Sikkim High Court Acquits Youth in Rape Case | Age of Victim Not Proved | Consent Evident and Sexual Acts Not Forced | No Justification to Sustain Conviction Under Section 376 IPC
Safiya Malik
The Division Bench of the High Court of Sikkim at Gangtok comprising Justice Meenakshi Madan Rai and Justice Bhaskar Raj Pradhan set aside the conviction of the appellant under Section 376(1) of the Indian Penal Code, 1860. The appellant had earlier been convicted and sentenced to ten years of rigorous imprisonment by the Special Judge (POCSO Act), Gangtok. The High Court, however, stated that the prosecution failed to prove the victim's minority and that the sexual act was consensual, thereby invalidating the application of both POCSO and IPC rape provisions.
The Division Bench observed that the prosecution did not furnish reliable evidence to establish the victim's minority as required under Section 2(d) of the Protection of Children from Sexual Offences Act, 2012. Furthermore, the Bench noted that the circumstances and testimonies indicated consent, leading to the acquittal of the appellant.
The appellant was charged with multiple offences under the POCSO Act, 2012 and the IPC. Specifically, the charges included Section 5(j)(ii) (pregnancy of a minor due to sexual assault), Section 5(l) (repeated penetrative sexual assault), and Section 5(q) (aggravated penetrative sexual assault on a pregnant minor), all punishable under Section 6 of the POCSO Act. Additionally, he was charged under Sections 376(2)(n), 376(2)(h), and 376(3) of the IPC.
The prosecution alleged that the appellant, who was in a romantic relationship with the victim, had engaged in sexual intercourse with her on multiple occasions, resulting in pregnancy. An FIR was filed on 14.05.2021 by the victim's father reporting her as missing since 12.05.2021. Upon investigation, the police registered offences under Sections 363 and 376 IPC, read with Section 4 of the POCSO Act.
The learned Trial Court, after considering the evidence, concluded in paragraph 28 of the judgment dated 30.07.2024 that the victim was not a minor under Section 2(d) of the POCSO Act. As a result, the court acquitted the appellant of the POCSO and IPC charges related to minor victims but convicted him under Section 376(1) IPC for alleged non-consensual sexual intercourse on 12.04.2021.
Challenging this conviction, the appellant contended that the victim was not a minor, that the relationship was romantic, and the sexual act consensual. It was submitted that the birth certificate of the victim was registered ten years after her birth and lacked legal compliance, casting serious doubt on its reliability.
The prosecution conceded the inability to establish the age of the victim but argued that the act was non-consensual based on the victim's deposition.
The High Court scrutinised the evidentiary material relating to the victim's age. It noted that PW-9, Additional Director-cum-Registrar of Births and Deaths, stated the victim's date of birth was recorded as 10.07.2007 but the registration occurred only on 29.05.2017. It was observed that "since the registration of the victim's birth was delayed by ten years the provisions of the act prescribing the necessities for belated registration were not complied with."
The Bench found that the birth certificate lacked legal sanctity as no reasons for delayed registration were documented. The court recorded that the school principal (PW-5) admitted to being unaware of the basis of the birth entry in the school register and was not working in the school when the victim was admitted. The Bench further observed that "it would be fatal to rely on the school records also."
The judgment referred to State of Sikkim vs. Girjaman Rai @ Kami and Others stating, "Date of birth is a question of fact which must be cogently proved by leading evidence... The best evidence rule must be necessarily followed while proving the contents of a birth certificate." It also cited Mangala Mishra @ Dawa Tamang @ Jack vs. State of Sikkim stating that authenticity of documents must be proved under the Indian Evidence Act.
The Division Bench agreed with the Trial Court's reasoning and held that "the prosecution has failed to prove that she was a child in terms of Section 2(d) of the POCSO Act."
On the question of consent, the Court examined the testimony of PW-1, the victim. While the Trial Court had recorded at paragraph 15 that the victim initially expressed unwillingness and at paragraph 16 quoted her as saying, "where he forced me to have sex with him. I refused... but he insisted," the High Court did not concur with the inference of non-consent.
The Division Bench recorded, "The fact that, she did not seek help from any person or tell her friend or parents, more especially her mother, about the incident, indicates that in all probability she had consented to the act." The Court further noted that the victim agreed to elope with the appellant upon confirming her pregnancy, a conduct inconsistent with the assertion of lack of consent.
Hence, the High Court concluded, "we do not agree with the findings of the Learned Trial Court that the act of the Appellant, on 12-04-2021 was not consensual and the Appellant was guilty of rape. On this count the observation of the Learned Trial Court appears to be misconceived."
The appeal was allowed and the appellant was acquitted of the offence under Section 376(1) IPC. He was ordered to be released forthwith unless required in any other case, which the Jail Authorities were directed to verify. Any fine deposited by the appellant was directed to be reimbursed. The judgment was to be sent immediately to the Trial Court and to the Jail Authorities at Central Prison, Rongyek, via e-mail for necessary action. The Jail Superintendent was also instructed to provide a soft copy of the judgment to the appellant.
Advocates Representing the Parties
For the Appellant: Mr. Madan Kumar Sundas, Advocate (Legal Aid Counsel)
For the Respondent: Mr. Yadev Sharma, Additional Public Prosecutor, and Ms. Pema Bhutia, Assistant Public Prosecutor
Case Title: XXX vs. State of Sikkim
Case Number: Crl. A. No.27 of 2024
Bench: Justice Meenakshi Madan Rai and Justice Bhaskar Raj Pradhan
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