Chenga Tshering Bhutia vs State of Sikkim
- Court
- High Court of Sikkim
CNR No: SKHC010001662024
THE HIGH COURT OF SIKKIM: GANGTOK
(Criminal Appellate Jurisdiction)
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DIVISION BENCH: THE HON’BLE MR. JUSTICE A. MUHAMED MUSTAQUE, CHIEF JUSTICE
THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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Crl. A. No. 31 of 2024
Chenga Thsering Bhutia,
Aged about 55 years,
S/o Tenthok Bhutia,
R/o Melli Gumpaa Tashi Gaon,
Melli Aching, West Sikkim.
A/P State Central Prison, Rongyek,
Sikkim.
... Appellant
versus
State of Sikkim .
... Respondent
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Appearance:
Mr. D.K. Siwakoti, Advocate (Legal Aid Counsel) for the Appellant.
Mr. Thinlay Dorjee Bhutia, Public Prosecutor and Mr. Yadev Sharma,
Additional Public Prosecutor for the Respondent.
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Judgment Reserved on : 26.06.2026
Judgment Pronounced on : 10.07.2026
Judgment uploaded on : 10.07.2026
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J U D G M E N T
(A. Muhamed Mustaque, C.J.)
On 19.04.2023, a ninety year old woman was found screaming by
her son, examined as PW-8, who resided in close proximity to the house
of his youngest brother, where the victim, their mother, was residing at
the time of the incident. On the following day, on 20.04.2023, an FIR
Crl. A. No.31 of 2024
(Chenga Tshering Bhutia vs. State of Sikkim)
alleging the commission of the offence of Rape was registered at
Gyalshing Police Station based on the information provided by the
grandson (PW-3) of the victim, who is also the nephew of PW-8. The
Appellant has been convicted for offences punishable under Sections
376(2)(j) and 450 of the Indian Penal Code, 1860 (IPC), and has
challenged the said conviction and sentence before this Court.
2. The Trial Court held the Appellant guilty for the offences of rape
and house trespass in order to commit an offence punishable with
imprisonment. For the offence under Section 376 (2)(j) IPC, the
Appellant was sentenced to undergo rigorous life imprisonment for the
remainder of his life without eligibility for clemency/parole during the
period of his imprisonment along with a fine of Rs. 30,000 (Rupees
Thirty Thousand). For the offence under Section 450 of IPC, he was
sentenced to undergo rigorous imprisonment for a term of ten (10)
years and to pay a fine of Rs. 10,000 (Rupees Ten Thousand). Both
sentences were directed to run concurrently.
3. The victim was physically frail and weak, required assistance to
walk and have food and was incapable of giving any statement owing to
the advanced stage of dementia, which rendered her unable to
recognize even her own family members. She was found to be mentally
incapable of undergoing either examination or cognitive assessment and
was unable to comprehend or respond to any questions put to her. The
Specialist (Psychiatry) (PW-1), the Medical Officer (PW-2) and the
Special Educator (PW-9), affirmed her mental state and physical
condition.
4. This case presents a peculiar situation wherein the Investigation
Officer was unable to record the statement of the victim due to her
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(Chenga Tshering Bhutia vs. State of Sikkim)
severely deteriorated mental and physical condition. The victim
subsequently passed away on 21.06.2023. Consequently, the
prosecution was deprived of the direct testimony of the victim. The only
eyewitness to the incident was PW-8. The Trial Court primarily relied
upon his testimony which was corroborated by the statements of the
victim’s youngest son (PW-4), the ward panchayat (PW-6), the victim’s
grandson (PW-3) and the forensic evidence, to convict the Appellant.
5. The principle question arising for consideration is whether the
testimony of the PW-8 is reliable and if so, whether the prosecution has
successfully established the essential ingredients constituting the
offence of rape. The PW-8 deposed that he found the Appellant on top of
the victim and he described what he witnessed as the commission of
rape. However, he did not describe the precise nature of the sexual act
on the victim. According to PW-8, he had gone to feed grass to his cows
and he heard his mother crying out “Aiya Aiya”. At that time, all other
family members had gone to the dispensary for a medical check-up,
leaving his mother/victim alone at home. Upon rushing to the house
after hearing his mother scream, he found the Appellant with his
trousers lowered below his knees, on top of his mother and allegedly
committing rape on her. He further noticed that his mother’s Bakkhu
(traditional dress) had been pushed up and that she was naked from the
waist down.
