Jeet Hang Subba vs State of Sikkim
- Court
- High Court of Sikkim
THE HIGH COURT OF SIKKIM: GANGTOK
(Criminal Appeal 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. 25 of 2024
Jeet Hang Subba,
Aged about 27 years,
S/o Shri Buddha Bir Subba,
Permanent Resident of Thangling, Soreng District,
At present lodged at Rongyek Jail,
Gangtok, Sikkim
.... Appellant
versus
State of Sikkim .... Respondent
Appeal under Section 415(2) of the Bharatiya Nagarik Suraksha
Sanhita 2023 (BNSS)
[ against the impugned judgment & order on sentence dated 31.07.2024 passed by the
learned Special Judge (POCSO Act, 2012) Soreng, Sikkim in S.T. (POCSO) Case No. 01 of 2024
State of Sikkim vs. Jeet Hang Subba. ]
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Appearance:
Mr. Jorgay Namka, Senior Advocate (Legal Aid Counsel) and Ms.
Mingma Lhamu Sherpa, Advocate (Legal Aid Counsel) for the
Appellant.
Mr. Yadev Sharma, Additional Public Prosecutor for the State
Respondent.
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J U D G M E N T
Date of Hearing : 29.04.2026
Date of Judgment : 29.05.2026
Date on which uploaded: 29.05.2026
Bhaskar Raj Pradhan, J.
1. The present appeal assailing the impugned judgment of
conviction and order on sentence dated 31.07.2024 is
Crl. A. No. 25 of 2024
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Jeet Hang Subba vs. State of Sikkim
limited to the extent of the conviction under section 3(a) of
the Protection of Children from Sexual Offences Act, 2012
(POCSO Act). It is contended that the prosecution had failed
to prove that the victim was a child as defined under section
2(d) of the POCSO Act.
2. The investigation started with the lodging of the First
Information Report (FIR) (exhibit-P7) on 10.08.2022 before
the police station by Dr. Sharad Hang Subba (P.W.7) the
Medical Officer at the Public Health Center stating that the
victim came to the outpatient department with complaints of
vaginal bleeding, pain in the abdomen and generalised
weakness since seven days. He also reported that on
examination and investigation, her Urine Pregnancy Test
came positive and that she had been given an over-the-
counter drug by the appellant who was her boyfriend on
02.08.2022. The victim had also given history of having
sexual intercourse with the appellant on 13.06.2022 to the
first informant.
3. The investigation led to the filing of the charge sheet
alleging that it revealed that the appellant who was a
married person with a child had a love affair with the victim
and indulged in sexual intercourse consensually.
Subsequently, a supplementary charge sheet was also
submitted after receipt of the report from the Central
Crl. A. No. 25 of 2024
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Jeet Hang Subba vs. State of Sikkim
Forensic Science Laboratory (CFSL). Three charges were
framed against the appellant under section 5(j) (ii) of the
POCSO Act, section 376 (1) and section 315 of the Indian
Penal Code, 1860 (IPC).
4. Sixteen witnesses were examined by the prosecution in
support of their case. After the trial the appellant was
examined under section 313 of the Code of Criminal
Procedure, 1973 (Cr.P.C.) where he pleaded that he was not
aware of any of the circumstances against him and that he
had been falsely implicated.
5. The learned Special Judge was of the considered view
that the prosecution had failed to prove the charge under
section 315 of the IPC. However, the learned Special Judge
was of the opinion that the prosecution had proved that the
victim was a minor on the date of the incident i.e.
13.06.2022 and that he had committed penetrative sexual
assault upon her notwithstanding her consent. Therefore,
the appellant was also found guilty of the offence under
section 376(1) of the IPC.
6. Mr. Jorgay Namka, learned Senior Counsel for the
appellant submitted that the birth certificate (exhibit-P3)
which was issued after many years is doubtful considering
the deposition of the victim and her mother (P.W.2)
regarding her age. That this would suggest that the entry
Crl. A. No. 25 of 2024
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Jeet Hang Subba vs. State of Sikkim
made in the birth certificate (exhibit-P3) was false. If
therefore the prosecution failed to establish that the victim
was a child at the time of the consensual sexual intercourse
then the conviction under section 376(1) of the IPC is also
liable to be set aside.
7. The learned Additional Public Prosecutor on the other
hand submitted that the prosecution had been able to
establish that the victim was a child when the offence took
place.
8. The persons who would be aware of the victim’s age
examined by the prosecution are the victim herself, the
victim’s mother (P.W.2), the victim’s father (P.W.3) and the
victim’s sisters (P.W.4, P.W.5 and P.W.6.).
9. The victim who deposed on 01.11.2022 stated that she
was presently eighteen years old and that her actual date of
birth is 05.01.2004 however, her parents had reduced her
age and recorded it as 05.01.2005.
