Sandeep Gajmer @ Sandeep 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. 30 of 2024
Sandeep Gajmer @ Sandeep Gazmer,
Aged about 32 years,
S/o Shri Kharka Bahadur Gajmer,
th
Resident of 7 Mile, Near Gas Godown,
P.O. Samdur and P.S. Ranipool,
Gangtok, Sikkim.
At present: Rongyek Jail, Gangtok, .... Appellant
versus
State of Sikkim .... Respondent
Appeal under Section 415(2) of the Bharatiya Nagarik Suraksha
Sanhita 2023 (BNSS)
[ against the impugned judgment dated 21.08.2024 & order on sentence dated 22.08.2024
passed by the learned Special Judge (POCSO Act, 2012) at Gangok, in S.T. (POCSO) Case No.
14 of 2022 – State of Sikkim vs. Sandeep Gajmer @ Sandeep Gazmer ]
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Appearance:
Mr. N. Rai, Senior Advocate with Mr. Yozan Rai and Ms Tara Devi
Chettri, Advocates 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
th
Date of Hearing : 20 April, 2026
th
Date of Judgment : 29 May, 2026
th
Date on which uploaded: 29 May, 2026
Bhaskar Raj Pradhan, J.
The appellant stands convicted and sentenced for
rape under Section 376(1) of the Indian Penal Code, 1860
(IPC). He has been sentenced for ten years rigorous
imprisonment with a fine of Rs.5000/-. The victim has been
Crl. A. No. 30 of 2024
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Sandeep Gajmer @ Sandeep Gazmer vs. State of Sikkim
recommended for award of compensation to a sum of
Rs.1,00,000/- under the Sikkim Compensation to Victims
(or their Dependents) Scheme, 2021.
2. The appellant assails the impugned judgment
dated 21.08.2024 and the order on sentence dated
22.08.2024 passed by the learned Special Judge, POCSO
Act, Gangtok, Sikkim in S.T. (POCSO) Case No.14 of 2022.
3. Heard Mr. N. Rai, learned Senior Advocate for the
appellant and Mr. Yadev Sharma, learned Additional Public
Prosecutor for the State.
The arguments
4. The learned Senior Counsel for the appellant
submits that the defence demolished the medical evidence of
the prosecution during the trial. According to him, the
medical and forensic reports do not suggest sexual assault;
that even if the prosecution has been able to establish rape
upon the victim, the appellant‟s guilt was not proved; that
the victim‟s age was not proved during trial; that although
test identification parade was conducted by the prosecution,
they supressed the test identification report clearly raising a
presumption against them under Section 114(g) of the
Indian Evidence Act, 1872. The learned Senior Counsel
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Sandeep Gajmer @ Sandeep Gazmer vs. State of Sikkim
relied upon two judgments of the Supreme Court and two of
this Court in support of his contentions.
1
5. In Rajesh Patel vs. State of Jharkhand , the
Supreme Court was examining a case of alleged rape upon
the prosecutrix. Before the Supreme Court, it was argued
that the sole testimony of the prosecutrix could not have
been used against the appellant therein to hold him guilty of
offence under Section 376 IPC; that the prosecution had not
examined either the doctor who conducted the medical
examination of the prosecutrix or the investigating officer.
Therefore, the finding of fact holding the appellant guilty of
the offence was erroneous in law and liable to be set aside. It
was also contended that there were serious contradictions in
the version of the prosecutrix and her mother. Further, the
appellant contended that the explanation of the prosecution
that the prosecutrix could not raise alarm since the
appellant threatened her with a knife was improbable. The
Supreme Court on examination of the evidence of the case
concluded that the prosecution story as narrated by the
prosecutrix was most improbable and unnatural. The
Supreme Court also found that there was inordinate delay in
lodging the FIR, which was not tenably explained. As the
1
(2013) 3 SCC 791
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Sandeep Gajmer @ Sandeep Gazmer vs. State of Sikkim
doctor had not been examined, the Supreme Court had
opined that the non-examination of the doctor as well as the
investigating officer has prejudiced the case of the appellant
therein, for the reason that if the doctor would have been
examined he could have elicited evidence about any injury
sustained by the prosecutrix on her private part or any other
part of her body and also the nature of hymen layer, etc. so
as to corroborate the story of the prosecution that the
prosecutrix suffered unbearable pain while the appellant
committed rape on her.