6. The first issue concerns the identification of the Appellant,
followed by the reliability of PW-8’s testimony. The evidence clearly
establishes that the Appellant and PW-8 belonged to the same village
and were previously acquainted which is an undisputed fact.
Immediately after witnessing the incident, PW-8 attempted to contact
PW-6, although the latter did not initially answer his call. Thereafter,
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(Chenga Tshering Bhutia vs. State of Sikkim)
when PW-6 returned the call, PW-8 narrated the entire incident to him.
The following morning, PW-8 also informed PW-4 and PW-3, whereupon
PW-3 subsequently lodged the FIR.
7. The immediate conduct of PW-8 in informing PW-6 and thereafter
his family members assumes significance, particularly as he was the sole
ocular witness. His conduct is relevant under Section 8 of the Indian
Evidence Act, 1872 and is corroborated by the independent testimony of
PW-6 who confirmed that PW-8 narrated the incident to him
immediately after its occurrence. PW-6 being the Ward Panchayat and
an independent person with no apparent motive corroborated the said
version. Furthermore, the report received from the Central Forensic
Science Laboratory, Bhopal confirmed upon forensic examination that
semen of the Appellant was found on the Victim’s apparel (M.O-VIII).
On the basis of the forensic evidence and the testimonies as referred to
above, the Trial Court concluded that the Appellant was present at the
scene inside the victim’s house and the commission of rape was proved
with the offence of house trespass consequently following.
8. The next issue requiring determination is whether the facts proved
on record constitute the offence of rape. This is a very complex question
in this matter but this Court afforded sufficient opportunity to the
Learned Counsel for the Appellant to distinguish the acts alleged against
the Appellant. The Learned Counsel submitted that, at best the evidence
established only an attempt to commit rape punishable under Section
511 of IPC and did not establish the completed offence of rape and
would hence attract lesser punishment.
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(Chenga Tshering Bhutia vs. State of Sikkim)
9. The Learned Public Prosecutor, on the other hand, submitted that
the surrounding circumstances, coupled with the ocular and forensic
evidence, clearly established the offence of rape.
10. A significant distinction exists between the law governing rape
before and after the Criminal Law (Amendment) Act, 2013. Following
the amendment, penile-vaginal intercourse is no longer an indispensable
requirement for constituting the offence of rape. Under clause (c) of
Section 375 IPC, 1860, the manipulation of any part of the body
resulting in penetration into any part of the body is sufficient to
constitute rape. The expression “manipulates” broadly includes the
movement or positioning of the body so as to facilitate penetration. This
aspect has been considered by the Kerala High Court in Santhosh vs.
1
State of Kerala , the Court held that where the body of the victim is
manipulated by holding her legs tightly together to simulate a sensation
akin to penetration of an orifice, and penetration is made between the
thighs so held together, the offence of rape under Section 375 is
attracted. The Court further observed that word "manipulation" includes
an artificial creation, and such manipulation causes penetration of the
crevice, with the muscles engulfing the object to create or simulate the
effect of normal penile-vaginal intercourse. Accordingly, it was held in
that case the appellant committed the offence of rape by engaging in a
penetrative sexual act between the thighs of the victim held together,
which amounted to manipulation of the victim's body for sexual
gratification and culminated in ejaculation. Thereafter, in Prafulla
2
Mundari alias Pelka vs. State Of Odisha , the Court observed that
rubbing the penis on the victim's vagina or engaging in a penetrative
sexual act between her buttocks or thighs amounts to manipulation of
1
2021 SCC OnLine Ker 16519.
2
2021 SCC OnLine Ori 2556.
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(Chenga Tshering Bhutia vs. State of Sikkim)
the body for sexual gratification under clause (c) of Section 375 IPC, as
it includes manipulating any part of a woman's body so as to cause
penetration into any part of her body. The absence of external or
internal injuries suggestive of forcible sexual intercourse was held not to
be sufficient, by itself, to discard the prosecution case.
11. Accordingly, under the broadened statutory definition introduced
by the 2013 Amendment, penile-vaginal intercourse is not mandatory. It
is sufficient if penetration occurs into any part of the body as
contemplated under Section 375(c) of IPC, which is reproduced below
for reference:
”(c) manipulates any part of the body of a woman so as to
cause penetration into the vagina, urethra, anus or any
part of body of such woman or makes her to do so with
him or any other person”
12. The difficult question, however, concerns the proof of penetration.
Since the victim was incapable of making any statement, the
prosecution was deprived of the most direct evidence on this aspect.
