Sikkim High Court Upholds Rape Conviction Despite Negative Forensic Result and Failed Test Identification Parade
The Division Bench found the victim's court testimony, corroborated by medical evidence and multiple prosecution witnesses, sufficient to sustain conviction under Section 376(1) IPC.
The High Court of Sikkim at Gangtok has dismissed a criminal appeal filed by Sandeep Gajmer @ Sandeep Gazmer, a bus driver convicted of rape under Section 376(1) of the Indian Penal Code, 1860. The Division Bench of Justice Meenakshi Madan Rai and Justice Bhaskar Raj Pradhan, with the judgment authored by Justice Bhaskar Raj Pradhan, declined to interfere with the ten-year rigorous imprisonment and fine of Rs. 5,000 imposed by the Special Judge (POCSO Act), Gangtok, by judgment dated 21 August 2024. The bench held that the victim's deposition in court, read with the medical evidence and corroborating witness testimony, established rape beyond reasonable doubt, and that neither the negative forensic result nor the victim's failure to identify the appellant at the test identification parade was fatal to the prosecution's case.
The Conviction Below and the Appeal
The Special Judge, POCSO Act, Gangtok, convicted the appellant in S.T. (POCSO) Case No. 14 of 2022 and sentenced him to ten years rigorous imprisonment with a fine of Rs. 5,000. The victim was also recommended for compensation of Rs. 1,00,000 under the Sikkim Compensation to Victims (or their Dependents) Scheme, 2021.
The Special Judge, while satisfied that rape had been committed, found that the prosecution had failed to establish the victim's minority under Section 2(d) of the Protection of Children from Sexual Offences Act, 2012. As a result, the conviction was recorded under Section 376(1) IPC rather than the aggravated provisions. The State did not challenge the finding on minority. The appellant, presently lodged in Rongyek Jail, Gangtok, filed the present appeal under Section 415(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 challenging only the conviction under Section 376(1) IPC.
What the Appellant Argued
Mr. N. Rai, Senior Advocate, appearing with Mr. Yozan Rai and Ms. Tara Devi Chettri for the appellant, advanced four principal contentions. First, the defence had demolished the medical evidence during trial, and the medical and forensic reports did not suggest sexual assault. Second, even if rape was established, the appellant's individual guilt was not proved. Third, the victim's age was not proved. Fourth, the prosecution had suppressed the test identification parade report, which should raise a presumption against them under Section 114(g) of the Indian Evidence Act, 1872.
The Senior Counsel relied on two Supreme Court decisions and two earlier Sikkim High Court decisions. In Rajesh Patel vs. State of Jharkhand, (2013) 3 SCC 791, the Supreme Court had acquitted an accused where the prosecution story was found improbable, the FIR was inordinately delayed, and the doctor and investigating officer were not examined. In Subhash vs. State of Haryana, (2011) 2 SCC 715, the Supreme Court found a dying declaration unbelievable due to contradictions and embellishments. From this court, the appellant cited Shaktiman Rai vs. State of Sikkim, 2024:SHC:39, where the Division Bench had acquitted an accused on the ground that the prosecution failed to prove its case beyond reasonable doubt and the identity of the assailant was not established. The appellant also cited Sandeep Tamang vs. State of Sikkim, 2016:SHC:84, where the court had found the prosecution unable to establish the victim's age.
The Additional Public Prosecutor, Mr. Yadev Sharma, with Mr. Sujan Sunwar, submitted that the factum of rape had not been demolished and that the prosecution had established the appellant raped the victim, with no denial that he was with her on the day in question.
The Incident and the Evidence at Trial
On 22 March 2022, the victim's father (PW-2) lodged a missing report stating that his daughter, aged 16 years, had not returned home after tuition ended at 5:30 p.m. The Station House Officer (PW-10) registered FIR No. 41/2022 under Section 363 IPC against unknown persons. The victim was subsequently traced and admitted to hospital. During medical examination by Dr. D.P. Sharma (PW-14), she disclosed that she had been sexually assaulted. A charge-sheet was filed on 6 June 2022 alleging rape against the appellant under Section 376 IPC read with Section 4 of the POCSO Act.
In her statement recorded under Section 164 Cr.P.C. on 29 March 2022, the victim stated that on 21 March 2022 she had quarrelled with her father and, after tuition, did not wish to return home. She stayed at a “hawa ghar” (kiosk/waiting shed). A man came in a bus and asked her to accompany him; she refused. The next morning, hungry and cold, she agreed when he returned in a different vehicle. He drove her to a petrol pump, then they boarded the bus he drove for a company. They travelled the entire day while he picked up and dropped off employees. That night, inside the bus, he forced himself on her and raped her despite her protest. He later apologised. He then drove to the petrol pump, asked her to stay in a vehicle, and eventually told her to leave. She returned to the waiting shed, where it was raining, and may have lost consciousness.
