Sikkim High Court Upholds Bus Driver's Rape Conviction; Victim's Court Identification Decisive Despite Failed TI Parade

The Sikkim High Court dismissed an appeal by a bus driver convicted of rape, holding that the victim's consistent deposition and corroborating medical evidence outweighed a failed test identification parade and inconclusive forensic results.

The High Court of Sikkim at Gangtok has dismissed the criminal appeal of Sandeep Gajmer @ Sandeep Gazmer, a bus driver convicted of rape under Section 376(1) of the Indian Penal Code, 1860. A Division Bench of Justice Meenakshi Madan Rai and Justice Bhaskar Raj Pradhan, in a judgment delivered on 29 May 2026, found no reason 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 and order on sentence dated 22 August 2024. The bench held that the victim's deposition, her statement recorded under Section 164 of the Code of Criminal Procedure, and the medical evidence together established rape beyond reasonable doubt, and that the prosecution's failure to produce the test identification parade report did not displace that conclusion.

The Incident and Trial Court Findings

On 22 March 2022, the victim's father lodged a missing report stating that his 16-year-old daughter had not returned home after her tuition ended at 5:30 p.m. The Station House Officer registered FIR No. 41/2022 under Section 363 IPC against unknown persons. The victim was subsequently traced and admitted to hospital, where she disclosed to the examining doctor that she had been sexually assaulted.

The charge-sheet filed on 6 June 2022 alleged that the appellant had committed rape against the minor victim and was liable under Section 376 IPC read with Section 4 of the Protection of Children from Sexual Offences Act, 2012. On 19 September 2022, the Special Judge framed two charges: penetrative sexual assault under Section 3(a) of the POCSO Act punishable under Section 4(2), and rape under Section 376(3) IPC, both alleged to have occurred on the evening of 22 March 2022 inside a bus at an isolated place.

Twenty prosecution witnesses were examined at trial. The Special Judge convicted the appellant under Section 376(1) IPC 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. However, the Special Judge acquitted the appellant of the POCSO charges, holding that the prosecution had failed to establish that the victim was a minor within the meaning of Section 2(d) of the POCSO Act. The State did not challenge that finding.

The Victim's Account

In her statement recorded before the Magistrate on 29 March 2022 under Section 164 CrPC, the victim described how, after an argument with her father on 21 March 2022, she had stayed at a roadside waiting shed (“hawa ghar”) rather than return home. 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. He drove her to a petrol pump, then they boarded the bus he drove for a company. They travelled the entire day as he picked up and dropped off employees. That night, inside the bus, he raped her despite her protest. She remembered the registration number of the bus. Afterwards, he drove her back to the petrol pump area and eventually she returned to the waiting shed, where she lost consciousness in the rain.

When she deposed in court on 20 October 2022, the victim identified the appellant on screen as the person who had taken her in the bus and raped her. The defence did not object to this in-court identification. Critically, the suggestions put to the victim during cross-examination reflected an admission by the defence that the appellant had in fact been with her on the day of the incident. The appellant himself confirmed this in his statement recorded under Section 313 CrPC.

Corroborating Evidence from Prosecution Witnesses

The owner of the bus (PW-19) confirmed through testimony and documentary exhibits — including the registration certificate (Exhibit P-23) and an authorisation letter (Exhibit P-24) — that the appellant was the driver of bus bearing registration number SK-03-B-0104. Two company employees (PW-6 and PW-18) recalled seeing a girl board the bus driven by the appellant on a day the previous year. 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) deposed that she had evacuated the victim, found lying unconscious at the waiting shed, and taken her to hospital. Another lady police personnel (PW-11) visited the hospital on 22 March 2022 and was present when Dr. D.P. Sharma (PW-14) inquired from the victim, who disclosed that she had been roaming with a bus driver of a company in a bus bearing number SK-03-B-0104. PW-11 also deposed that another doctor who examined the victim's private parts found signs of recent sexual intercourse.