The report of the Medical Officer (PW-2) did not reveal external injuries
and injuries to genital organs, nor did it disclose any medical evidence
conclusively establishing penile penetration or sexual intercourse.
Nevertheless, semen belonging to the Appellant was detected on the
victim’s apparel and PW-8 found the Appellant on top of the victim.
Ordinarily, herein the victim alone would have been in a position to state
whether penetration had occurred. The absence of such testimony
therefore requires the Court to determine whether penetration can
nevertheless be inferred from the proved circumstances.
13. The question that then arises is whether the Court can presume
penetration solely on the basis of the presence of the Appellant’s semen
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Crl. A. No.31 of 2024
(Chenga Tshering Bhutia vs. State of Sikkim)
3
on the victim's clothing. Penetration , in its ordinary meaning implies
penetration of penis into the vagina, which alone constitutes rape.
However, after the amendment to Section 375 IPC, penetration is no
longer confined to vaginal penetration but extends to penetration into
the vagina, urethra and anus or any other part of the body in the
manner contemplated under the statute. Nevertheless, proof of
penetration, however slight, remains the indispensable ingredient of the
offence of rape. The seminal emission is not necessary, nor is injury to
the genitals essential. The question, therefore, is not whether
ejaculation occurred, but whether penetration, within the meaning of
Section 375 IPC, has been established beyond reasonable doubt.
14. In the present case, PW-8 merely stated that he witnessed the
Appellant committing rape upon his mother. Significantly, he did not
depose that he actually witnessed the Appellant penetrating vagina or
any part of the victim’s body. The question, therefore, is whether the
Court can infer such penetration solely from the surrounding
circumstances proved on record and whether the burden of proving
those circumstances shifts to the Appellant under Section 106 of the
Indian Evidence, 1872, Act once the foundational facts are established
by the prosecution.
15. To answer the above question, it is necessary to examine what
constitutes the completed offence of rape. The consistent view taken by
the Supreme Court as well as various High Courts is that the essential
and determinative ingredient of rape is penetration and not merely
ejaculation. Even the slightest degree of penetration is sufficient to
constitute the offence of rape. The Supreme Court in Koppul Venkat
3
Macdonald Critchley (ed.), Butterworths Medical Dictionary 1268 (Butterworth & Co. Ltd.,
Borough Green, Sevenoaks, Kent, Second Edition/ 1978).
Page 7 of 14
Crl. A. No.31 of 2024
(Chenga Tshering Bhutia vs. State of Sikkim)
4
Rao vs. State of A.P held that the sine qua non of the offence of rape
is penetration. The same principle has consistently been reiterated by
various High Courts including, Murugadoss vs. State by Inspector of
5
Police, All Women Police Station, Tindivanam , Juned vs. State of
6
Maharashtra, through Police Station Officer and Another and
7
Suresh vs. State of Haryana all of which held that the sine qua non
of the offence of rape is penetration and not ejaculation.
16. Following the Amendment of 2013, rape also includes
manipulation resulting in penetration as discussed in paragraphs 10 and
11 above. Further, the insertion of any object in the manner
contemplated under Section 375 (b) of IPC also constitutes rape.
Section 375(b) provides:
” (b) inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the urethra or
anus of a woman or makes her to do so with him or any
other person ”
17. In the present case, however, the prosecution has never alleged
that the sexual assault was committed by the use of any object. The
case of the prosecution rests entirely upon alleged penile penetration.
The question therefore is whether, in the absence of medical evidence
establishing penetration and in the absence of victim’s testimony the
Court can nevertheless conclude that penetration occurred during the
alleged assault. In our considered view, the answer is in the affirmative,
but only where the proved facts and surrounding circumstances are so
definite and compelling that they exclude every reasonable hypothesis
4
(2004) 3 SCC 602.
5
2014 (3) MLJ (Cri.) 10.
6
2025 SCC OnLine Bom 910.
7
2007 (2) LawHerald 1532.
