Limbu Manger alias Raju Thapa vs State of Sikkim
- Court
- High Court of Sikkim
CNR No: SKHC01-000127-2025
THE HIGH COURT OF SIKKIM: GANGTOK
(Criminal Appellate Jurisdiction)
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SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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Criminal Appeal No. 24 of 2025
Limbu Manger @ Raju Thapa,
S/o Late xxxxx xxxxxx,
Age xxxxx,
Resident xxxxxx,
Pxxxxxx Sxxxx.
At present: Sikkim State Jail, Rongyek,
Gangtok.
….. Appellant
Versus
State of Sikkim. …..Respondent
Appeal under Section 415 (2) of the Bharatiya Nagarik
Suraksha Sanhita, 2023.
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Appearance:
Mr. D. K. Siwakoti, Advocate (Legal Aid Counsel) for the
Appellant.
Mr. Yadev Sharma, Additional Public Prosecutor for the
Respondent.
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Date of Hearing : 10.09.2026
Date of Judgment : 10.09.2026
Date on which uploaded : 12.09.2026
J U D G M E N T (ORAL)
Bhaskar Raj Pradhan, J.
1. The appellant has been convicted for commission of
“aggravated sexual assault” upon the survivor. This is a criminal
appeal against the impugned judgment dated 10.06.2025 and
order on sentence dated 16.06.2025 passed by the learned Special
Judge (POCSO) Act, 2012 in S.T. (POCSO) Case No.06 of 2024
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wherein the learned Special Judge has found the appellant guilty of
the offence under section 9(l) punishable under section 10 of the
Protection of Children from Sexual Offences Act, 2012 (POCSO
Act). Accordingly, he has been sentenced to undergo rigorous
imprisonment for a term of five years and fine of Rs.2000/- for the
said offence. The learned Special Judge has also directed that the
period of imprisonment already undergone by the appellant during
investigation and trial shall be set off against the sentence. A sum
of Rs.15,000/- has also been recommended to be paid to the
survivor as compensation under the Sikkim Compensation to
Victims (or their Dependents) Scheme, 2021.
Appellant’s Submissions
2. Mr. D.K. Siwakoti, learned counsel for the appellant raises
four submissions. Firstly, it is submitted that during the
examination of the survivor’s father (P.W.3) who had lodged the
First Information Report (FIR) (exhibit P-4/P.W.3) he deposed that
he had been informed by his wife (P.W.2) about the incident
stating that the appellant had come to their house and had
sexually assaulted their daughter-survivor (P.W.1). The mother
(P.W.2) while describing the alleged offence to her husband had
stated “jew ma hath lagaya cha” which translated would read as
“touched her body”. The learned counsel submits that however in
the depositions of the survivor (P.W.1) as well as the mother
(P.W.2) the allegation is of touching the survivor’s breasts. It is
therefore, submitted that this is a discrepancy which ought to have
been noted by the learned Special Court.
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3. The second submission is on whether the offence would
amount to “aggravated sexual assault” or “sexual assault” as in the
FIR (exhibit P-4/P.W.3) lodged by the survivor’s father (P.W.3), it
was stated that the appellant had touched her breasts but there
was no mention of having done so repeatedly. To strengthen this
argument the learned counsel also takes me to the deposition of
the survivor’s mother (P.W.2) where she has deposed that the
survivor had informed her that the appellant had fondled her
breasts in their kitchen but had not mentioned the fact that it was
done repeatedly. He also draws my attention to the examination of
Dr. Sidhant Basnett, the Medical Officer (P.W.10) who also deposed
that on local examination the survivor had revealed that the
appellant had forcefully touched/fondled with her breasts.
4. The third submission raised by the learned counsel is that
there is discrepancy in the exact time of the alleged incident in as
much as the survivor deposed that it happened at 04.00 p.m., the
mother (P.W.2) deposed that it was 03.00 p.m. and the father
(P.W.3) deposed that it was 04.00 p.m.
5. Finally, he submits that the seizure of the birth certificate
(exhibit P-2/P.W.1) has not been proved by the prosecution.
