While displaying maturity in extending the benefit of doubt when it was needed most, the Sikkim High Court has in a most learned, laudable, landmark and latest judgment titled Milan Kumar Rai vs State of Sikkim in Crl. Appeal No. 16 of 2021 and cited in 2022 LiveLaw (Sik) 13 that was heard on September 21 and then finally pronounced on September 30, 2022 acquitted a man accused in a Protection of Children from Sexual Offences Act, 2012 (POCSO) case after noticing that the victim suffered catatonic schizophrenia and thus prone to hallucinations and delusions. It must be noted that the Division Bench of Hon’ble Mrs Justice Meenakshi Rai and Hon’ble Mr Justice Bhaskar Raj Pradhan observed quite rightly and rationally that:
It would be difficult to conclude with absolute certainty that what the victim states in her deposition is not coloured by hallucination as she was certainly suffering from catatonic schizophrenia. The Bench also added that:
What the victim deposed before the court may be true. However, ‘may be’ cannot be the bench mark in a criminal prosecution. This appeal under Section 374(4) of the Code of Criminal Procedure (CrPC), 1973 in this case is against the impugned judgment and order on sentence dated 11.10.2021 passed by the ld. Special Judge (POCSO) West Sikkim at Gyalshing in S.T. (POCSO) Case No. 10 of 2020 : State of Sikkim vs. Milan Kumar Rai.

At the outset, this commendable, cogent and convincing judgment authored by Hon’ble Mr Justice Bhaskar Raj Pradhan for a Division Bench of the Sikkim High Court comprising of himself and Hon’ble Mrs Justice Meenakshi Rai sets the ball rolling by first and foremost putting forth in para 1 that:
Mr. Jorgay Namka, learned counsel for the appellant, sought to assail the impugned judgment dated 11.10.2021 passed in S.T. (POCSO) Case No. 10 of 2020 convicting the appellant under section 376(2)(n) and 376(3) of the Indian Penal Code, 1860 (IPC) as well as under section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) as amended by the POCSO Amendment Act, 2019 on the ground that the victim’s statement is not of sterling quality and is not corroborated by other evidence.

It is argued that there is no evidence to suggest when and where the alleged offence took place. Mr. Namka submitted that the FIR (exhibit-1) was lodged on 02.05.2020 after recording the statement of the victim’s mother who stated that she learnt about the incident in the year 2017 which transpired earlier. The mother of the victim, however, deposed before the court that it was in the year 2016 that the incident took place as informed to her. The victim, however, did not give any date or time of the incident and barely stated that the appellant opened her clothes, fondled her breasts and committed penetrative sexual assault on her in the dairy. She also deposed about having being raped ten times before without giving any further details.

The learned counsel took us through the medical records which reflect that since the victim was unable to speak history could not be elicited. He also took us through the depositions of PW-8 - a Social Worker of the District Children Protection Unit (DCPU) and PW-10 – an Outreach Worker under the DCPU. Both the witnesses deposed that the victim was uncommunicative and did not communicate much. However, the same victim is said to have narrated the story before the learned Magistrate as well as in Court. It was further argued that the entire case of the prosecution sans the cryptic deposition of the victim is based on hearsay evidence which is not acceptable.

It is argued that the FIR (exhibit-1) is based on a statement of the mother (PW-1) of the victim, according to which, she was informed about the incident by two ladies PW-11 and another who was not examined by the prosecution. PW-11, however, candidly admitted that she did not have any personal knowledge about the incident and did not depose or corroborate the statement of the mother (PW-1) of the victim about the fact that she had informed her of what the victim had disclosed to her.

To put things in perspective, the Division Bench then envisages in para 3 that, 17 witnesses were examined by the prosecution. The defence did not lead any evidence after the examination of the appellant under section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.). The impugned judgment was delivered on 11.10.2021. It was held that the statement of the victim that whenever she used to be alone at home the appellant used to have forcible penetrative sex with her and that he did it several times, as well as the allegation, that he raped her in the dairy and at home was sufficient to prove that he had committed the offence on more than one occasion. Although, the learned Special Judge noticed the apparent lapse on the part of the investigating agency of not producing an important witness, it did not deter her in holding the appellant guilty as bad investigation was no ground for acquittal.

