RINZING SHERPA 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. 9 of 2024
Rinzing Sherpa,
Aged about 29 years,
S/o Late Lakpa Tshering Sherpa,
Resident of Middle Tokdey,
Lingmoo, South Sikkim,
At present Rongyek Jail,
Gangtok,
Sikkim. .... Appellant
versus
State of Sikkim .... Respondent
Appeal under Section 374(2) of the Code of Criminal Procedure, 1973
[ against the judgment dated 21.02.2024 & order on sentence dated 27.02.2024 passed by
the learned Judge (Fast Track), South & West at Gyalshing in S.T. (F.T.) Case No. 04 of 2022 –
State of Sikkim vs. Rinzing Sherpa ]
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Appearance:
Ms Gita Bista, Advocate (Legal Aid Counsel) for the Appellant.
Mr. Yadev Sharma, Additional Public Prosecutor, for the Respondent.
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J U D G M E N T
th
Date of Hearing : 8 April, 2026
th
Date of Judgment : 29 April, 2026
th
Date on which uploaded: 29 April, 2026
Bhaskar Raj Pradhan, J.
In the present appeal, we are examining a
judgment of conviction and sentence under Section 376(2)(l)
of the Indian Penal Code, 1860 (IPC) rendered by the learned
Sessions Judge, Fast Track Court (the learned Sessions
Judge) after a trial.
Crl. A. No. 9 of 2024
2
Rinzing Sherpa vs. State of Sikkim
2. The victim (PW-4) is a woman with intellectual or
development disability and cerebral palsy.
3. She was identified as a person suffering from 70%
“mental retardation” with permanent multiple disabilities.
Section 2(r) of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act,
1995 (the Disabilities Act) defines “mental retardation” to
mean a condition of arrested or incomplete development of
mind of a person which is specially characterised by
subnormality of intelligence. The victim was also suffering
from cerebral palsy. “Cerebral Palsy” has been defined in
Section 2(e) of the Disabilities Act to mean a group of non-
progressive conditions of a person characterised by
abnormal motor control posture resulting from brain insult
or injuries occurring in the pre-natal, peri-natal or infant
period of development.
4. The issues raised by the learned counsel for the
appellant concerns how we should understand and
appreciate statements of such victims of sexual offences and
the corroborating evidences.
Crl. A. No. 9 of 2024
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Rinzing Sherpa vs. State of Sikkim
The appellant’s case
5. The learned counsel for the appellant contended
that the victim had not named the appellant and had alleged
that the assault on her was at home and not at the
playground. She contends that the medical opinion does not
establish the appellant as the aggressor; that the evidence of
the victim’s niece (PW-5) is contradicted by her admission in
cross-examination; and that no injury was seen on the body
of the appellant during his medical examination. She relied
upon two judgments of the Supreme Court, which we will
now examine.
1
6. In Raju & Others vs. State of Madhya Pradesh , the
Supreme Court was examining the testimony of the
prosecutrix in a gang rape case where it held that though
the testimony is believable on a par with an injured witness,
it cannot always be presumed to be the gospel truth.
Santosh Prasad alias Santosh Kumar vs. State of
7. In
2
Bihar , the Supreme Court was examining a case of a
conviction relying solely upon the deposition of the
prosecutrix when material contradiction was present in her
1
(2008) 15 SCC 133
2
(2020) 3 SCC 443
Crl. A. No. 9 of 2024
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Rinzing Sherpa vs. State of Sikkim
deposition and neither independent witness nor medical
evidence supported the prosecution case.
8. We are of the view that the facts of the present
case are distinguishable to the facts of the above cases as
discussed hereinafter.
The prosecution’s case
9. The learned Additional Public Prosecutor relied
upon the evidence of the victim’s niece (PW-5) who was an
eyewitness, victim’s mother (PW-1), victim’s sister-in-law
(PW-2) also the mother of PW-5, and PW-5’s cousin (PW-7) to
establish the prosecution case. He submitted that the
medical evidence confirms the prosecution story; that as per
the RFSL Report human blood was detected in the vaginal
swab as well as the vaginal wash of the victim. Thus, he
submits that the RFSL Report confirmed the prosecution
story as well.