Prosecutor’s submissions
6. Per contra, the learned Additional Public Prosecutor submits
that the prosecution has been able to establish beyond reasonable
doubt that the appellant had committed “aggravated sexual
assault” upon the survivor and therefore, the learned Special Judge
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had correctly convicted and sentenced him under the said
provisions of law.
Consideration
7. The essence of the POCSO Act is to provide a comprehensive,
gender neutral and child friendly legal framework for protecting
children below 18 years of age from sexual assault, sexual
harassment and sexual exploitation, while ensuring timely
reporting, investigation, speedy trial and appropriate punishment
of the offenders.
8. The conviction of the appellant is for the offence of
“aggravates sexual assault” as defined in section 9 (l) and
punishable under section 10 of the POCSO Act.
Ingredients of Sexual Assault
9. Section 7 of the POCSO Act defines “sexual assault”.
Whoever, with sexual intent touches the vagina, penis, anus or
breasts of the child or makes the child touched the vagina, penis,
anus or breasts of such person or any other person, or does any
act with “sexual intent” which involves physical contact without
penetration is said to commit “sexual assault”.
10. Therefore, the crucial ingredient of the offence of “sexual
assault” is the “touch” coupled with “sexual intent”.
11. The survivor deposed that on 14.12.2023 while she was
eating her food the appellant came from behind asking her to be
careful of the stove/heater wire and thereafter, touched her
breasts from behind and pressed it. The survivor was initially
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shocked but when she talked in a louder voice he stepped back a
little. However, when she continued eating, he came and pressed
her breasts with his hands.
12. The narration of the incident by the accused is not cryptic but
contains a fair amount of detail in her deposition recorded on
12.04.2024 which has a ring of truth. Prior to that, on 27.12.2023
the survivor had narrated and given the same account of the
incident before the learned Judicial Magistrate when she was
examined under section 164 of the Code of Criminal Procedure,
1973 (Cr.P.C.).
Sexual Intent
13. The repeated act of the appellant of touching the survivor’s
breasts after a gap between the first incident and the second
reflects his “sexual intent”. “Sexual intent” may be gathered from
the actions of the accused during the time of the incident. The
repeated act of the appellant of touching the survivor’s breasts
when on the first occasion she had expressed her displeasure to
him clearly establishes that it was done “intentionally”.
Unfortunately, some male gaze still suffers from mental aberrations
and fantasizes a girl’s breasts as a sexual object. Therefore, the
POCSO Act makes the “touch” of a child’s breasts with “sexual
intent”, an offence. The appellant clearly suffered from it as well.
According to the survivor the appellant thereafter offered the
survivor Rs.100/-. This also reflects his intent.
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Aggravated Sexual Assault
14. When a person commits “sexual assault” on a child more
than once or repeatedly it amounts to “aggravated sexual assault.”
The two separate acts of touching the survivor’s breasts by the
appellant during the same occurrence establish the ingredients of
section 9(l) of the POCSO Act which the prosecution has been able
to prove by the evidence of the survivor herself. The testimony of
the survivor of repeated sexual assault by the appellant on her
establishes the commission of “aggravated sexual assault.”
Presumption under Section 30 of the POCSO Act
15. The foundational facts having been cogently proved by the
prosecution through the testimony of the survivor, the presumption
under section 30 of the POCSO Act i.e. the existence of his mental
state would also apply against the appellant who had no evidence
to “prove the fact that he had no such mental state with respect to
the act charged.” The appellant did not lead any evidence to prove
that the mental state did not exist and his act was innocent.
The Corroborative Evidence
16. According to the prosecution’s case, the incident took place
in the house of the survivor when both her parents were not at
home on 14.12.2023. When the survivor’s mother (P.W.2) returned
home later, the survivor informed her about it. The survivor’s
mother (P.W.2) thereafter informed the survivor’s father (P.W.3)
who was also away. Subsequently, on the next date, the father
(P.W.3) lodged the FIR (exhibit P-4/P.W.3).
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17. The disclosure was immediate and corroborated by the
testimony of the persons to whom the disclosure was made. The
survivor’s deposition was cogent and the defence could not destroy
it. The defence did not question the victim on any other aspect,
which would create a doubt in the mind of the learned Special
Judge to discard her testimony. The survivor’s testimony before the
Court withstood detailed cross-examination by the defence could
not be doubted.
