The philosophy of sentencing is undergoing change and should not be confined to deterrence: High court of Sikkim

THE HIGH COURT OF SIKKIM : GANGTOK Criminal Appeal Jurisdiction) DATED : 10th December 2021 DIVISION BENCH : THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI JUDGE THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE Crl.A. No.021 Appellant Hem Kumar Chettri versus Respondent State of Sikkim Appeal under Section 374(2) of the Code of Criminal Procedure 1973 Appearance Mr. Gulshan Lama Advocate for the Mr. Thinlay Dorjee Bhutia and Mr. Yadev Sharma Additional Public Prosecutor with Mr. Sujan Sunwar Assistant Public Prosecutor for the respondent. JUDGMENT Meenakshi Madan Rai J. The Appellant aged about 40 years is alleged to have raped the victim aged about 79 years on 15.12.2019 at around 12 p.m. On 16.12.2019 at 1.30 p.m. the victim was medically examined and the Doctor found that she was bleeding from her genital. Charge Sheet was submitted against the Appellant under Sections 376 457 506 of the Indian Penal Code 1860 on completion of investigation by P.W.11 the Investigating Officer of the case. Learned Counsel for the Appellant before this Court submitted that on account of the inconsistency of the victim‟s statement the offence would fall under Section 354 of the IPC and not under Section 376(2)(l) of the IPC. While asserting that Crl.A. No. 021 2 Hem Kumar Chettri vs. State of Sikkim the Appellant was not guilty of the offence of rape it was urged that the sentence of imprisonment imposed by the Learned Trial Court for the offence of rape extending to 15 years be reduced to 10 years i.e. the minimum period prescribed by the provision should it be found by this Court that the offence was indeed committed. That mitigating circumstances exist for such reduction viz. the Appellant is married and has two children both of whom are studying and are financially dependent on him. His wife is a home maker and on account of his incarceration his entire family is financially dependent on his aged father. Reliance was placed on State of Himachal Pradesh vs. Nirmala Devi1 and it was contended that the philosophy of sentencing is undergoing change and should not be confined to deterrence other aspects such as mental health and mitigating circumstances ought to be taken into consideration. The attention of this Court was drawn to the Judgment of the Hon‟ble Supreme Court in Rai Sandeep alias Deepu vs. Stateof the IPC as no medical report was furnished by it to establish that the victim was physically challenged as stated by her in her evidence. Hence the assailed Judgment and Order on Sentence be set aside and the Appellant acquitted of the offence charged. In the 7 SCC 262 8 SCC 21 Crl.A. No. 021 3 Hem Kumar Chettri vs. State of Sikkim alternative the offence reduced to one under Section 354 of the IPC. However he be found guilty of the offence under Section 376 of the IPC the sentence be reduced as prayed. Per contra it was the argument of the Learned Additional Public Prosecutor that there is no question of the evidence of the victim being inconsistent. That there was no eye witness to the incident and P.W.2 has been categorical and consistent in her claim that the Appellant committed the offence. That the evidence of P.W.4 reveals that she had heard the victim shouting on the night of 15.12.2019 which was the night of the incident and the next morning she found the victim in the kitchen with her mother in law. The victim then told her that she had shouted for help the whole night but P.W.4 had not woken up. P.W.5 mother in law of P.W.4 and the victim had in fact gone to the house of the Appellant to inform his parents of the incident and to the house of one “D.B. Police” the same night to lodge a complaint but returned as he was not at home. The victim had also told P.W.4 that the Appellant had sexually assaulted her. That P.W.5 also clearly supported the Prosecution case. Her evidence revealed that P.W.2 had approached her at 1 p.m. the same night of the incident and she along with the victim had gone to the house of one “D.B. Police” and also to the house of the Appellant thereby fortifying the evidence of P.W.2. The Learned Trial Court in its impugned Judgment at Paragraph 44 has reflected that the Defense Counsel at the time of arguments admitted that the victim was physically challenged. In light of these circumstances the impugned Judgment requires no interference and the appeal be dismissed. Crl.A. No. 021 4 Hem Kumar Chettri vs. State of Sikkim The Learned Counsel for the parties have been heard and all the relevant documents perused as also the impugned Judgment and Order on Sentence. The Appellant is aggrieved by Judgment dated 18.02.2021 in S.T. Case No. 01 2020 in the Court of the Learned Judge Fast Track South & West Sikkim at Gyalshing whereby he was convicted of the offence under Sections 376(2)(l) and 457 IPC. The assailed Order on Sentence dated 18.12.2021 incarcerated him as follows imprisonment for a term of fifteen years under Section 376(2) IPC and shall pay a fine of Rs.10 000 only. In default of payment of fine the convict shall undergo simple imprisonment for a term of one under Section 457 IPC the