3
10. In Mange vs. State of Haryana relied upon by the
learned Additional Public Prosecutor, the Supreme Court
held that conviction can be based on the sole testimony of
an eyewitness though in this case his testimony stood
corroborrated by the blood stains and the clothes of the
3
(1979) 4 SCC 349
Crl. A. No. 9 of 2024
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Rinzing Sherpa vs. State of Sikkim
“dumb and deaf” prosecutrix and the medical evidence. The
Supreme Court held that the medical examinations finding
of torn hymen and bruises was sufficient to hold the
accused guilty.
The facts
11. On 02.09.2022, the victim’s sister-in-law lodged
an FIR (exhibit P-2/PW-2) stating that the victim who was
25 years old and “mentally unstable since birth” was
witnessed by her daughter (PW-5) being sexually assaulted
(raped) by the appellant who was 27 years old.
12. After investigation, the Investigating Officer (PW-
12) filed the final report under Section 173 of the Code of
Criminal Procedure, 1973 (Cr.P.C.) alleging commission of
offence under Section 376(2)(l) IPC by the appellant.
13. On 06.03.2023, the learned Special Judge framed
a singular charge against the appellant that in the evening
of 02.09.2022 he had raped the victim who was a “specially
abled” woman (hearing and speech impaired) at the school
ground thereby committing an offence under Section
376(2)(l) of the IPC. The appellant pleaded not guilty and
claimed trial.
Crl. A. No. 9 of 2024
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Rinzing Sherpa vs. State of Sikkim
14. During the trial, the prosecution examined 12
witnesses including the Investigating Officer. The appellant
was thereafter, examined under Section 313 of the Cr.P.C.
where he admitted that he had worked in the victim’s house;
stated that the victim was not completely “disabled” and
could perform household chores.
The Disability Certificate
15. Dr. C.S. Sharma (PW-11) who had issued the
Disability Certificate (exhibit P1/PW1) of the victim
confirmed that she had multiple disabilities with “mental
retardation” and cerebral palsy. The Disability Certificate
proved by the victim’s mother and Dr. C.S. Sharma states
that the victim suffered from mental retardation with
multiple disabilities to the extent of 70%. Sumit Dahal (PW-
3) - the Special Educator, who had attended the Court
during the recording of the victim’s statement by the
Magistrate found that she had “speech and mild intellectual
disability” but was able to communicate and that someone
had physically abused her on two occassions. The victim’s
mother (PW-1), the victim’s sister-in-law (PW-2), the victim’s
niece (PW-5) and PW-5’s cousin (PW-7) confirmed that the
victim was differently abled. We do not have any doubt that
Crl. A. No. 9 of 2024
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Rinzing Sherpa vs. State of Sikkim
the victim was suffering from “mental disability” as
envisaged under Section 376(2)(l) of the IPC.
Consideration
4
16. In Patan Jamal Vali vs. State of A.P. , the Supreme
Court held that the testimony of a prosecutrix with a
disability, or of a disabled witness for that matter, cannot be
considered weak or inferior only because such an individual
interacts with the world in a different manner viz-a-viz their
abled-bodied counterparts. As long as the testimony of such
a witness otherwise meets the criteria for inspiring judicial
confidence, it is entitled to full legal weight.
17. The victim was examined as a witness. She
deposed that she knew the person who touched her and her
niece (PW-5) had witnessed it. The victim who could not
answer what her name was, when asked directly who is
Rxxx (victim’s name redacted), she answered saying that it
was her. Although, she correctly identified her mother and
sister-in-law, she remained silent when asked whether she
knew “Rinzing Sherpa” (the appellant). The victim was asked
what happened to her or what was done to her. She showed
her breasts and pointed to her crotch and said that her
4
(2021) 16 SCC 225
Crl. A. No. 9 of 2024
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Rinzing Sherpa vs. State of Sikkim
breasts and vagina/crotch were fondled. She was then
asked what else happened. The victim remained silent. She
stated that it happened at home when asked where it
happened. She stated that she knew the person who
touched her and that he had touched her twice. When the
victim was asked if she would be able to identify him if she
saw him today, she smiled. She was then asked if anybody
had seen her being touched, she said yes and identified PW-
5 as the daughter of her sister-in-law who had seen them.
She further said she could identify the person on the screen
but remained silent when asked to state his name or inform
the Court about his profession.
18. During her cross-examination, the defence could
not make her admit that she had made a false statement
when she deposed that her breasts and crotch were fondled
and that her neice (PW-5) had seen the incident.
