₹ 10,000/- (Rupees

ten thousand) only, under the Section (supra), in default thereof to

undergo simple imprisonment for two months.

9. In such circumstances, the impugned Judgment and

Order on Sentence of the Trial Court is set aside and the question

framed for determination by this Court is answered accordingly.

10. The Appeal stands disposed of accordingly.

Crl. A. No.08 of 2023

Tashi Pintso Lepcha vs. State of Sikkim 13

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

for information along with its records.

12. A copy of this Judgment be made over to the Appellant

through the Jail Superintendent, Central Prison, Rongyek and to

the Jail Authority for information.

13. Pending applications, if any, also stand disposed of.

( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )

Judge Judge

10-09-2025 10-09-2025

Approved for reporting : Yes

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