2
6. In Subhash vs. State of Haryana , the Supreme
Court found that dying declaration was not believable as
there were contradictions, inconsistencies, exaggerations
and embellishments in the deposition of the victim without
any explanation.
3
Shaktiman Rai vs. State of Sikkim
7. In , we were once
again called upon to determine the guilt of the accused
person who had been convicted solely on the dying
declaration of the deceased. We held that the prosecution
must stand on its own legs and cannot garner strength from
the weaknesses of the defence. We also held that the
cardinal principal of criminal jurisprudence is that the case
2
(2011) 2 SCC 715
3
2024:SHC:39
Crl. A. No. 30 of 2024
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Sandeep Gajmer @ Sandeep Gazmer vs. State of Sikkim
can only be proved beyond a reasonable doubt when there is
explicit evidence against the accused and the conviction
cannot be a moral one. On examination of the facts of the
case, we were of the view that the prosecution had not been
able to prove its case beyond a reasonable doubt and failed
to establish the identity of the appellant as the assailant. We
also held that in the light of vacillating evidence, the dying
declaration had not been proved by the prosecution.
4
8. In Sandeep Tamang vs. State of Sikkim , one of us
( Meenakshi Madan Rai, J .) sitting singly, held that the
prosecution had failed to establish that the victim was either
18 years or 16 years of age at the time of the offence on the
facts of that case. It was also held that the evidence of the
prosecution witness did not inspire confidence and the
evidence of other witnesses was contradictory.
9. The learned Additional Public Prosecutor
submitted that the factum of rape has not been demolished.
It was submitted that the prosecution has been able to
establish that the appellant raped the victim and there is no
denial that he was with her that day.
4
2016:SHC:84
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Sandeep Gajmer @ Sandeep Gazmer vs. State of Sikkim
The relevant facts
10. The brief facts relevant for the purpose of disposal
of the present appeal are required to be stated herein. On
22.3.2022, the victim‟s father (PW-2) lodged a missing report
stating that the victim, aged 16 years did not return home
after her tuition got over at 5:30 p.m. The Station House
Officer (SHO) (PW-10) registered Sadar P.S. Case (FIR)
No.41/2022 dated 22.3.2023 under Section 363 IPC against
unknown persons. According to the Investigating Officer
(PW-20), after receipt of the missing report and registration
of the case, WT messages were circulated to all police
stations and police outposts. Subsequently, she was traced
and admitted to the hospital . During her medical
examination by Dr. D.P. Sharma (PW-14), she revealed to
him that she was sexually assaulted. On 6.6.2022, the
Investigating Officer (PW-20) filed a charge-sheet alleging
that the appellant had committed rape against the minor
victim and was liable to be punished under Section 376 of
the IPC read with Section 4 of the Protection of Children
from Sexual Offences Act, 2012 (POCSO Act). On 19.9.2022,
the learned Special Judge framed two charges against the
appellant for having committed an offence defined under
Section 3(a) of the POCSO Act punishable under Section 4(2)
thereof in the evening of 22.3.2022 at an isolated place on
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Sandeep Gajmer @ Sandeep Gazmer vs. State of Sikkim
the minor victim who was below the age of 16 years. The
appellant was also charged of the same offence under
Section 376 (3) of the IPC.
11. Twenty witnesses including the Investigating
Officer (PW-20) were examined by the prosecution during
the trial. The learned Sessions Judge framed two questions
to be examined by him. The first was whether the appellant
committed penetrative sexual assault on the victim at an
isolated location inside a bus bearing number SK-03-B-0104
on the evening of 22.3.2022 and whether the victim was a
minor within the meaning of Section 2(d) of the POCSO Act.
The impugned judgment
12. While the learned Special Judge was convinced
that the accused had committed rape upon the victim, it was
held that the prosecution had failed to establish that the
victim was a minor and a child within the meaning of
Section 2(d) of the POCSO Act.