18. On 15.12.2022 the survivor was medically examined by Dr.
Sidhant Basnett (P.W.10) who also deposed that she had been
brought for medical examination with a history of sexual assault by
the appellant. Although Dr. Sidhant Basnett (P.W.10) did not notice
any external injuries on the survivor’s body, the fact that the
survivor had also disclosed to him that she was sexually assaulted
by the appellant further corroborates the survivor’s deposition.
19 . Sun Tshering Lepcha (P.W.11) posted at the police station as
officer in charge was the one who received the written report from
the survivor’s father (P.W.3) and registered the case against the
appellant. These facts have been proved by the prosecution by
leading reliable evidence. These facts also corroborate the story of
the survivor, which assures this Court that her deposition was
truthful.
The Challenges for the Prosecution and the Court
20. The POCSO Act was enacted to protect children from offences
of sexual assault, sexual harassment and pornography. The
learned Special Judge therefore must ensure that the children are
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protected. When the allegation is of offence of “sexual assault” it is
always a formidable task for the prosecution to establish it with
clinching evidence beyond the oral statement of the material
witnesses, primary amongst them the deposition of the survivor.
The Court is therefore always faced with this task and sometimes it
becomes difficult for it to take a call either ways.
The Prosecution must establish their case with cogent
evidence
21. In such cases it would be obvious and also appropriate for
the prosecution to establish their case from the child’s testimony
which is substantive evidence. If the learned Special Court finds
the testimony reliable, consistent and trustworthy, a conviction can
potentially rest on it even without medical corroboration. The
child’s earlier statement made to a parent, a teacher, a police
officer, a Magistrate or anyone who would be natural witness
available close to her would be relevant. Circumstantial or
corroborative evidence by those present when the incident
occurred or what happened immediately afterwards would be
required to be examined to further strengthen the testimony of the
child. The Court examining a case of alleged “sexual assault” or
“aggravated sexual assault” must seek to answer the questions as
to whether the touching actually occurred, was it intentional and
was it accompanied by “sexual intent”. The child’s testimony
should be treated with appropriate respect and still tested
judicially.
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Establishing a case through the evidence of a sterling
witness
22. The Supreme Court has laid down a golden principle of
establishing a case through the evidence of a “ sterling witness”.
1
23. In Rai Sandeep vs. State (NCT of Delhi) the Supreme
Court held:
“22 In our considered opinion, the “sterling witness”
should be of a very high quality and calibre whose
version should, therefore, be unassailable. The court
considering the version of such witness should be in a
position to accept it for its face value without any
hesitation. To test the quality of such a witness, the
status of the witness would be immaterial and what
would be relevant is the truthfulness of the statement
made by such a witness. What would be more relevant
would be the consistency of the statement right from
the starting point till the end, namely, at the time when
the witness makes the initial statement and ultimately
before the court. It should be natural and consistent
with the case of the prosecution qua the accused.
There should not be any prevarication in the version of
such a witness. The witness should be in a position to
withstand the cross-examination of any length and
howsoever strenuous it may be and under no
circumstance should give room for any doubt as to the
factum of the occurrence, the persons involved, as well
as the sequence of it. Such a version should have co-
relation with each and every one of other supporting
material such as the recoveries made, the weapons
used, the manner of offence committed, the scientific
evidence and the expert opinion. The said version
should consistently match with the version of every
other witness. It can even be stated that it should be
akin to the test applied in the case of circumstantial
evidence where there should not be any missing link in
the chain of circumstances to hold the accused guilty of
the offence alleged against him. Only if the version of
such a witness qualifies the above test as well as all
other such similar tests to be applied, can it be held
1
(2012) 8 SCC 21
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that such a witness can be called as a “sterling witness”
whose version can be accepted by the court without
any corroboration and based on which the guilty can be
punished. To be more precise, the version of the said
witness on the core spectrum of the crime should
remain intact while all other attendant materials,
namely, oral, documentary and material objects should
match the said version in material particulars in order
to enable the court trying the offence to rely on the
core version to sieve the other supporting materials for
holding the offender guilty of the charge alleged. ”
24. In the present case the survivor’s deposition was tested
before the learned Special Judge which stood firm, cogent and
consistent. The narration of the account of the incident was
internally consistent. There was no material improvement or
contradiction. The account was consistent with contemporaneous
conduct and surrounding circumstances. The minor discrepancies
highlighted by the learned counsel for the appellant were merely
natural variations and did not dampen the core prosecution charge.
