SUBASH GAZMER vs STATE OF SIKKIM
- Court
- High Court of Sikkim
THE HIGH COURT OF SIKKIM: GANGTOK
(Criminal Appellate Jurisdiction)
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DIVISION BENCH: THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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CRL. A. No. 35 of 2023
Subash Gazmer,
Aged about 33 years,
Son of late Chandra Bahadur Gazmer,
Resident of Dochum, Sirwani,
District: Gangtok, Sikkim.
At present: Rongyek Jail .... Appellant
versus
State of Sikkim .... Respondent
Appeal under Section 374(2) of the Code of Criminal Procedure, 1973
[ against the impugned judgment dated 24.08.2023 & order on sentence dated 28.08.2023
passed by the learned Special Judge (POCSO Act, 2012) at Gangok, in S.T. (POCSO) Case No.
37 of 2020 – State of Sikkim vs. Subash Gazmer ]
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Appearance:
Mr. Thupden Youngda, Advocate (Legal Aid Counsel) for the Appellant.
Mr. Yadev Sharma, Additional Public Prosecutor with Mr. Sujan
Sunwar, Assistant Public Prosecutor for the State Respondent.
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J U D G M E N T
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Date of Hearing : 13 May, 2026
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Date of Judgment : 29 May, 2026
th
Date on which uploaded: 29 May, 2026
Bhaskar Raj Pradhan, J.
This is an appeal by the convict who has been
found guilty under Sections 5(m) and 5(n) of the Protection
of Children from Sexual Offences Act, 2012 (POCSO Act) for
having committed aggravated penetrative sexual assault on
Crl. A. No. 35 of 2023
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Subash Gazmer vs. State of Sikkim
the victim who was three years and eight months old (i.e.,
below 12 years of age) and a relative.
2. The victim was medically examined on 13.7.2020
by the Medical Officer (PW-6) who noticed glaring signs of
rape committed on the victim which was noted by her in her
medical report (exhibit P-6/PW-6). The child victim’s hymen
was ruptured, blood stains were present and there was fresh
tear at 6’O clock position in the vagina. The Medical Officer
(PW-6) therefore opined that there was forceful sexual
intercourse upon the victim.
3. The learned Counsel for the appellant argued that
the Medical Officer (PW-6) has admitted that she had not
mentioned the exact age of tear on the body of the victim;
that the victim did not complain of pain; that such injury
can be caused by other causes such as rigorous exercises;
that the swelling on labia minora can be caused by allergy or
infection; and that she could not say with certainty that the
victim was subject of sexual assault without the report of
the forensic expert. The learned Counsel, therefore,
suggested that rape was not established by the prosecution.
4. The learned Additional Public Prosecutor
submitted that the impugned judgment is correct and calls
for no interference; that the prosecution has been able to
prove the case against the appellant beyond reasonable
Crl. A. No. 35 of 2023
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Subash Gazmer vs. State of Sikkim
doubt; that it has been proved that the victim was below 12
years of age; that the appellant had committed penetrative
sexual assault upon her; and that the victim was related to
the appellant.
5. The First Information Report (FIR)(exhibit P-4)
was lodged by the victim’s father (PW-3) on 13.7.2020 after
having learnt that the victim had been raped by the
appellant who was his relative. On the same day the victim
was medically examined and the medical report (exhibit P-
6/PW-6) prepared by the Medical Officer (PW-6). The
appellant was also arrested on the same day. The allegations
against the appellant from the time of the lodging of the FIR
till the trial have been consistent. There has never been any
doubt that it was the appellant who was accused of the
heinous act. The victim’s father (PW-3) alleged that the
appellant had raped his daughter in his house in the FIR
lodged on 13.7.2020 after he saw the victim returning home
with clothes in her hand. The victim named the appellant in
her statement recorded under Section 164 of the Code of
Criminal Procedure, 1973 (Cr.P.C.) on 16.07.2020 of having
raped her. The victim once again in her deposition named
him of having made her lie on the bed, taken his and her
pants off, climbed on top of her and touched her vagina from
outside.
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Subash Gazmer vs. State of Sikkim
6. The victim deposed that she was studying in the
first standard. The victim’s father (PW-3) deposed that her
date of birth was 25.10.2015 and she was five years old
when his deposition was recorded on 11.8.2022. The
victim’s mother (PW-4) also deposed that the victim was
born on 25.10.2015. She identified the victim’s birth
certificate (exhibit-3) exhibited in the original which records
her date of birth as 25.10.2015. The learned Special Judge
had no doubt in his mind that the victim’s date of birth was
25.10.2015 as per the birth certificate (exhibit-3) and
deposed by both her parents.
7. The learned Special Judge was of the opinion that
the medical report (exhibit P-6/PW-6) of the victim was a
vital piece of evidence as it was conducted on the same day
which show injuries on the victim’s genitals which
corresponded to forceful sexual intercourse. The learned
Special Judge was also of the opinion that although the
Medical Officer (PW-6) admitted that such injuries might be
caused due to reasons other than sexual assault but in the
present context, it could be none other than vaginal
penetration caused by the appellant. It was opined that the
medical evidence corresponds to the statement of the victim
making it evident that the appellant had indeed had
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Subash Gazmer vs. State of Sikkim
penetrated his penis into the victim’s vagina to an extent
that it caused injuries.
8. The victim’s father (PW-3) and the victim’s mother
(PW-4) both identified the appellant as their relative. The
victim’s mother deposed that when she had returned home
from work the victim informed her that the appellant had
told her that he would give her biscuits and taken her to his
house where he had opened their trousers and laid down on
top of her stomach. The victim’s parents thereafter lodged
the FIR (exhibit P-4/PW-3) scribed by the victim’s mother
and lodged by the victim’s father. Santa Bahadur Gurung
(PW-5) the Police Inspector posted at Singtam police station
having received the FIR (exhibit P-4) registered the case
against the appellant. The Investigating Officer (PW-9)
confirmed having arrested the appellant after the case was
endorsed to him.
9. We are unable to agree that the prosecution has
failed to establish that the victim was raped merely because
the Medical Officer (PW-6) admitted that she had not
indicated the age of the injury. The medical evidence is
glaring and clearly establishes rape upon the victim. The
minor contradictions and inconsistencies pointed out in the
evidence of the prosecution witnesses do not disturb the
core of their case. We also see no reason to doubt the
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Subash Gazmer vs. State of Sikkim
appellant’s identification by the victim as the person who
committed the heinous act upon her.
10. We, therefore, see no reason to disturb the
impugned judgment rendered by the learned Special Judge.
We, however, direct that the sentences under Sections 5(m)
and 5(n) of the POCSO Act shall run concurrently. The
appeal, therefore, fails and is rejected. A sum of
Rs.4,00,000/- recommended to be awarded to the victim as
compensation in terms of Schedule-II of the Sikkim
Compensation to Victims (or their Dependents) Scheme,
2021, stands confirmed.
11. Copy of this judgment along with the Trial Court
records be remitted forthwith.
(Bhaskar Raj Pradhan) (Meenakshi Madan Rai)
Judge Judge
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