The challenge
13. The appellant assailing his conviction under
Section 376(1) of the IPC has filed the present appeal. The
finding of the learned Special Judge that the prosecution
failed to establish the victim‟s minority has not been
assailed by the State. Thus, the only question which is to be
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examined by us is whether the appellant‟s conviction under
Section 376(1) of the IPC was correct.
14. The learned Sessions Judge relied upon the
statements of the owner of the bus (PW-19) to confirm that
he had engaged the appellant as the driver of the bus, which
was seized by the prosecution in the present case. PW-17
who was employed with the company also confirmed that
the appellant was the driver of the bus. Two employees of
the same company (PW-6 and PW-18) had seen a girl
travelling with the appellant in his bus during the relevant
time. The learned Special Judge was reassured that it was in
fact the victim who had travelled with the appellant in the
bus during the relevant period through the admission of the
defence. The learned Special Judge believed the victim who
deposed that it was the appellant who had raped her. It was
held that although the victim was cross-examined at length
the core of the evidence could not be demolished. The
learned Special Judge also relied upon the evidence of lady
police personnel (PW-4) to confirm that she along with her
colleague had taken the victim from the “hawa ghar”
(kiosk/waiting shed) to the hospital for medical aid since she
was lying unconscious. The learned Special Judge also
relied upon the deposition of another lady police personnel
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Sandeep Gajmer @ Sandeep Gazmer vs. State of Sikkim
(PW-11) according to whom the victim had disclosed to the
doctor (PW-14) that she had been roaming with the
appellant in his bus. The deposition of Dr. D.P. Sharma (PW-
14) to the effect that before conducting medical examination
he inquired from the victim and she revealed that she had
been sexually assaulted by a person the previous night
reassured the learned Special Judge what the victim had
desposed in Court was true. The medical report prepared by
the Doctor (PW-14) and the medical file of the victim of the
hospital corroborated the victim‟s injury.
Consideration
15. Central to this present prosecution, like in every
case of sexual offence, is the victim‟s version. The victim had
informed the learned Magistrate in her statement recorded
on 29.3.2022 under Section 164 Cr.P.C. that on 21.03.2022
she had an argument with her father. After attending
tuition, she did not wish to return home so she stayed at
“hawa ghar” (kiosk/waiting shed). While she was there, one
person came in a bus and asked her if she wanted to
accompany him. She did not trust his intention and refused.
She spent the night at the “hawa ghar” (kiosk/waiting shed).
Early next morning, he came back again in a different
vehicle and once again asked her if she wanted to
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accompany him. By then she was hungry and cold and so
she accompained him. He first drove her to the petrol pump
and after that they boarded the bus that was driven by him.
He had to drop off the employees of the company and while
doing so he fed her food at a particular place. He asked her
to spend a day with him and they travelled in the bus the
entire day while he was picking up and dropping off the
employees. She remembered the registration number of the
bus. That night, inside the bus, he forced himself on her and
raped her despite her protest. Later on, he apologised to her
for raping her. After that they drove to the petrol pump and
he asked her to stay inside a vehicle. He boarded the bus
and went to Gangtok. After he returned he asked her to
leave and she went to the same “hawa ghar” (kiosk/waiting
shed). It was raining then. She may have lost consciousness
after that.
16. The victim deposed on 20.10.2022 and stated that
she was 17 years old and studying in class IX. She identified
the appellant shown to her on the screen as the uncle who
came and took her in the bus and raped her. The
identification of the appellant in Court by the victim was not
objected to by the defence. The defence has also not
suggested that it was not the appellant who was with the
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victim on the day of the incident. Infact, the suggestion
made to the victim during cross-examination reflects his
admission that they were together on the day of the incident.
The victim has deposed all that she stated in her statement
recorded under Section 164 Cr.P.C. with exaggerations and
embellishments. She recollected the incident when in the
summer of 2021 ( „2022‟), she had quarrelled with her
sic
father and left home. The narration of facts are descriptive
and in detail. She alleged that she was raped by the
appellant in the bus and remembered the registration
number as 104 as she had alleged in her statement recorded
under Section 164 Cr.P.C as well. The cross-examination of
the victim was exhaustive and certain descripancies and
exaggerations have been brought out which cautions us to
scrutinise the evidence properly. However, we notice that the
core of the victim‟s deposition in Court and her statement to
the learned Magistrate that the appellant had raped her
inside a bus bearing no.104 remained intact as held by the
learned Special Judge.