10. The victim’s mother (P.W.2) stated that the victim was
born in December, 2004 and that her birth certificate
(exhibit-P3) was obtained from the Primay Health Centre
(PHC). She identified both the birth certificate (exhibit-P3)
which records her date of birth as 05.01.2005 and her
immunization card (exhibit-P4).
Crl. A. No. 25 of 2024
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Jeet Hang Subba vs. State of Sikkim
11. The prosecution did not cross examine either the victim
or the victim’s mother (P.W.2) although their depositions
were against the prosecution case with regard to the victim’s
age.
12. The victim’s father (P.W.3) deposed that the victim was
born on 05.01.2005 at home and he had obtained the birth
certificate (exhibit-P3) from the PHC. He also identified the
birth certificate (exhibit-P3) obtained by him. When the
victim’s father (P.W.3) was cross examined by the appellant’s
counsel he deposed that he could not say whether the birth
certificate (exhibit-P3) was of the victim. He also did not
know when he had obtained the birth certificate (exhibit-P3)
from the PHC. He admitted that he did not know the exact
age of the victim but denied the assertion that her date of
birth was not 05.01.2005.
13. The victim’s sister (P.W.4) stated that she was
seventeen years old when she deposed on 14.12.2022.
During her cross examination by the appellant she conceded
that she was seventeen years old and the victim was seven
months older than her. She also admitted that her birthday
was 08.07.2005.
14. The victim’s sister (P.W.5) did not depose anything
about the victim’s age. The victim’s sister (P.W.6) during her
cross examination by the appellant admitted that the victim
Crl. A. No. 25 of 2024
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Jeet Hang Subba vs. State of Sikkim
was presently eighteen years old when she deposed on
14.12.2022.
15. The other set of prosecution witnesses produced for
establishing the age of the victim are the retired nurse
(P.W.8), the Head Master of Government Primary School
(P.W.9), P.W.10 and P.W.11 the seizure witnesses of the
birth certificate, P.W.12 the seizure witness for the
immunization card of the victim, P.W.13 the seizure witness
of the polio card of the victim and the Registrar, Births &
Deaths of the PHC (P.W.14).
16. P.W.10 and P.W.11 proved the seizure of the birth
certificate (exhibit-P3) from the victim’s house by the police.
17. The retired nurse (P.W.8) working at the relevant time
at the PHC as an auxiliary nurse and midwife (ANM) proved
the immunization card of the victim and her mother. She
deposed that those entries including the date of birth as
05.01.2005 were made by her.
18. P.W.12 proved the seizure of the immunization card
(exhibit-P4) and P.W.13 proved the seizure of the polio card
of the victim from her house.
19. The Head Master of Government Primary School
(P.W.9) examined the School admission register and deposed
that the date of birth of the victim was recorded as
05.01.2005 as furnished by her mother (P.W.2).
Crl. A. No. 25 of 2024
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Jeet Hang Subba vs. State of Sikkim
20. The Registrar, Births and Deaths (P.W.14) proved that
the birth certificate (exhibit-P3) was issued by him after
verification and that the original Births and Deaths Register
(exhibit-P15) contained an entry of the date of birth of the
victim as 05.01.2005 but was registered only on 05.04.2022.
He also stated that the informant regarding the date of birth
of the victim was the father (P.W.3).
21. Under normal circumstances, the birth certificate
which is a public document may have drawn a presumption
that the entry made therein is correct. However, we notice
that the birth certificate of the victim (exhibit P3) which
records her date of birth as 05.01.2005 was issued on
05.04.2022 only. Obviously the Registrar, Births and Deaths
(P.W.14) would have no personal knowledge about it and
had recorded it as informed by the victim’s father (P.W.3).
The victim’s father (P.W.3) however, conceded in cross
examination that he could not say the exact age of the victim
and when he obtained the birth certificate (exhibit-P3). The
victim’s mother (P.W.2) who would be the best person to
know the date of birth of the victim deposed that the victim
was born in December, 2004 in her examination-in-chief
itself. The victim went a step further and deposed that her
actual date of birth was 05.01.2004 but her parents had
reduced her age and recorded it as 05.01.2005. These
Crl. A. No. 25 of 2024
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Jeet Hang Subba vs. State of Sikkim
assertions regarding the falsity of the entries made in the
birth certificate, and the register of birth and deaths made
by the prosecution witnesses remains uncontroverted.
Therefore, the entries made in the birth certificate (exhibit-
P3) are questionable. When the prosecution sets out to
establish their case it is incumbent upon them to do so with
cogent evidence. When conflicting evidence is put forth by
the prosecution it is settled law that the one favouring the
accused person should be accepted.
22. Further, we notice that section 13 of the Registration of
Births and Deaths Act, 1969 deals with delayed registration
of births and deaths. Section 13 (3) of the Registration of
Births and Deaths Act, 1969 provides that any birth or
death which has not been registered within one year of its
occurrence shall be registered only on an order made by a
Magistrate of a First Class after verifying the correctness of
the birth or death and on payment of prescribed fee. There is
no evidence placed by the prosecution to suggest compliance
of this provision before the Registration of Births and Deaths
in the Register (exhibit-P15). Consequently, the presumption
of correctness of the public document i.e. the birth
certificate (exhibit-P3) cannot be made in its favour.