The argument of the defence that the allegation of rape was cast upon the appellant due to the relationship he had with the victim’s mother was dispelled by the learned Special Judge as in her opinion the argument was farfetched. She opined that even if they had a love affair no mother would stake the reputation of a family at the cost of her minor girl child and that too as one such as the present victim, with her unfortunate ailments/condition merely on account of a soured relationship or to get even with the accused. The learned Special Judge noticed that the mother of the victim had failed to report the matter at the appropriate time and in fact settled it.

She held that it would have remained unknown to the police had it not been the prompt action of the DCPU. The learned Special Judge held that once it is established that the victim is a child as defined under section 2(1)(d) of the POCSO then sections 29 and 30 come into play and as nothing contrary has been put up by the defence, presumption can be drawn against the appellant. Thus, the learned Special Judge found the appellant guilty of the offences as charged.

As we see, the Division Bench then points out in para 4 that:
The mother of the victim deposed that she knew the appellant as her co-villager and the victim as her eldest daughter. She confirmed that the victim was 17 years old and was born on 30.10.2003. According to her, sometime in the year 2016 when she had taken her younger daughter to Gangtok hospital, her husband sent the victim to the dairy/milk collection centre situated above her house.

When she returned after 10-12 days, she was informed by her relative - PW-11, that the victim told her that when the victim had gone to the milk collection centre the appellant had sexually assaulted her by removing her clothes and committing penetrative sexual assault. As she was not at home, the victim could not tell her father so she informed PW-11 who in turn informed the victim’s mother’s sister-in-law (not examined). According to the victim’s mother, when she returned home, they informed her about the incident. She also deposed that since the victim was mentally slow, she wanted to confirm the allegation before taking action. She therefore called the appellant to her house the next day and asked him, in the presence of the victim and her uncle-in-law (not examined).

The appellant denied the allegation but the victim insisted that he had committed the offence. Her uncle-in-law decided and informed her brother-in-law who then brought some other members from the village, i.e., PW-13, PW-14 and PW-15, to her house along with the appellant. Although, she wanted to report the matter and informed them so, those present convinced her not to go to the police station as the appellant stated he would take responsibility if the victim became pregnant. As there were no eye witnesses to the incident, those present thought it fit to advise her to settle the matter amicably and a compromise document was prepared. Thereafter, in May 2020 some people from an NGO came to her house when the victim was not keeping well and mentally disturbed. They questioned the victim’s mother and asked what happened. She told them about the compromise.

They took the victim with them to a home. The victim’s mother told them that after the compromise in 2016 as the victim seemed alright she did not report the matter. Moreover, since the incident had occurred a long time ago, she did not feel the necessity to report the matter after so many years. However, they returned after two days and inquired as to why she did not report the matter and warned her that if she did not do so they would do it themselves. She then went to the police station and lodged the FIR. She identified the birth certificate of the victim (exhibit-3) as the one handed over by her to the police.

Be it noted, the Division Bench then notes in para 5 that:
During cross-examination, the mother of the victim admitted that the victim suffered from mental illness since childhood; during her recent bout of illness in May 2020, she used to mutter to herself and roam around the village; that the appellant had married twice and in the year 2014 he was in his second marriage. She denied having a relationship with the appellant.

It would be worthwhile to mention here that the Division Bench then states in para 6 that:
The learned Special Judge recorded that as the victim was a minor and had a history of mental illness, she in order to satisfy herself that she is capable of understanding questions put to her, put various questions and on being satisfied that although the victim was slow in speech was nevertheless able to fully understand all questions put to her and was also capable of giving rational answers. When the victim was asked to tell what happened to her earlier, she replied that the appellant opened her clothes at home as well as the dairy.

When asked what happened after he opened her clothes, she answered that he did ‘chara’ to her. She further clarified that the appellant had fondled her breasts and committed penetrative sexual assault on her. She deposed that after that the appellant sometimes used to keep her locked up at the dairy, go to the shop and on his return do ‘chara’ to her. She further deposed that the appellant raped her at the dairy about 10 times.