19. The learned counsel for the appellant highlights
these silences of the victim and suggest that she had failed
to identify the appellant or allege that he had raped her. We
notice that the deposition of the victim was recorded when
she could see the appellant on the screen. Although, the
victim did not name or point out the appellant as the
Crl. A. No. 9 of 2024
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Rinzing Sherpa vs. State of Sikkim
perpetrator, the victim clearly deposed that the incident was
witnessed by PW-5 and she knew the person on the screen.
The victim was also clear that she was sexually abused.
20. To appreciate the victim’s deposition and her
silences, we examined the prosecution evidence including
the medical and forensic evidence, which confirms rape.
Medical Evidence
21. Dr. Sonica Rai (PW-10) who was posted as a
Medical Officer at the relevant time at the District Hospital
deposed that on 03.09.2022, she had examined the victim
with a history of sexual assault at her residence. On her
vaginal examination, Dr. Sonica Rai noted “ fresh cut over
inner labia, bleeding present, hymen torn, swollen labia
majora with tenderness …. ” Her deposition in Court, which
is based on her report (exhibit P-12/PW-10), also confirms
it. During cross-examination, Dr. Sonica Rai confirmed that
the bleeding that she had seen on the victim’s private part
was not menstrual bleeding. It is quite clear that the victim
had been sexually abused due to which she had suffered the
injuries as confirmed by Dr. Sonica Rai.
Forensic Evidence
22. The forensic evidence also confirms the
prosecution story of rape of the victim. The RFSL report
Crl. A. No. 9 of 2024
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Rinzing Sherpa vs. State of Sikkim
(exhibit P-18/PW-12) was admitted as evidence through the
Investigating Officer without any protest from the defence.
The defence did not file any application to summon the
expert for cross-examination. The RFSL report qualifies as a
report prepared under Section 293 Cr.P.C. and therefore
admissible regardless of the fact that the expert was not
5
examined. [ see Santosh vs. State (NCT of Delhi ) ] The RFSL report
confirms having detected human blood on the vaginal swab
and wash of the victim. Thus, the forensic evidence
corroborates the medical evidence.
23. We are, therefore, certain that when the victim
complained to the Court about her breasts and crotch being
fondled, what she was actually indicating was the act of rape
committed on her. Her inability or reluctance to identify the
appellant as the perpetrator of the crime could be because of
various reasons including that the appellant was on the
screen when she was in the witness box facing him.
Therefore, the victim’s deposition does inspire judicial
confidence as she had clearly stated that she was sexually
abused and we find corroboration from the medical and
forensic evidence.
5
(2023) 19 SCC 321
Crl. A. No. 9 of 2024
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Rinzing Sherpa vs. State of Sikkim
24. As the learned Sessions Judge has opined that
the appellant was the one who committed rape upon the
victim and her niece (PW-5) was an eyewitness, we need to
re-examine the evidence to ensure that he was not wrongly
convicted and sentenced.
The appellant’s presence at the place of occurrence
25. The evidence of the victim’s niece (PW-5) is
detailed and descriptive. She stated the circumstances
under which she was near the place of occurrence when the
incident happened. The victim’s niece confirmed seeing the
appellant in a drunken state near her grandfather’s house.
She heard him ask the victim to get him alcohol and saw
him handing over an empty Pepsi bottle for it. She saw the
victim leave with the bottle and the appellant follow her. She
also deposed that this made her uncomfortable and
therefore, she followed them. To this extent, the deposition
of the victim’s niece is unquestionable having withstood the
cross-examination.
26.
Although, the victim’s niece stated that when she
reached the place of occurrence she had seen the appellant
and her aunt having sex, however, during cross-examination
she admitted that she had not stated so to the police.
Crl. A. No. 9 of 2024
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Rinzing Sherpa vs. State of Sikkim
Therefore, it would be important for us to look at other
prosecution evidence to ascertain the truth.
The appellant’s identity
27. The victim’s mother (PW-1), the victim’s sister-in-
law (PW-2) who lodged the FIR, the victim’s niece (PW-5) who
was the eye witness, the victim’s father (PW-9), all identified
the appellant as the person who was working in the victim’s
house as a carpenter/mason. The victim’s mother (PW-1),
the victim’s sister-in-law (PW-2), the victim’s niece (PW-5)
and the victim’s father (PW-9) confirmed that the appellant
was working at her house at the time of the incident.
Evidently, the victim as well as her family members knew
the appellant as he was working in their house and
therefore, the identification of the appellant by them in
Court cannot be doubted.
