KRISHNA CHETTRI 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.20 of 2024
Appellant : Krishna Chettri
versus
Respondent : State of Sikkim
Appeal under Section 374(2) of the
Code of Criminal Procedure, 1973
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Appearance
Ms. K. D. Bhutia, Advocate (Legal Aid Counsel).
Mr. S. K. Chettri, Additional Public Prosecutor for the State-
Respondent.
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Date of hearing : 06-04-2026
Judgment reserved : 06-04-2026
Judgment pronounced & uploaded : 21-04-2026
JUDGMENT
Meenakshi Madan Rai, J.
1. An FIR was received from the Complainant PW-2 on 05-
09-2020, at 1000 hours, at the concerned Police Station, with the
information that his niece (brother’s daughter), aged five years, was
sexually molested by the Appellant, on the previous day, at around
1600 hours, near her house. A case was accordingly registered as
FIR No.39/2020, dated 05-09-2020, and endorsed to PW-14, the
Sub-Inspector at the Police Station, for investigation. On completion
of investigation, having prima facie found that, the Appellant, aged
about sixty years, had committed an offence of aggravated
penetrative sexual assault, on the minor victim, the Charge-Sheet
under Sections 6/10 of the Protection of Children from Sexual
Offences Act, 2012 (POCSO Act) was submitted against him.
2. The Learned Court of the Special Judge (POCSO Act),
Namchi, Sikkim, framed Charge against the Appellant under Section
Crl.A. No.20 of 2024 2
Krishna Chettri vs. State of Sikkim
3(b) punishable under Section 4 of the POCSO Act, for committing
penetrative sexual assault on the minor victim and under Section
5(m) punishable under Section 6 of the POCSO Act for sexual
assault on a child below twelve years. Charge was also framed
under Section 376(1) of the Indian Penal Code, 1860 (IPC), for the
offence of rape and Section 376(3) of the IPC for committing rape
on a woman under sixteen years of age.
3. The Appellant entered a plea of “not guilty” to the
Charges and the Prosecution thereupon examined fourteen
witnesses to prove its case beyond a reasonable doubt. On closure
of the Prosecution evidence, the Appellant was examined under
Section 313 of the Criminal Procedure Code, 1973 (Cr.P.C.),
pursuant to which, the Learned Trial Court on consideration of the
entire evidence on record, vide the impugned Judgment, dated 21-
06-2023, in Sessions Trial (POCSO) Case No.28 of 2020 ( State of
Sikkim vs. Krishna Chettri ), convicted the Appellant under Section
3(b) punishable under Section 4 of the POCSO Act and Section 5(m)
punishable under Section 6 of the POCSO Act. It was observed in
the impugned Judgment that, the Appellant was also convicted
under Sections 376(1) and 376(3) of the IPC respectively, however
in view of Section 42 of the POCSO Act, the Appellant having been
penalized under Section 6 of the POCSO Act, no penalty under
Sections 376(1) and 376(3) of the IPC were required. The Appellant
was sentenced to undergo twenty years imprisonment vide the
Order on Sentence dated 22-06-2023. Aggrieved with the
conviction and order on sentence, the Appellant assails both.
4. It was contended by Learned Counsel for the Appellant
that the fact of sexual assault is not being contested herein nor is
Crl.A. No.20 of 2024 3
Krishna Chettri vs. State of Sikkim
the age of the victim in contest. The only point with which the
Appellant is aggrieved is that there was no penetrative sexual
assault committed by the Appellant on the victim, and the medical
report also does not support such allegations of the Prosecution.
That, the Appellant ought to have been convicted and sentenced
only for the offences of sexual assault and not penetrative sexual
assault, hence the penalty be reduced to one under Section 8 of the
POCSO Act which mandates a penalty of three years imprisonment
instead of the twenty years handed out by the Learned Trial Court.
5. Learned Additional Public Prosecutor submits that the
Prosecution has duly proved its case beyond all reasonable doubt
and the impugned Judgment requires no intervention.
6. Having heard Learned Counsel for the parties, perused
the records and given due consideration to both, we find, in the first
instance, that, the victim PW-1 was aged about five years, when the
sexual assault took place and the Appellant aged about sixty years
age. While analysing the evidence of the victim, we are mindful of
the age of the victim, her articulation skills are therefore considered
with the sensitivity it deserves. The victim has stated that;
“ …………………………………………
One day, bajey ( accused ) carried me and took
me to the road and put his hand inside my clothes and
inserted his finger in my ‘susu garney’ ( vagina ) which
hurt me ( The witness gestured by pointing at her
vagina with her finger) . After that, he also pinned my
legs and smelled my ‘susu garney’ ( vagina ).
………………………………………… ”
(i) Despite her tender years, we notice that she has given
cogent evidence and has not dithered during her cross examination
from the facts stated above by her, which establish not only sexual
assault but penetrative sexual assault on her by the Appellant whom
she identified in the Court room.