Minor discrepancies
25. The FIR (exhibit P-4/P.W.3) dated 15.12.2023 was lodged by
the father (P.W.3) of the survivor who was a mason and who also
did not know the contents of the FIR (exhibit P-4/P.W.3) which
according to him was prepared by the police and narrated to him.
26. The FIR lodged by the father (P.W.3) propelled the
investigation and during the course of the investigation the
survivor was examined by the learned Judicial Magistrate under
section 164 Cr.P.C. wherein she informed about the incident that
transpired on 14.12.2023. On 12.03.2024 before the learned
Special Judge the survivor deposed exactly what she had stated to
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the learned Judicial Magistrate in her 164 Cr.P.C. statement which
she identified in Court as her statement. The deposition of the
survivor is therefore, consistent.
27 . I have perused the cross-examinations of the survivor as well
as her father (P.W.3) and her mother (P.W.2). The discrepancies
pointed out by the learned counsel for the appellant, in the first
place, were not put to any of the prosecution witnesses let alone
the survivor or her parents. Save a denial, there is no effective
cross-examination. It has been consistently held by the Supreme
Court as well as this Court that FIR is not an encyclopaedia. If the
complaint makes out a cognizable offence, the police are duty
bound to register the FIR and investigate the case.
28. The father (P.W.3) of the survivor has reported about the
incident as informed to him by the mother (P.W.2) who was also
informed by the survivor. As both of them were not available at the
time of the incident due to their own circumstances, certain
amount of minor discrepancies would be natural.
29. While examining the evidence of witnesses what is essential
is whether the prosecution has been able to establish the
ingredients of the offence alleged. Variance in versions of the
witnesses which completely destroy prosecution’s case must be
taken cognizance of. However, minor discrepancies which are
attributable to various factors, if it does not affect the core of the
prosecution’s case, can be ignored, lest truth gets submerged in
these trifles. Moreso, when the prosecution has established the
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sequence of events, which led to the filing of the FIR (exhibit P-
4/P.W.3) the very next day of the incident.
Proving birth certificate
30. The birth certificate issued by a competent authority is a
public document and it may be proved in the manner public
documents are proved in Courts.
31. The original birth certificate (exhibit P-2/P.W.1) of the
survivor has been brought on record and placed for examination
before the learned Special Judge. The birth certificate (exhibit P-
2/P.W.1) is under the signature of the Registrar of Births and
Deaths (P.W.4). It records her date of birth as 20.01.2008 and the
date of registration is the very next day i.e. 21.01.2008. It was
issued on 14.03.2008.
32. The birth certificate (exhibit P-2/P.W.1) was identified by the
survivor and both the parents. According to the survivor’s father
(P.W.3) the police had seized it from his possession during the
investigation. P.W.6 and P.W.7 are the seizure witnesses.
33. P.W.6 deposed that he had stood as a witness to the seizure
of birth certificate (exhibit P-2/P.W.1) of the child and affixed his
signature on the seizure memo (exhibit P-9/P.W.6) as well as the
birth certificate (exhibit P-2/P.W.1). During cross-examination he
admitted that he had not personally gone through the contents of
the birth certificate; he did not know the name of the person in
whose name the birth certificate was issued; he did not see the
date of birth of the person concerned; and he had not gone
through the contents of the seizure memo prepared by police. He
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admitted that the police prepared the seizure memo in which he
had accordingly signed.
34. P.W.7 also identified the seizure memo (exhibit P-9/P.W.6) in
which he had affixed his signature, after the birth certificate
(exhibit P-2/P.W.1) of the survivor was seized by the police in his
presence. In cross-examination he admitted that he did not
personally go through the contents of the birth certificate; that the
contents of the seizure memo (exhibit P-9/P.W.6) was not read
over to him, and he didn’t know why it was filled and when he had
signed on it. He also admitted that he did not see when the father
(P.W.3) of the child handed over the birth certificate (exhibit P-
2/P.W.1) to the police and it was through the police he learned that
the birth certificate (exhibit P-2/P.W.1) was of the survivor.