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Crl. A. No.31 of 2024
(Chenga Tshering Bhutia vs. State of Sikkim)
except that of penetration. The Court must undertake a careful analysis
of the proved facts to determine whether the nature of the assault
admits of no reasonable inference other than penile penetration. The
evidence must establish that the male genital organ was brought into
such contact with the woman's genitalia or any part of the body in a
manner capable of producing the penile-vaginal effect constituting
penetration within the meaning of the relevant provisions. Although
penetration may be slight and need not be proved by direct evidence or
medical findings in every case, the inference of penetration cannot rest
on conjecture or suspicion. It must arise as the only reasonable
conclusion flowing from the proved circumstances.
18. The Hon’ble Supreme Court, in State of Madhya Pradesh vs.
8
Mahendra Alias Golu has distinguished between preparation and
attempt to commit rape. The principles laid down therein are relevant to
the present appeal:
“…
12. It is a settled proposition of criminal
jurisprudence that in every crime, there is first,
mens rea (intention to commit), secondly,
preparation to commit it, and thirdly, attempt to
commit it. If the third stage, that is, “attempt” is
successful, then the crime is complete. If the
attempt fails, the crime is not complete, but law still
punishes the person for attempting the said act.
“Attempt” is punishable because even an
unsuccessful commission of offence is preceded by
mens rea, moral guilt, and its depraving impact on
the societal values is no less than the actual
commission.
13. There is a visible distinction between
“preparation” and “attempt” to commit an offence
8
(2022) 12 SCC 442.
Page 9 of 14
Crl. A. No.31 of 2024
(Chenga Tshering Bhutia vs. State of Sikkim)
and it all depends on the statutory edict coupled
with the nature of evidence produced in a case. The
stage of “preparation” consists of deliberation,
devising or arranging the means or measures, which
would be necessary for the commission of the
offence. Whereas, an “attempt” to commit the
offence, starts immediately after the completion of
preparation. “Attempt” is the execution of mens rea
after preparation. “Attempt” starts where
“preparation” comes to an end, though it falls short
of actual commission of the crime.
14. However, if the attributes are unambiguously
beyond the stage of preparation, then the
misdemeanours shall qualify to be termed as an
“attempt” to commit the principal offence and such
“attempt” in itself is a punishable offence in view of
Section 511 IPC. The “preparation” or “attempt” to
commit the offence will be predominantly
determined on evaluation of the act and conduct of
an accused; and as to whether or not the incident
tantamounts to transgressing the thin space
between “preparation” and “attempt”. If no overt act
is attributed to the accused to commit the offence
and only elementary exercise was undertaken and if
such preparatory acts cause a strong inference of
the likelihood of commission of the actual offence,
the accused will be guilty of preparation to commit
the crime, which may or may not be punishable,
depending upon the intent and import of the penal
laws.
…”
19. In the facts and circumstances of the present case, the application
of Section 106 of the Indian Evidence Act, 1872 enables the Court to
draw an inference that the Appellant had attempted to commit rape,
particularly when he has offered no explanation as to how his semen
came to be found on the victim's clothing. The prosecution has
established a prima facie case through cogent ocular and forensic
evidence which conclusively establishes that the semen found on the
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(Chenga Tshering Bhutia vs. State of Sikkim)
victim's clothing belonged to the Appellant. These circumstances having
been proved by the prosecution, the facts relating to the precise nature
of the sexual assault were especially within the knowledge of the
Appellant, thereby attracting the application of Section 106 of the
Evidence Act. The Appellant alone was in a position to explain what
transpired during the incident and how his semen came to be deposited
on the victim's clothing.
20. The prosecution, although, has not proved penetration beyond
reasonable doubt so as to sustain a conviction for the completed offence
of rape. However, the proved circumstances unmistakably establish that
the Appellant had commenced the execution of the offence and had
proceeded far beyond the stage of mere preparation. Having regard to
the advanced age and physical condition of the victim, the evidence
does not rule out the possibility that the Appellant was unable to
accomplish penetration. In the absence of any explanation from the
Appellant, and viewed in the light of the proved ocular and forensic
evidence, the only reasonable inference is that the Appellant had
attempted to commit rape. The application of Section 106 in the present
case does not relieve the prosecution of its burden to prove the
foundational facts, rather, it supplements the prosecution case by
permitting the Court to draw an adverse inference in respect of facts
exclusively within the knowledge of the Appellant.
21. The Supreme Court has held in Shambhu Nath Mehra v. State
9
of Ajmer that the general rule in criminal law is that the burden of
proving the guilt of the accused always rests upon the prosecution, and
Section 106 of the Indian Evidence Act is not intended to relieve the
prosecution of that obligation. The provision is confined to exceptional
9
(1956) 1 SCC 337.