Crl.A. No.20 of 2024 4
Krishna Chettri vs. State of Sikkim
(ii) Pausing here for a moment, we notice that the Appellant
was visible to the victim with no barriers in place. We direct the
Court to ensure that in all POCSO proceedings the Accused is placed
behind a one way mirror to avoid traumatising the victim during
trial.
(iii) The evidence of PW-2 indicates that he was told by PW-
3, his younger brother, that the wife of PW-3, i.e., PW-4, had
witnessed the Appellant sexually assaulting the victim. PW-2 and
PW-3 did not witness the incident. The evidence of PW-2 however
establishes that he had lodged the FIR Exbt 2 pertaining to the
incident on being told of it by PW-3. PW-3 corroborates the
evidence of PW-2 to the extent that he had told PW-2 of the incident
as PW-4, his wife (wife of PW-3) had witnessed it when the incident
occurred. The evidence of both PW-2 and PW-3 stood
unrelinquished during cross-examination.
(iv) According to PW-4 the eye-witness, when she was
returning home from a shop, on reaching the house of the minor
victim, she saw the victim running alone, near a landslide area,
situated near her house. She also saw that the Appellant present
there. As she neared the minor victim, she saw the Appellant carry
her and when she reached the place where the Appellant was, she
saw the Appellant lifting the minor victim upside down and fondling
her vagina with his fingers and sniffing it as well. She witnessed the
discomfort of the victim due to the acts of the Appellant.
Thereafter, he put her down. She also witnessed the Appellant
pulling the minor’s head towards his private part (penis). She
pulled the minor victim away from the Appellant, reprimanded him,
took hold of the hand of the victim and tried to take her home. The
Crl.A. No.20 of 2024 5
Krishna Chettri vs. State of Sikkim
Appellant again caught hold of the minor’s hand and pulled her
towards him. She reprimanded the Appellant for a second time and
took the minor victim home. She saw that the Appellant was
following them. She took the minor victim into the minor’s house
and remained there until she heard the voice of the brother of the
minor victim and thereafter allowed her to go inside. The cross-
examination did not decimate her examination-in-chief.
(v) PW-5 the victim’s father was told of the incident by PW-
4 who is his sister-in-law.
(vi) According to PW-6, he received a call from one KR alias
SMR stating that the Appellant had committed rape, later the Police
came and took the Appellant. The “Police personnel” who took the
Appellant was PW-7, a Village Guard working in the area. PW-9 was
the Officer who registered the case against the Appellant on
receiving the FIR.
(vii) PW-10 was the Doctor who examined the victim.
According to him, the victim was brought by a Head Constable, on
05-09-2020, at 1100 hours. He stated inter alia that;
“ …………………………………………
5. On examination, the patient was
conscious, oriented to time, place and person.
Upon
Her vital signs were within normal limits.
local examination of the external genitalia,
perineum (area between the external genitalia
and anus) and anus, reddish abrasion was
present on the right side upper aspect of inner
wall of labia minora and reddish tear was
present at 6 o' clock position in the anal orifice.
Two vaginal wash specimen was collected, one
was handed over to the police and the other one
was forwarded to STNM Pathology Department
for its psychological (sic)/pathological
examination.
6. Impression: On the basis of external
examination, fresh injury was present in the
vagina and anus.
Sexual violence cannot be
ruled out. Final opinion after RFSL report is
received. ……………………
[emphasis supplied]
………………………………………… ”
Crl.A. No.20 of 2024 6
Krishna Chettri vs. State of Sikkim
(viii) PW-10 advised primary treatment for the victim with
psycho social counseling. Exbt 7 was identified by PW-8 as the
requisition for medical examination of the victim, received by him,
from the Officer-in-Charge of the Police Station and Exbt 8 as the
medical report of the victim, prepared by him. On that day, he also
examined the Appellant and he took the nail clippings of the hand of
the Appellant. Although a prolix cross-examination appears to have
taken place with regard to the medical examination of the victim,
the injuries found by him on the victim, as per the medical report,
could not be demolished.
7. From the evidence that has been discussed hereinabove,
it appears that the Appellant had digitally sexually assaulted the
victim. The victim has stated as much in her evidence duly
corroborated by the evidence of PW-4. The medical evidence of the
victim prepared in Exbt 8 reveals that, the local examination of the
genitalia of the victim indicated a reddish abrasion on the right side
in upper aspect of inner wall of labia minora and reddish tear was
present at 6 o' clock position in the anal orifice. PW-4 had
witnessed the Appellant using his finger to fondle the private part of
the minor victim. PW-1 with clarity stated that the Appellant had
inserted his finger into her vagina which hurt her. Section 3(b) of
the POCSO Act provides as follows;
“3. Penetrative sexual assault —A person is
said to commit “penetrative sexual assault” if—
…………………………………………
(b) he inserts, to any extent, any
object or a part of the body, not
being the penis, into the vagina,
the urethra or anus of the child or
makes the child to do so with him
or any other person; or
………………………………………… ”
Crl.A. No.20 of 2024 7
Krishna Chettri vs. State of Sikkim
(i) From the evidence of PW-1 duly corroborated by PW-4
both of which are consistent and unwavering further supported by
the evidence of PW-10, we are of the considered view that no error
was committed by the Learned Trial Court in the impugned
Judgment for convicting the Appellant of the offence of penetrative
sexual assault under Section 3(b) punishable under Section 4 of the
POCSO Act.