35. The seizure was made under the provision of Section 102 of
the Cr.P.C. which does not require the seizure to be done in the
presence of a witness. It’s merely done as a matter of caution.
36. The Investigating Officer (P.W.12) has clearly deposed that
the original birth certificate (exhibit P-2/P.W.1) of the survivor was
seized from the possession of the father (P.W.3) of the survivor in
the presence of the independent witnesses.
37. The Investigating Officer (P.W.12) has also identified the
seizure memo and signatures of the two witnesses as well as his
official seal and signature. He further deposes that he had verified
the contents of the birth certificate (exhibit P-2/P.W.1) from the
issuing authority and in fact the date of birth was 20.01.2008.
Except for a bald denial, there is no cross examination on what the
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Investigating Officer (P.W.12) has categorically stated about the
seizure of the birth certificate (exhibit P-2/P.W.1).
38. The contents of the birth certificate (exhibit P-2/P.W.1) has
also been corroborated by the oral evidence of the survivor as well
as her parents. The survivor has deposed that she was 16 years
old at the time of her deposition and that she was born on
20.01.2008. The survivor’s parents also deposed on the same date
and confirmed that the survivor was born on 20.01.2008 and she
was currently 16 years of age.
39. I am satisfied that the birth certificate (exhibit P-2/P.W.1)
was of the survivor and since it is a public document it carries a
presumption of correctness unless rebutted. The parents of the
survivor who are the best witnesses regarding the birth of the
survivor have correctly deposed the date of birth and identified the
birth certificate (exhibit P-2/P.W.1).
40. Therefore, there is no reason for this Court to doubt that the
survivor was in fact a child when the incident occurred on
14.12.2023 which has been proved by the prosecution.
41. Besides the evidence of the parents as well as the survivor,
the deposition of the Registrar of Births and Deaths, STNM
Hospital, (P.W.4); the Head Master of the Government Secondary
School (P.W.5) where the survivor was a student earlier; Dr.
Chintamani Sharma, Additional Medical Superintendent-II-cum-
Registrar of Births and Deaths (P.W.9); along with the school
admission register (exhibit P-11/P.W.8); relevant portion of the
school admission register (exhibit P-8/P.W.5); the relevant page of
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Live Birth Register (exhibit P-6/P.W.4) and the certified copy of the
cover of the Live Birth Register (exhibit P-7/P.W.4) also confirms
the correctness of the date of birth of the survivor in the records
maintained by the school as well as the Registrar of Births and
Deaths (P.W.4).
Confirmation of the identity of the appellant
42. The appellant was known to the survivor as well as her
parents. They identified him in Court. There is no doubt about his
identity as he was a co-villager and known to them as well as other
co-villager who were prosecution witnesses.
Appropriate sentencing
43. The learned Special Court must ensure that a convict is
appropriately sentenced for the crime committed. The learned
Special Judge has found the appellant guilty of having committed
“aggravated sexual assault” as defined in section 9(l) of the POCSO
Act. I do not find any reason to disagree with the conviction and
confirm it. Section 10 of the POCSO Act, 2012 provides for
punishment of a term which shall not be less than five years but
which may extend to seven years for the offence of “aggravated
sexual assault”. The mandate of section 10 therefore does not
permit the learned Special Court to sentence the appellant for a
term less than the minimum prescribed i.e. five years. It is noticed
that the learned Special Court has sentenced the appellant to the
minimum as prescribed by the law. Therefore, I am unable to heed
to the request made by the learned counsel for the appellant to
reduce his sentence considering other factors which were in any
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case not brought on record before the Court including an assertion
that he has a child who is fifteen years old and a student of Class
IX and therefore, the appellant’s absence may cause difficulty to
his family.
44. The appeal is therefore, dismissed. The impugned judgement
dated 10.06.2025 and order on sentence dated 16.06.2025 are
upheld. The compensation recommended to the survivor in terms
of the Schedule-I to the Sikkim Compensation to Victims (or their
Dependents) Scheme, 2021 is confirmed. The Trial Court Records
be remitted to the Court of the learned Special Judge, Pakyong.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes
to/