Twenty prosecution witnesses were examined at trial. The owner of the bus (PW-19) confirmed the appellant was the driver of bus bearing registration no. SK-03-B-0104, supported by the registration certificate (Exhibit P-23/PW-19) and an authorisation letter (Exhibit P-24/PW-19). Two company employees (PW-6 and PW-18) identified the appellant as the driver and recalled seeing a girl board the bus with him around the relevant period. An employee at the petrol pump (PW-13) identified the appellant as the driver who had come to the pump and asked him to give water to a girl in the bus. Lady police personnel (PW-4) evacuated the victim, who was lying unconscious at the waiting shed, to hospital. Another lady police personnel (PW-11) visited the hospital and deposed that when Dr. D.P. Sharma inquired from the victim, she disclosed she had been roaming with a bus driver of a company in bus no. SK-03-B-0104, and that another doctor found signs of recent sexual intercourse on genital examination.
Dr. D.P. Sharma (PW-14) found a 5x4 cm reddish blue bruise over the left supraclavicular region and, on genital examination, a torn hymen at the 6 o'clock position with reddish erythematous swelling and discharge. He opined that there was presence of forceful penetration. The genital examination was conducted by Dr. Shrabanti and Dr. Karma Mingyur in his presence, and he prepared the wound certificate (Exhibit P-18/PW-14) himself.
How the Division Bench Reasoned
The bench identified the victim's version as central to the prosecution, as it is in every case of sexual offence. The victim deposed on 20 October 2022, identified the appellant on screen as the person who took her in the bus and raped her, and her court identification was not objected to by the defence. The cross-examination of the victim, though exhaustive, brought out certain discrepancies and exaggerations. The bench noted this required careful scrutiny, but found that the core of her deposition — that the appellant raped her inside bus no. 104 — remained intact, consistent with her Section 164 Cr.P.C. statement.
On the question of the appellant's identity, the bench observed that the defence, through suggested questions during cross-examination of the victim, had effectively admitted that the appellant was with the victim in the bus on the relevant day. The appellant also admitted this voluntarily in his statement under Section 313 Cr.P.C. The bench held that the cases relied upon by the appellant — particularly Rajesh Patel and Shaktiman Rai — turned on their own facts, where the prosecution story was improbable or the identity of the assailant was genuinely in dispute. Neither condition applied here.
On the non-examination of Dr. Shrabanti and Dr. Karma Mingyur, who conducted the genital examination, the bench held this was not fatal. Dr. D.P. Sharma had witnessed the examination himself and prepared the wound certificate. The bench distinguished this from Rajesh Patel, where the doctor who conducted the medical examination was not examined at all.
On the medical evidence, the bench addressed the admissions made by Dr. D.P. Sharma in cross-examination — that there was no fresh injury over the genital region, no fresh bleeding from the torn hymen, and that the reddish erythematous swelling could be caused by non-maintenance of hygiene. The bench noted that the doctor's admission of no injury over the body was contradicted by his own medical report, which recorded the 5x4 cm bruise over the left supraclavicular region. The bench held that the combination of the torn hymen, the reddish erythematous swelling, and the bruise was suggestive of sexual assault and corroborated the victim's account.
On the negative forensic result, the bench applied the principle from Sunil vs. State of Madhya Pradesh, (2017) 4 SCC 393, that a positive forensic result constitutes clinching evidence against an accused, but a negative result does not negate the weight of other material evidence on record. The bench held that the failure to clinch the case with forensic evidence did not negate the victim's deposition, the medical evidence, or the other prosecution witnesses.
The test identification parade issue received detailed treatment. The Investigating Officer (PW-20) confirmed during cross-examination that a test identification parade was conducted but the report was not enclosed in the charge-sheet. The victim admitted in cross-examination that she had gone to jail for the parade and could not identify the appellant from the line-up. The bench acknowledged the presumption under Section 114(g) of the Indian Evidence Act, 1872 — that suppressed evidence, if produced, would be unfavourable to the party withholding it. However, the bench held this is a rebuttable presumption. Given that the victim's failure to identify the appellant at the parade was already on record through her own admission, the presumption operated only to that extent. The bench held that the prosecution's evidence — the victim's court identification, the appellant's own admissions in cross-examination and under Section 313 Cr.P.C., and the corroborating witnesses — rebutted the presumption.
The bench also reiterated the principle from Shaktiman Rai that identification at a test identification parade belongs to the stage of investigation and is not in itself relevant at trial. The actual evidence of identification is that given by witnesses in court. Since the appellant's court identification was not even challenged in cross-examination, the failed parade did not assist the defence.
Outcome
The Division Bench held that the medical evidence read with the victim's deposition clearly established that the victim was raped by the appellant inside bus no. SK-03-B-0104 on the evening of 22 March 2022. The bench expressed the view that it would not have been anyone else beside the appellant who was responsible for the act. The conviction under Section 376(1) IPC and the consequent sentence were found to call for no interference. CRL. A. No. 30 of 2024 was dismissed. A copy of the judgment was directed to be sent to the Special Judge, Gangtok, along with the records.