(ii) Section 5 of the POCSO Act deals with aggravated
penetrative sexual assault and clause (m) lays down penetrative
sexual assault on a child below twelve years. The relevant provision
is extracted hereinbelow;
“5. Aggravated penetrative sexual assault —……
…………………………………………
(m) whoever commits penetrative
sexual assault on a child below
twelve years; or
………………………………………… ”
(iii) In the context of the above provision of law, the age of
the child is not disputed, hence the Prosecution evidence that she
was five years old at the time of the assault meets with no
hindrance. As the inner portion of the genital of the victim has been
injured it is evident that penetrative sexual assault, as already
discussed hereinabove, had been committed on her. It may, on pain
of repetition, be recapitulated here that, penetrative sexual assault
means that, the insertion of any object or part of the body, ought to
be to any extent into the vagina, urethra or anus of the child. It is
not necessary that there has to be full penetration.
8. In light of the foregoing discussions it stands to reason
that the Learned Trial Court was correct in having convicted and
sentenced the Appellant also under Section 5(m) of the POCSO Act.
Crl.A. No.20 of 2024 8
Krishna Chettri vs. State of Sikkim
9. The Appellant was further convicted under Sections
376(1) and 376(3) of the IPC. The Learned Trial Court in terms of
Section 42 of the POCSO Act did not pronounce penalty under these
two Sections. It may be mentioned here that Section 42 of the
POCSO Act provides for alternate punishment which reads as
follows;
“ 42. Alternate punishment .—Where an act or
omission constitutes an offence punishable under this
Act and also under sections 166A, 354A, 354B, 354C,
354D, 370, 370A, 375, 376, 376A, 376AB, 376B, 376C,
376D, 376DA, 376DB, 376E, section 509 of the Indian
Penal Code (45 of 1860) or section 67B of the
Information Technology Act, 2000 (21 of 2000)], then,
notwithstanding anything contained in any law for the
time being in force, the offender found guilty of such
offence shall be liable to punishment only under this
Act or under the Indian Penal Code as provides for
punishment which is greater in degree.
………………………………………… ”
10. No error emanates in the order of the Learned Trial
Court pertaining to the absence of penalty under under Sections
376(1) and 376(3) of the IPC in view of the law laid down in Section
42 of the POCSO Act.
11. Relevantly, we notice that the impugned Judgment,
dated 21-06-2023, concludes with the conviction of the Appellant
under Sections 3(b) and 5(m) of the POCSO Act and under Sections
376(1) and 376(2) of the IPC. However, in the impugned Order on
Sentence, dated 22-06-2023, the Learned Trial Court has, in
Paragraph 7, recorded only, as follows;
“ 7. Considering the above facts and circumstances,
the convict is sentenced to undergo Simple
Imprisonment for a period of twenty (20) years. ”
12. It is a legal imperative that under Section 354 of the
Cr.P.C. the Learned Trial Court should mention the Section under
which the imprisonment is imposed and whether the sentences run
concurrently, the Learned Trial Court has been remiss on this
Crl.A. No.20 of 2024 9
Krishna Chettri vs. State of Sikkim
aspect. However, as the Learned Trial Court has specified in the
impugned Judgment that the Appellant has been convicted under
the aforementioned Sections of law we conclude that the sentence
of imprisonment is for the offences under Section 3(b) punishable
under Section 4 of the POCSO Act and Section 5(m) punishable
under Section 6 of the POCSO Act. The imprisonment prescribed for
both the offences ( supra ) is for a period of not less than twenty
years each.
13. Consequently, t he sentence imposed under Section 3(b)
and Section 5(m) of the POCSO Act with penalty prescribed under
Section 4 and Section 6 of the POCSO Act respectively, is upheld
and ordered to run concurrently. The sentence is modified to the
above extent.
14. The Compensation of ₹ 6,00,000/- (Rupees six lakhs)
only, granted by the Learned Trial Court is also upheld.
15. Appeal disposed of accordingly.
16. Copy of this Judgment along with original records be
remitted forthwith to the Learned Trial Court for information.
17. A copy of this Judgment be made over to the
Appellant/Convict through the Jail Superintendent, Central Prison,
Rongyek and to the Jail Authority for information.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
21-04-2026 21-04-2026
Approved for reporting : Yes
ds