17. According to the prosecution, the victim was
raped by the appellant inside the bus on 22.03.2022 in an
isolated place in the cover of darkness. The victim deposed
that she had travelled in the bus driven by the appellant
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throughout the day, i.e., 22.03.2022, when he picked up
various employees of the company and dropped them off.
Two employees of the company (PW-6 and PW-18) identified
the appellant as the driver of the bus belonging to the
company. They also recollected that some time last year they
had boarded the bus driven by the appellant when they saw
one girl boarding it. The victim also deposed about being
driven to a petrol pump after she was raped. An employee of
the petrol pump (PW-13) also identified the appellant as the
driver of the bus and that some time last year he had come
to the petrol pump, parked his bus and asked him to give
some water to one girl who was in the bus. Although, none
of these witnesses identified the victim as the girl who was
with the appellant at the relevant time, their identification of
the appellant cannot be doubted. The owner of the bus (PW-
19) confirmed that the appellant was the driver of his bus
bearing registration no. SK-03-B-0104. The registration
certificate of the bus (exhibit P-23/PW-19) confirms this.
The authorization letter issued by PW-19 in favour of the
appellant (exhibit-24/PW-19) also confirms that the
appellant was in fact the driver of the bus.
18. The first prosecution witness who saw the victim
was lady police personnel (PW-4), who on receipt of
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Sandeep Gajmer @ Sandeep Gazmer vs. State of Sikkim
information, evacuted the victim lying unconscious from the
waiting shed to the hospital. Another lady police personnel
(PW-11) visited the hospital on 22.3.2022 after receiving a
call from the General Duty Officer of the Police Station and
found the victim admitted there who was being attended to
by Dr. D.P. Sharma (PW-14). According to her, when Dr.
D.P. Sharma (PW-14) inquired from the victim, she disclosed
that she was roaming along with a bus driver of a company
in a bus bearing no. SK-03-B-0104. She also deposed that
another doctor came and medically examined the victim‟s
private parts and found signs of recent sexual intercourse.
The executive in the operation department of the hospital
(PW-8) proved the medical report of the victim which reflects
that the victim had infact been admitted in the hospital on
23.03.2022 as per the prosecution case.
19. Dr. D.P. Sharma (PW-14) examined the victim
after she was brought to the hospital. He deposed that the
victim was brought by one personnel from the police station
in the emergency ward in a semi-conscious state on
23.03.2022 with the alleged history of having found lying
near Oxxx Vxxx confirming the deposition of the lady police
personnel (PW-4). He inquired from the victim regarding the
matter. She revealed that she was sexually assaulted by a
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person the previous night corroborating the deposition of the
other lady police personnel (PW-11). On local examination,
he found 5x4cm reddish blue coloured bruise over left
supraclavicular region. On genital examination, he found
her hymen torn at 6‟0 clock position with presence of
reddish erythematous swelling with discharge present. Dr.
D.P. Sharma (PW-14) opined that there was presence of
forceful penetration. He, therefore, prepared his medical
report (exhibit P-16/PW-14). He also prepared a wound
certificate (exhibit P-18/PW-14) in which he had mentioned
that the injury sustained was simple in nature and the fact
that the genital examination of the victim had been
conducted by Dr. Shrabanti and Dr. Karma Mingyur in his
presence.
20. As both Dr. Shrabanti and Dr. Karma Mingyur,
who admittedly conducted the genital examination of the
victim, were not examined by the prosecution, the learned
Senior Counsel submitted that the wound certificate (exhibit
P-18/PW-14) should be discarded as it was not proved by
them. The wound certificate (exhibit P-18/PW-14) has been
prepared by Dr. D.P. Sharma (PW-14) and therefore, we are
of the view that failure to examine Dr. Shraban and Dr.