23. We are thus of the view that the prosecution had
unfortunately faltered in proving that the victim was in fact
Crl. A. No. 25 of 2024
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Jeet Hang Subba vs. State of Sikkim
a child as defined under section 2(d) of the POCSO Act.
Consequently, the conviction and sentence of the appellant
under section 3(a) of the POCSO Act is set aside.
24. The learned Special Judge was of the view that the
deposition of the victim that she had sexual intercourse with
the appellant on 13.06.2022 had not been demolished nor
denied by the appellant. As such the learned Special Judge
considered the evidence of the victim to convict and
sentence the appellant for the offence under section 376(1)
of the IPC. In such situation the victim must satisfy the test
of a sterling witness.
25. The victim deposed that on 13.06.2022 at around
10.30 pm she had gone to meet the appellant, her boyfriend,
a little further away from her house as they had decided to
meet there. It was during this meeting in the evening that
they had sexual intercourse after that they returned to their
respective homes. She also deposed that as a result of
sexual intercourse she did not have her period for two
months which led her to get a pregnancy done which
showed positive result. She further deposed that when she
informed the appellant about the pregnancy he got her
medicine for abortion through a compounder after
consuming which she started bleeding from her private part
and had a bad stomach ache. As she was not getting better
Crl. A. No. 25 of 2024
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Jeet Hang Subba vs. State of Sikkim
she asked her sister to take her to the PHC from where she
had been referred to District hospital, Namchi and
thereafter, to the District Hospital, Gangtok.
26. On a suggestion of the defence the victim admitted that
the accused had not forced her to have sexual intercourse
with him and that the sexual intercourse was consensual
although she was aware that he was married. She also
admitted that about a year before the incident she was
sexually abused by the elder brother of her brother-in-law.
27. The victim’s mother (P.W.2), the victim’s father (P.W.3),
the victim’s sisters (P.W.4, P.W.5 and P.W.6) confirmed
about the victim’s pregnancy. All of them identified the
appellant in Court. The victim’s sisters (P.W.5 and P.W.6)
confirmed that they had taken the victim to the PHC after
learning about her pregnancy and being informed that it was
the appellant who was responsible for it.
28. Dr. Sharad Hang Subba (P.W.7) the Medical Officer
posted at the PHC deposed that the victim had come to him
with complaint of vaginal bleeding, pain in the abdomen and
generalised weakness since seven days on 10.08.2022. He
deposed that on examination and investigation the victim
tested positive for pregnancy.
29. Dr. Chimi P. Theeng (P.W.15) the Obstetrician and
Gynaecologist at the STNM Hospital who examined the
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Jeet Hang Subba vs. State of Sikkim
victim on 12.08.2022 deposed that ultrasonography of the
victim showed moderate product of conception, which was
removed. She proved the medical report of the victim
(exhibit-P17) which also records the said fact.
30. The investigating officer (P.W.16) deposed that on
10.08.2022 he received a call information from the Medical
Officer (P.W.7) of the PHC about the victim and her
disclosure that she had sexual intercourse with the
appellant on 13.06.2023 due to which she had become
pregnant. The investigating officer (P.W.16) deposed that
thereafter, he arrested the appellant.
31. We are of the view that the victim’s deposition that she
had sexual intercourse with the appellant on 13.06.2022 is
corroborated by the deposition of Dr. Chimi P. Theeng
(P.W.15) who examined her on 12.08.2022 and found her
pregnant showing moderate product of conception. We also
notice that the suggestion made by the defence that the
victim had been sexually abused by the elder brother of her
brother-in-law a year prior to the incident of 13.06.2022 is
of no relevance as she would have already delivered a child
prior to 13.06.2022 if she had conceived through that
suggested intercourse.
32. Therefore, we are of the view that although the
prosecution could not establish that the fetal substance
Crl. A. No. 25 of 2024
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Jeet Hang Subba vs. State of Sikkim
extracted from the pregnant victim was that of the appellant,
the victim’s deposition about the sexual intercourse with the
appellant on 13.06.2022 is unblemished. However, as the
sexual intercourse between them was consensual and the
prosecution could not establish that the victim was a child
we are unable to confirm the conviction and sentence of the
appellant under section 376(1) of the IPC.
33. Consequently, the impugned judgment is set aside and
the appellant is acquitted of all charges, he shall be set free
if not required in any other cases.
34. Copy of this judgment be sent to the learned Special
Judge, Soreng along with the records for information.
35. Copy of this judgment shall also be forwarded to the
Jail Superintendent, Rongyek, Gangtok.
(Bhaskar Raj Pradhan) (Meenakshi Madan Rai)
Judge Judge
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