convict is sentenced to undergo rigorous imprisonment for a term of five years and to pay a fine of Rs.2 000 Rupees Two Thousand) only. In default of payment of fine the convict shall undergo simple imprisonment for a term of six months. c. Both sentences shall run concurrently.” The Prosecution case summarized is that on 16.12.2019 at 10.30 hours the victim P.W.2 lodged an oral complaint before the Melli Police Station reduced to writing by the SHO Melli Police Station457 and 506 of the IPC who pleaded “not guilty” to the Charges and claimed trial. The Prosecution thus examined 11 witnesses to prove its case on closure of which the Appellant was examined under Section 313 of the Cr.P.C. The final arguments of the parties were heard thereafter and the Judgment and Order on Sentence pronounced. While considering the evidence on record and the merits of the Prosecution case the word employed by the Learned Counsel for the Appellant for describing the evidence of P.W.2 appears to be a misnomer considering that her evidence reflects no inconsistency at all. She has deposed inter alia as follows “ .. On 15.12.2019 around midnight while I was sleeping in my room Hem Kumar Chettri entered my room through the ventilation. When I started screaming out for my neighbors he told me not to shout and also put off light in my room Thereafter he undressed me and pushed me down got on top of me and raped me. He then told me “Mo Mamm Lai Kei Gardina” P.W.10 was the Medical Officer who examined P.W.2. On her local examination he found the following “ … There was no external injuries seen No fresh injuries were noted in skin. Pubic hair present. Per vagina bleeding was present due to forceful penetration. The bleeding was fresh. Hymen also not intact due to forceful penetration. This injury was also fresh.” 11] His evidence thus revealed that the vaginal bleeding of the victim was not due to any infection but on account of forceful penetration duly fortifying the evidence of the victim P.W.2 thereby establishing the offence of rape committed by the Appellant along with the offence under Section 457 of the IPC. Even if no certificate of physical disability was furnished by the Crl.A. No. 021 7 Hem Kumar Chettri vs. State of Sikkim Prosecution to prove the fact of disability of the victim it is undisputed that she was around eighty years old which itself suffices to not only hold her testimony regarding the state of her health as the truth but also to believe that she would at her age not be physically agile. Besides the Learned Trial Court has recorded in Paragraph 44 of the impugned Judgment that the Counsel for the accused had conceded to the claim of physical disability of the victim during the course of arguments. The Learned Trial Court has also recorded the physical disability of the victim was evident when the victim appeared before the Court for recording her evidence. 12] In light of the discussions which have emanated hereinabove we do not find any mitigating circumstance to reduce the sentence imposed on the Appellant. We also find no reason to interfere with the findings of the Learned Trial Court. 13] The impugned Judgment and Order on Sentence are upheld. 14] Appeal dismissed. 15] No order as to costs. 16] Copy of this Judgment be transmitted forthwith to the Appellant in Jail. ( Meenakshi Madan Rai ) Judge Judge 10 12 2021 10 12 2021 Approved for reporting : Yes yb 

Summary: Petitioner seek a direction to the respondent to recall of witness power to be invoked to meet the ends of justice for strong and valid reasons with cautions and circumspection, and the same issue was held in the judgement passed by a division bench judge HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE, THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE. In the matter Hem, Kumar Chettri versus  State of Sikkim [ Crl.A. No.06 of 2021] dealt with an issue mentioned above. The Appellant, aged about 40 years, is alleged to have raped the victim, aged about 79 years, on 15.12.2019, at around 12 p.m. On 16.12.2019, at 1.30 p.m., the victim was medically examined and the Doctor found that she was bleeding from her genital. Charge-Sheet was submitted against the Appellant under Sections 376/457/506 of the Indian Penal Code, 1860 (for short, the “IPC”), on completion of investigation by P.W.11, the Investigating Officer of the case. The Learned Counsel for the parties have been heard and all the relevant documents perused as also the impugned Judgment and Order on Sentence. As per the victim, she lives alone and that night when she retired to bed at around 00.30 hours after finishing her household chores she heard some sounds. She saw her neighbour, the Appellant, breaking into her room through the gap between the roof and the windows. He turned off the light, disrobed her forcefully and sexually assaulted her. The court perused the facts and arguments presented, it was the opinion In light of the discussions which have emanated hereinabove, we do not find any mitigating circumstance to reduce the sentence imposed on the Appellant. We also find no reason to interfere with the findings of the Learned Trial Court. The impugned Judgment and Order on Sentence are upheld.