The Sikkim High Court has altered the conviction of a man from rape to attempt to commit rape in a case involving a 90-year-old woman, holding that although the ocular and forensic evidence proved an attempt, penetration had not been established beyond a reasonable doubt.

The Court was hearing a criminal appeal against a Trial Court judgment convicting the appellant under Sections 376(2)(j) and 450 IPC, and sentencing him to life imprisonment for the remainder of his natural life for rape and ten years’ rigorous imprisonment for house trespass.

A Bench of Chief Justice A. Muhamed Mustaque and Justice Bhaskar Raj Pradhan held:

“The prosecution, although, has not proved penetration beyond reasonable doubt so as to sustain a conviction for the completed offence of rape. However, the proved circumstances unmistakably establish that the Appellant had commenced the execution of the offence and had proceeded far beyond the stage of mere preparation. Having regard to the advanced age and physical condition of the victim, the evidence does not rule out the possibility that the Appellant was unable to accomplish penetration. In the absence of any explanation from the Appellant, and viewed in the light of the proved ocular and forensic evidence, the only reasonable inference is that the Appellant had attempted to commit rape. The application of Section 106 in the present case does not relieve the prosecution of its burden to prove the foundational facts, rather, it supplements the prosecution case by permitting the Court to draw an adverse inference in respect of facts exclusively within the knowledge of the Appellant”.

Advocate D.K. Siwakoti appeared as Legal Aid Counsel for the appellant, while Public Prosecutor Thinlay Dorjee Bhutia appeared for the State.

Background

The case arose after a 90-year-old woman was found screaming by her son, who lived near the house where she was residing. The FIR was lodged the following day on information given by the victim’s grandson.

The Trial Court convicted the appellant of rape and house trespass. For the offence under Section 376(2)(j) IPC, he was sentenced to rigorous life imprisonment for the remainder of his life without eligibility for clemency or parole, along with a fine. For the offence under Section 450 IPC, he was sentenced to rigorous imprisonment for ten years and a fine. Both sentences were directed to run concurrently.

The victim was physically frail, required assistance to walk and eat, and was suffering from advanced dementia. The Court noted that she was incapable of giving a statement or undergoing a cognitive assessment, and she later passed away. The prosecution, therefore, did not have her direct testimony.

The appellant argued that, at best, the evidence established only an attempt to commit rape under Section 511 IPC and not the completed offence of rape. The State argued that the surrounding circumstances, ocular evidence and forensic evidence established rape.

Court’s Observations

The Court noted that the only eyewitness was the victim’s son, who deposed that he heard his mother crying and, upon rushing to the house, found the appellant on top of her with his trousers lowered below his knees. He also noticed that the victim’s traditional dress had been pushed up.

The Court found that the appellant and the eyewitness belonged to the same village and were previously acquainted. It also noted that the eyewitness immediately contacted the ward panchayat and later informed family members.

The Court observed: “The immediate conduct of PW-8 in informing PW-6 and thereafter his family members assumes significance, particularly as he was the sole ocular witness. His conduct is relevant under Section 8 of the Indian Evidence Act, 1872 and is corroborated by the independent testimony of PW-6 who confirmed that PW-8 narrated the incident to him immediately after its occurrence. PW-6 being the Ward Panchayat and an independent person with no apparent motive corroborated the said version.”

The Court further noted that the Central Forensic Science Laboratory report confirmed that semen of the appellant was found on the victim’s apparel.

The Court then examined whether the proved facts constituted rape or only attempt to commit rape. It noted that after the Criminal Law (Amendment) Act, 2013, penile-vaginal intercourse is no longer indispensable to constitute rape, and Section 375 IPC includes manipulation resulting in penetration into any part of the body.

The Court referred to Santhosh v. State of Kerala (2021) and Prafulla Mundari alias Pelka v. State of Odisha (2021) on the expanded meaning of rape after the 2013 amendment.

However, the Court clarified that proof of penetration, however slight, remains indispensable for the completed offence of rape. It referred to Koppul Venkat Rao v. State of A.P. (2004), Murugadoss v. State by Inspector of Police, All Women Police Station, Tindivanam (2014), Juned v. State of Maharashtra (2025), and Suresh v. State of Haryana (2007).

The Court held: “The question, therefore, is not whether ejaculation occurred, but whether penetration, within the meaning of Section 375 IPC, has been established beyond reasonable doubt.”

The Court found that the eyewitness had stated that he saw the appellant committing rape, but had not described the precise sexual act or deposed that he had actually seen penetration.

The Court held that in the absence of medical evidence establishing penetration and in the absence of the victim’s testimony, a court may infer penetration only when the proved circumstances exclude every reasonable hypothesis except penetration.

The Bench stated: “Although penetration may be slight and need not be proved by direct evidence or medical findings in every case, the inference of penetration cannot rest on conjecture or suspicion. It must arise as the only reasonable conclusion flowing from the proved circumstances.”

The Court noted that the medical report did not reveal external injuries or injuries to genital organs, nor did it conclusively establish penile penetration or sexual intercourse. It also noted that while the appellant’s semen was detected on the victim’s clothing, that fact alone did not prove penetration beyond a reasonable doubt.

The Court applied Section 106 of the Indian Evidence Act to draw an adverse inference against the appellant in relation to facts especially within his knowledge. It held that the prosecution had established foundational facts through ocular and forensic evidence, and the appellant had offered no explanation as to how his semen came to be found on the victim’s clothing.

The Court referred to Shambhu Nath Mehra v. State of Ajmer (1956) and State of Rajasthan v. Kashi Ram (2006) to reiterate that Section 106 does not shift the burden of proof from the prosecution, but may operate as an additional link when the prosecution has otherwise established incriminating circumstances.

The Court observed: “The ocular evidence establishes that the Appellant was found above the body of the ninety year old victim, while the forensic evidence conclusively proves that the semen found on the victim's clothing belonged to the Appellant. These incriminating circumstances have been proved beyond reasonable doubt. The Appellant alone was in a position to explain the circumstances in which his semen came to be deposited on the victim's clothing. Yet, instead of offering any explanation consistent with innocence, he chose to deny the entire prosecution case.”

The Court concluded that the appellant had gone beyond preparation and had attempted to commit rape, but that the conviction for the completed offence under Section 376(2)(j) IPC could not be sustained.

The Court held: “The proved circumstances unmistakably demonstrate that the Appellant had embarked upon the commission of the offence and had proceeded well beyond the stage of mere preparation. The evidence leaves no reasonable doubt that the Appellant was attempting to commit rape when ejaculation occurred during the course of the assault. In the absence of any plausible explanation from the Appellant, the only reasonable inference flowing from the proved facts is that the ejaculation occurred in the course of an attempted act of penetration, thereby constituting an attempt to commit rape.”

Accordingly, the Court set aside the conviction under Section 376(2)(j) IPC and convicted the appellant under Section 511 read with Section 376 IPC.

Conclusion

The High Court partly allowed the appeal.

The Court altered the conviction from Section 376(2)(j) IPC to Section 511 read with Section 376 IPC for attempt to commit rape. It modified the sentence of life imprisonment for the remainder of natural life to rigorous imprisonment for five years.

The sentence under Section 450 IPC was also modified to five years. Both sentences were directed to run concurrently, and the period of detention already undergone during the pre-trial stage was directed to be set off.

Cause Title: Chenga Thsering Bhutia v. State of Sikkim

Appearances

Appellant: D.K. Siwakoti, Advocate, Legal Aid Counsel

Respondent: Thinlay Dorjee Bhutia, Public Prosecutor, with Yadev Sharma, Additional Public Prosecutor

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