28. PW-7 was the next person in the sequence who
heard the victim’s niece (PW-5) shout at the appellant at the
place of occurrence. PW-7 identified the appellant as his co-
villager. According to him, when he and his friend
approached the victim’s niece (PW-5), she told them that she
had seen the appellant having sex with the victim. PW-7
then took the appellant to the police station from the place
of occurrence.
Crl. A. No. 9 of 2024
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Rinzing Sherpa vs. State of Sikkim
29. The depositions of PW-1, PW-2, PW-5 and PW-7
confirms that after the incident the appellant was taken to
the police station along with the victim from the place of
occurrence. PW-2 then lodged the FIR.
30. The evidence of the above witnesses also
corroborates the prosecution story.
31. We notice that in her deposition, the victim’s
niece (PW-5) had stated that she had seen the appellant with
one of his friends just before the incident. During
arguments, the learned Counsel for the appellant suggested
that there could be a possibility that someone else was the
perpetrator of the crime. However, the victim’s niece (PW-5)
was certain that after the appellant asked the victim to fetch
alcohol, it was he alone who followed the victim towards the
place of occurrence, compelling her to follow the appellant.
Therefore, there was no one else with the victim at the place
of occurrence except the appellant. The victim, in her
deposition, also confirmed that her niece had seen the
incident.
32.
Dr. Sonica Rai confirmed that when she had
examined the appellant on the same day she had found
“defence marks” on the appellant’s arm. She noted this in
Crl. A. No. 9 of 2024
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Rinzing Sherpa vs. State of Sikkim
the Medical Report (exhibit P-13). The appellant explained
this “defence marks” by stating that it was due to the
assault by PW-5’s brother while giving his statement under
Section 313 Cr.P.C. During cross-examination, PW-7
admitted to have beaten the accused that day.
33. It could be possible that the “defence marks” in
the right arm of the appellant was caused when he was
beaten by the brother of PW-5. However, according to PW-7,
he beat the appellant on the date of the incident at the place
of occurrence. Therefore, the presence of the appellant at the
scene of the crime is further confirmed. The defence has led
no evidence to suggest anything else. In fact, the appellant
himself confirms his presence while answering the
circumstances against him under Section 313 Cr.P.C.
Therefore, there cannot be confusion in our mind regarding
the identity of the appellant and his presence at the place of
occurrence when the crime was committed.
34. When the Court is to examine alleged crime
committed on a differently abled victim it has to scrutinise
every piece of evidence meticulously as the victim may not
be able to describe the incident coherently in the manner we
understand. This, however, does not mean that the
Crl. A. No. 9 of 2024
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Rinzing Sherpa vs. State of Sikkim
deposition should not inspire judicial confidence. Failure to
name the appellant as the aggressor should not be given
undue weightage lest truth gets supressed in her silences.
The inability of a differently abled victim in not being able to
name the appellant as the aggressor, cannot be a ground to
discard the prosecution version as the ocular evidence is
corroborated by the medical and forensic evidence which
confirms rape upon the victim. Our inability to undertand
the victim’s language should not lead to a failure of justice.
What is important is to know what she has to say more than
how she says it. The prosecution evidence overwhelmingly
confirms the presence of the appellant at the place of
occurence at the relevant time. It also confirms that it could
not have been anyone else who had committed the offence.
35. We, therefore, have no hesitation in upholding the
conviction of the appellant under Section 376(2)(l) of the IPC.
Keeping in mind the nature of the injuries suffered by the
victim who was a differently abled woman, we are of the view
that the sentence of 10(ten) years of rigorous imprisonment
and a fine of twenty-five thousand rupees is just and proper.
The learned Sessions Judge has also directed that in default
of payment of fine, the appellant shall undergo simple
imprisonment for one year and the period of detention
Crl. A. No. 9 of 2024
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Rinzing Sherpa vs. State of Sikkim
already undergone by him during investigation and trial
with effect from 03.09.2022 shall be set off against the
sentence of imprisonment as provided under Section 428
Cr.P.C.
36. The learned Sessions Judge has also found that
the victim has been traumatised as a result of the acts
committed by the appellant and recommended
compensation of Rs.4,00,000/- under the Sikkim
Compensation to Victims (or their Dependents) Scheme, 2021 .
37. We confirm the sentence, the directions, as well
as the recommendation for compensation.
38. The appeal is dismissed and disposed of
accordingly.
39. Copy of this judgment be sent to the learned Trial
Court for information and records be remitted forthwith.
(Bhaskar Raj Pradhan) (Meenakshi Madan Rai)
Judge Judge
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