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Crl. A. No.31 of 2024
(Chenga Tshering Bhutia vs. State of Sikkim)
situations where it would be impossible or disproportionately difficult for
the prosecution to prove facts that are especially within the knowledge
of the accused and which the accused can establish without difficulty.
However, the provision cannot be invoked to dilute the settled principle
that, except in exceptional cases, the burden of proof remains upon the
10
prosecution. Further, In the State of Rajasthan v. Kashi Ram , the
Supreme Court held that Section 106 of the Indian Evidence Act, 1872
does not shift the prosecution's burden of proving the guilt of the
accused. However, where facts are especially within the knowledge of
the accused, his failure to offer a reasonable explanation may be treated
as an additional link in the chain of circumstantial evidence, provided
the prosecution has otherwise established the incriminating
circumstances.
22. In the present case, the prosecution has conclusively established
11
that the Appellant had ejaculated. Ejaculation is the emission of
seminal fluid and is ordinarily associated with sexual stimulation. The
ocular evidence establishes that the Appellant was found above the body
of the ninety year old victim, while the forensic evidence conclusively
proves that the semen found on the victim's clothing belonged to the
Appellant. These incriminating circumstances have been proved beyond
reasonable doubt. The Appellant alone was in a position to explain the
circumstances in which his semen came to be deposited on the victim's
clothing. Yet, instead of offering any explanation consistent with
innocence, he chose to deny the entire prosecution case. His silence in
relation to facts especially within his knowledge assumes significance
under Section 106 of the Indian Evidence Act, 1872. His complete failure
10
(2006) 12 SCC 254.
11
Macdonald Critchley (ed.), Butterworths Medical Dictionary 568 (Butterworth & Co. Ltd.,
Borough Green, Sevenoaks, Kent, Second Edition/ 1978).
Page 12 of 14
Crl. A. No.31 of 2024
(Chenga Tshering Bhutia vs. State of Sikkim)
to offer any explanation for these incriminating circumstances furnishes
an additional link in the chain of circumstances established by the
prosecution.
23. The proved circumstances unmistakably demonstrate that the
Appellant had embarked upon the commission of the offence and had
proceeded well beyond the stage of mere preparation. The evidence
leaves no reasonable doubt that the Appellant was attempting to commit
rape when ejaculation occurred during the course of the assault. In the
absence of any plausible explanation from the Appellant, the only
reasonable inference flowing from the proved facts is that the
ejaculation occurred in the course of an attempted act of penetration,
thereby constituting an attempt to commit rape. Herein, Section 106 of
Indian Evidence Act is invoked not to supply proof of the completed
offence, but to reinforce the inference arising from the prosecution's
established case.
24. In view of the foregoing observations, this Court is of the
considered view that the conviction of the Appellant under Section
376(2)(j) IPC, cannot be sustained and deserves to be set aside.
However, the evidence conclusively establishes the commission of the
offence of attempt to commit rape. Accordingly, the Appellant is
convicted under Section 511 read with Section 376 IPC. Section 511 IPC
prescribes punishment extending to one-half of the imprisonment
provided for the offence and having regard the gravity of the present
case, this Court is of the view that rigorous imprisonment for a period of
five (05) years would meet the ends of justice.
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(Chenga Tshering Bhutia vs. State of Sikkim)
25. Accordingly, the Appeal is partly allowed. The conviction of the
Appellant under Section 376(2)(j) IPC is set aside and is altered to a
conviction under Section 511 r/w Section 376 IPC for attempt to commit
rape. The sentence of imprisonment for life for the remainder of
his natural life is modified to rigorous imprisonment for a period of 5
(five) years. The sentence for Section 450 IPC is also modified to 5
(five) years. Both sentences shall run concurrently. The period of
detention already undergone by the Appellant during the pre-trial stage
shall be allowed to set off.
26. Accordingly, the present Criminal Appeal No. 31 of 2024 is
disposed of in the above terms.
27. Records of the learned Trial Court shall be remitted back.
28. The Registry is directed to forthwith communicate a copy of this
judgment to the learned Trial Court and the Jail authorities concerned
for necessary compliance.
(Bhaskar Raj Pradhan) (A. Muhamed Mustaque)
Judge Chief Justice
Approved for Reporting : Yes/No
arc
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