Karma Mingyur who conducted the genital examination of
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Sandeep Gajmer @ Sandeep Gazmer vs. State of Sikkim
the victim would not be fatal since Dr. D.P. Sharma (PW-14)
had witnessed the genital examination and had prepared the
wound certificate himself.
21. During cross-examination, Dr. D.P. Sharma (PW-
14) admitted that there was no fresh injury over the genital
region of the victim. He also admitted that there was no
fresh bleeding from the torn hymen at 6‟O clock position
which proves that it was an old injury. He admitted that he
had found no injury over the body of the victim. He admitted
that the reddish erythemous swelling could be caused due to
non-maintenance of hygiene and not changing of
undergarments for two-three days.
22. Dr. D.P Sharma‟s (PW-14) admission during
cross-examination that he had found no injury over the
body of the victim is not borne from the medical report
prepared by him which reflects that he had, as deposed in
his examination in chief, noted that there was 5x4cm
reddish blue colour bruise over left supraclavicular region.
Although, he also admitted that the reddish erythemous
swelling could be caused due to non-maintenance of hygiene
and not changing of under garments for two three days we
are of the view that the finding of reddish erythemous
swelling along with the torn hymen and the reddish blue
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bruise is suggestive of sexual assault which corroborates the
victim‟s version of rape committed on her.
23. Although, the forensic evidence did not yield
positive result, we are of the view that this fact alone cannot
undo the evidence of the victim corroborated by the medical
evidence and other prosecution witnesses. It is settled that a
positive result of forensic examination would constitute
clinching evidence against an accused if, however, the result
of the forensic test is in the negative, i.e., favouring the
accused, the weight of the other material on evidence on
record still have to be considered (see Sunil vs. State of
5
Madhya Pradesh
). We are of the considered view that failure
of the prosecution to further clinch the case with the
forensic evidence result does not negate the deposition of the
victim as well as the medical evidence proved by them and
other prosecution witnesses as discussed above.
24. During the cross-examination of the Investigating
Officer (PW-20), he confirmed that during investigation test
identification parade was conducted by him but the report of
the test identification parade was not enclosed in the
charge-sheet. The victim during her cross-examination
admitted that she had gone to the jail for a test identification
5
(2017) 4 SCC 393
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Sandeep Gajmer @ Sandeep Gazmer vs. State of Sikkim
parade and she could not identify the appellant from the line
up. Identification parade belongs to the stage of
investigation by the police. The question whether a witness
has or has not identified the accused during the
investigation is not one which is in itself relevant at the trial.
The actual evidence regarding identification is that which is
given by witnesses in Court. It is quite evident that when the
test identification parade was conducted by the prosecution,
the victim did not identify the appellant at that time.
However, we notice that the appellant‟s identification by the
victim in Court has not even been questioned by the
appellant during cross-examination. In fact, the appellant
through the suggested questions during cross-examination
of the victim has admitted that he was with the victim in the
bus on the relevant day. The appellant also admitted this
fact voluntarily while explaining the circumstances against
him in the proceedings under Section 313 Cr.P.C. Thus,
even the presumption under Section 114(g) of the Indian
Evidence Act, 1872 against the prosecution that the result of
the test identification parade, which could have been
produced but was not produced would, if produced, be
unfavourable to the prosecution who withheld it would be to
the extent the victim herself admitted during her cross-
examination. This presumption under Section 114(g) of the
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Indian Evidence Act, 1872 being a rebuttable presumption
we notice that the evidence led by the prosecution, i.e., the
deposition of the victim and the other prosecution witnesses
rebuts this presumption.
25. We hold that the medical evidence read with the
victim‟s deposition clearly suggests that the victim was
raped by the appellant inside the bus bearing no. SK-03-B-
0104 on the evening of 22.3.2022. We are of the view that it
would not have been anyone else beside the appellant who
was responsible for the heinous act.
26. We are, therefore, of the opinion that the
conviction of the appellant under Section 376 of the IPC and
consequent sentence by the learned Special Judge calls for
no interference. The appeal is rejected.
27. Copy of this judgment be sent to the learned
Special Judge, Gangtok, for information along with the
records.
(Bhaskar Raj Pradhan) (Meenakshi Madan Rai)
Judge Judge
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