Dr. D.P. Sharma (PW-14) found the victim brought to the emergency ward in a semi-conscious state on 23 March 2022. On examination, he noted a 5x4 cm reddish blue bruise over the left supraclavicular region. Genital examination revealed a torn hymen at the 6 o'clock position with reddish erythematous swelling and discharge. He opined that there was presence of forceful penetration and prepared a medical report (Exhibit P-16) and a wound certificate (Exhibit P-18).

How the Bench Reasoned

The appellant's senior counsel raised four principal challenges: that medical and forensic reports did not suggest sexual assault; that even if rape was established, the appellant's guilt was not proved; that the victim's age was not proved; and that the prosecution had suppressed the test identification parade report, attracting a presumption against them under Section 114(g) of the Indian Evidence Act, 1872.

On the medical evidence, the bench addressed the concessions made by Dr. D.P. Sharma during cross-examination. He had admitted 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 observed, however, that his admission of finding no injury over the body was inconsistent with his own medical report, which recorded the 5x4 cm bruise over the left supraclavicular region. Read together, the torn hymen, the reddish erythematous swelling, and the bruise were, in the bench's view, suggestive of sexual assault and corroborated the victim's account.

On the forensic evidence yielding no positive result, the bench relied on Sunil v. State of Madhya Pradesh [(2017) 4 SCC 393] for the proposition that while a positive forensic result would constitute clinching evidence against an accused, a negative result does not negate the weight of other material on record. The bench held that the failure to clinch the case with forensic evidence did not displace the victim's deposition or the medical evidence.

On the non-examination of Dr. Shrabanti and Dr. Karma Mingyur, who had conducted the genital examination, the bench held this was not fatal. The wound certificate (Exhibit P-18) had been prepared by Dr. D.P. Sharma himself, who had witnessed the genital examination. His presence and authorship of the certificate were sufficient.

The test identification parade issue received detailed treatment. The Investigating Officer (PW-20) confirmed during cross-examination that a test identification parade had been conducted but its report was not enclosed in the charge-sheet. The victim herself admitted during cross-examination that she had gone to the 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 a document which could have been produced but was withheld would, if produced, be unfavourable to the party withholding it.

The bench held, however, that this presumption is rebuttable. The appellant's in-court identification by the victim had not been challenged during cross-examination. The defence's own suggested questions during cross-examination amounted to an admission that the appellant was with the victim in the bus on the relevant day. The appellant repeated this admission in his Section 313 CrPC statement. In these circumstances, the bench found that the evidence led by the prosecution rebutted the Section 114(g) presumption.

The bench distinguished the Supreme Court decisions cited by the appellant. In Rajesh Patel v. State of Jharkhand [(2013) 3 SCC 791], the prosecution story had been found most improbable and unnatural, the FIR was inordinately delayed, and the doctor had not been examined at all. In Subhash v. State of Haryana [(2011) 2 SCC 715], the dying declaration was found unbelievable due to contradictions and inconsistencies. Neither situation applied here, where the core of the victim's deposition remained intact through cross-examination and was corroborated by multiple witnesses and medical findings.

The bench also considered two of its own earlier decisions. In Shaktiman Rai v. State of Sikkim [2024:SHC:39], the court had held that the prosecution must stand on its own legs and that conviction cannot be a moral one. In Sandeep Tamang v. State of Sikkim [2016:SHC:84], the prosecution had failed to establish the victim's age and the evidence did not inspire confidence. The bench found the present case distinguishable: the victim's deposition was consistent in its core, the appellant's presence with her was admitted, and the medical evidence corroborated the assault.

The bench concluded that the medical evidence read with the victim's deposition clearly established that the victim was raped by the appellant inside bus SK-03-B-0104 on the evening of 22 March 2022, and that it would not have been anyone else beside the appellant who was responsible.

Outcome

The Division Bench dismissed the appeal in its entirety. The conviction under Section 376(1) IPC and the sentence of ten years rigorous imprisonment with a fine of Rs. 5,000 imposed by the Special Judge, Gangtok, were confirmed. The court directed that a copy of the judgment be sent to the Special Judge, Gangtok, along with the records.