When the learned Special Judge asked if she had anything else to say, the victim deposed that he raped her when she was alone at home and he did this to her 10 times and when she used to shout, no one used to hear as her relatives would be away collecting fodder. When the victim was asked if she told anyone about it, she answered that she had informed Rxxx Chema as there was no one at home.

Most significantly, what stands out and what is most germane to note is that the Division Bench minces no words to unequivocally hold in para 25 that:
It is certain that the victim was a child. The learned counsel for the appellant did not contest this fact. The prosecution has proved it with satisfactory evidence. The facts of the present case however, is a confusion of assertions some direct and some hearsay made by the prosecution witnesses. The victim’s statement is cryptic as rightfully pointed out by Mr. Namka and does not have any details as to time and place to verify the truthfulness of the statement.

A victim’s statement can be the basis of a conviction if it inspires confidence. The Supreme Court opines that the victim’s statement must be that of a sterling witness and such a statement should be of a very high quality and calibre, whose version should therefore be unassailable. Although, we are in agreement with the submission of the learned Public Prosecutor that the victim’s deposition and the surrounding circumstances including the social conditioning must be kept in mind while appreciating the evidence in the case of this nature we cannot be unmindful of the fact that this is a criminal case and therefore it is incumbent upon the prosecution to prove its case beyond reasonable doubt.

However, the prosecution evidence itself establishes that the victim suffered catatonic schizophrenia and thus prone to hallucinations and delusions. On a reading of the 164 Cr.P.C. statement recorded of the victim (exhibit-4) as well as the deposition it is noticed that both are extremely cryptic giving no scope to us to weigh the truthfulness of the statements. The statement and the deposition although both cryptic vary in its details. It would be difficult to conclude with absolute certainty that what the victim states in her deposition is not coloured by hallucination as she was certainly suffering from catatonic schizophrenia.

There are other evidences which suggest that there could be other reasons which could have led to the present prosecution. Although, these evidences does not inspire us to believe them with absolute certainty nevertheless it is evidence led by the prosecution and they are bound by it. The other evidence led by the prosecution does not take the case further and it is unclear even in the end of the trial as to when, exactly where and how the incident/incidents occurred. According to the mother of the victim herself the incident occurred several years ago. There are varying references of the time line when the incident/incidents are said to have occurred. Even that information is hearsay. Quite clearly, the medical evidence could not enlighten the case further. It is one thing to sympathise with the condition of the victim and yet another to hold an accused person guilty of an alleged crime without absolute certainty.

Most of the other depositions are based on what they heard from the mother of the victim as the victim was uncommunicative. Admittedly, the mother was not present when the victim is said to have disclosed to two ladies about the incident. The prosecution could not bring one of the ladies before the court. The other lady PW-11 had nothing to depose as according to her she had no personal knowledge. In fact, she went to the extent of admitting during cross-examination that the victim had not told her anything about the incident. Even if we consider that the victim had disclosed the fact to her mother it would not take the case further due to the compelling evidence led by the prosecution regarding her mental status which was also deposed to be true by the parents of the victim.

What the victim deposed before the court may be true. However, ‘may be’ cannot be the bench mark in a criminal prosecution. We are required to hold a person guilty only after the prosecution convincingly lays before the court clear evidence to establish the guilt of the accused beyond reasonable doubt. The prosecution has failed to do so. This may have been because of the delay in lodging the FIR. We cannot base our judgment on surmises and conjectures.

Finally, the Division Bench then concludes by holding in para 26 that:
In the circumstances, we are unhesitant to hold that the prosecution has failed to establish the case beyond reasonable doubt as required. The appeal is allowed. The impugned judgment and order on sentence are set aside. The appellant is set free if he is not required in any other case.

All in all, the Sikkim High Court has meticulously and minutely laid bare all the reasons why the POCSO accused must be acquitted. The Court made it clear that the victim suffered from catatonic schizophrenia. It was also pointed out by the Court that the victim was prone to hallucinations and delusions. All told, the Court thus had to hold clearly that the prosecution has failed to establish the case beyond reasonable doubt as required and so the accused was thus rightly acquitted.

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh