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2021 DIGILAW 110 (MEG)

Synjoit Mairang v. State of Meghalaya

2021-12-08

SANJIB BANERJEE, W.DIENGDOH

body2021
JUDGMENT 1. The appeal arises out of a judgment of conviction of November 6 2018 and the order of punishment of November 14, 2018. 2. The appellant has been convicted under Section 5 of the Protection of Children from Sexual Offences Act, 2012 and sentenced to 14 years' rigorous imprisonment under Section 6 thereof together with a fine of Rs.20,000/- and, in the alternative, an additional year of imprisonment upon the fine not being paid. 3. The incident is of January 27, 2017. The minor victim, then aged five, apparently complained to her maternal grandmother on January 27, 2017 that in the afternoon of such date she had been violated by her stepfather when no one was in the house. The grandmother apparently called her sons and, on the following day, took the victim to be examined by a medical practitioner, Dr. Syiem. It is also the version of the prosecution that the mother of the victim was informed much later and it is only after one of the sons of the grandmother of the victim arrived that a further attempt was made on February 18, 2017 to take the victim to the doctor for a second opinion. 4. The case made out by the prosecution revealed that at the time that the victim was taken again to Dr. Syiem on February 18, 2017, he informed the local police following which an investigation was started, though no formal complaint or FIR had been lodged by then. The FIR was lodged by the grandmother on February 18, 2017 after the visit to Dr. Syiem's chambers. 5. The statement of the victim recorded under Section 164 of the Code of Criminal Procedure was short and clear. The essence of the statement was repeated in the course of her examination at the trial. The statement appears to have been substantially reproduced before the Investigating Officer. 6. The grandmother of the victim, examined as PW 1, was steadfast in her version: that she was informed by the victim of the incident whereupon she contacted her sons and, on the following day, took the victim to the doctor and later narrated the incident to the mother of the victim. The mother of the victim, examined as PW 3, also indicated that she did not come to know of the incident immediately and went for a second opinion to Dr. The mother of the victim, examined as PW 3, also indicated that she did not come to know of the incident immediately and went for a second opinion to Dr. Syiem on February 18, 2017, by which time Dr. Syiem had reported the matter to the police. 7. The two sons of the victim's grandmother were examined as PW 4 and PW 5 and sufficiently corroborated the version of PW 1 which, apart from the statement of the victim, was the clinching material against the appellant. To boot, it also came out in the course of the oral evidence that the appellant had left the premises on January 28, 2017, a day after the incident took place. The trial court referred to such conduct pointing to guilt on the part of the appellant herein. 8. The doctor at the Government hospital to which the victim was taken on February 18, 2017 was examined as PW 6. In the course of her examination-in-chief, she indicated that she found the hymen of the victim not to be intact and she concluded therefrom that it was a sign of penetration. In the course of her cross-examination, the doctor revealed that the hymen was 'totally torn' and repeated that it was a conclusive sign of penetration. 9. Formal witnesses were also examined, including the Investigating Officer. There does not appear to have been anything remiss about the investigation though the investigation may have commenced prior to the receipt of the formal complaint or lodging of the FIR. In such context, the trial court referred to the provisions, inter alia, of Section 156 of the Code and the obligation of the police to take notice of a cognizable offence upon receiving any information in such regard, even though there is no formal complaint lodged in respect thereof. 10. Much was made out before the trial court as to the delay in filing the FIR and the same ground is repeated in this appeal. The trial court reasoned that given the background of the persons involved, particularly, of the girl and the grandmother being uneducated, there may not have been any great delay which would vitiate the investigation or dilute the gravity of the charge levelled against the appellant herein. The trial court reasoned that given the background of the persons involved, particularly, of the girl and the grandmother being uneducated, there may not have been any great delay which would vitiate the investigation or dilute the gravity of the charge levelled against the appellant herein. The trial court referred to several Supreme Court judgments to the effect that the delay of a few days or even weeks in such a case, in lodging an FIR or making a complaint, would not detract from the merits of the complaint, if sufficient material is available to substantiate the same. 11. Here is a case of a charge of rape levelled against the stepfather of a five-year-old victim upon the victim complaining to her maternal grandmother of pain and discomfort in her abdomen and vagina. The evidence clearly brings out the fact that the maternal grandmother had not immediately conveyed the matter to the mother of the victim and it was only after the mother of the victim took a stand that the doctor was approached for a second time for his opinion and the complaint came to be lodged as the doctor had already reported the matter to the police. Given the delicate nature of the relationship between the victim's grandmother and the appellant herein and the fact that the victim was five years old and unaware of her rights or of what to do in such circumstances, the nominal delay of some 22 (twenty two) days was appropriately found to be of no consequence by the trial court. 12. The principal ground urged in this appeal is that the statement of the victim recorded in the course of the trial appears to be unnatural. It must be remembered here that the questions put to a witness are not recorded and, generally, only the answers are recorded. It is quite possible that the reference to Section 164 of the Code was in the question that was put to the victim and, consequently, in recording an appropriate answer, a reference to Section 164 is found in the answer, though it is likely that the victim may not have referred to the provision expressly in course of her answer. The practice which is followed is that the gist of the question and answer is recorded in the form of the answer or statement of the witness. 13. The practice which is followed is that the gist of the question and answer is recorded in the form of the answer or statement of the witness. 13. The second ground urged in such connection is that the appellant had no opportunity to cross-examine the victim and the statement of the victim may have been recorded in isolation, since the victim and the accused are kept apart in the course of the trial conducted in respect of offences under the said Act of 2012. Here again, it was up to the appellant to seek cross-examination of the victim, if the appellant chose; and, in the absence of any material in such regard, this belated attempt to rake up the issue cannot be permitted. 14. In any event, there was nothing of substance which was indicated by the appellant in course of his statement under Section 313 of the Code. As is the usual practice in this country, the appellant merely pleaded that he was not guilty but did not make out any positive case despite being aware of the substance of the statements made against him. More importantly, no motive was or is attributed to the victim by the appellant. The evidence does not bring out that the five-year-old girl had any reason to malign her stepfather or dream up the incident that she so vividly described in course of her statement. The wife of the appellant has also supported her daughter's version. 15. The next ground which is pressed is the perceived anomaly in the testimony of the medical practitioner. It is submitted on behalf of the appellant that though the doctor had said in her examination-in-chief that the hymen was not intact, she appeared to embellish to the prosecution case by indicating that the hymen was 'totally torn' in the cross-examination. Nothing much turns on such argument. The hymen was either intact or it was torn. If it was completely intact, it was not torn; and, if it was torn there is no indication as to the extent of the tear either in the examination-in-chief or in the cross-examination. It seems that the appellant seeks to clutch at straws even as he is drowning. 16. The further contention on behalf of the appellant is that Dr. If it was completely intact, it was not torn; and, if it was torn there is no indication as to the extent of the tear either in the examination-in-chief or in the cross-examination. It seems that the appellant seeks to clutch at straws even as he is drowning. 16. The further contention on behalf of the appellant is that Dr. Syiem, the medical practitioner who was approached first by the grandmother with the victim on January 28, 2017 and again on February 18, 2017, had not been examined by the prosecution. The appellant contends that in the absence of Dr. Syiem being called as a witness by the prosecution, the substance of the grandmother's version is robbed of the corroboration of its major part. The appellant also asserts that if the victim had been taken to the medical practitioner a day after the incident, some advice must have been given or a course of treatment may have been suggested and such aspect needed to be elucidated at the trial. 17. Ideally, Dr. Syiem ought to have been called as a witness. However, the absence of Dr. Syiem does not rob the case of its sheen. The incident has been sufficiently and clearly indicated in the several statements of the victim. There does not appear to be any anomaly or discrepancy in such regard. The grandmother, who was first told of the incident, has accurately repeated her original version in course of her testimony in Court. The grandmother's version has been sufficiently corroborated by those of the mother of the victim and the two sons of the grandmother who were examined as PW 4 and PW 5. In addition, the doctor's evidence is clear to the effect that the five-year-old victim had been violated. It is not usual to expect a five-year-old girl to have a ruptured or torn hymen, whatever may have been the extent of the tear. The medical opinion of the expert witness in such regard was that it was a sign of penetration. This aspect of the matter stares in the face of the appellant and he has not been able to shake it off. 18. The final submission on behalf of the appellant is that it is inconceivable that a grown-up man would have penetrative sex with a five-year-old girl and there would be no after-effect thereof suffered by the alleged victim. 19. 18. The final submission on behalf of the appellant is that it is inconceivable that a grown-up man would have penetrative sex with a five-year-old girl and there would be no after-effect thereof suffered by the alleged victim. 19. It is true that there is no report of any physical injury suffered by the victim around her private parts or otherwise. However, the surrounding circumstances must be seen in such regard. The victim was five years old. She was acquainted with her stepfather and could not have been expected to resist when called in the room by her stepfather. Even in course of the stepfather removing the 'long pants' that the victim was wearing at the relevant point of time, it may not have crossed the mind of the five-year-old as to what was to come next. Further, though there is evidence of penetration and it is also the statement of the victim that her vagina got wet after she was violated, there is nothing to show the extent of penetration. 20. In the light of the material available, there is no evidence of protracted sex apart from penetration and, in such circumstances, if there had been no extended intercourse over a period of time, so to say, the injury suffered by the victim may not have been significant. 21. The judgment of conviction refers to all the relevant material. The trial court gave its due consideration to the argument put forth on behalf of the appellant. The trial Judge also took into consideration the age of the appellant and passed the sentence of rigorous imprisonment for a period of fourteen (14) years instead of the maximum that was possible. On an overall re-appreciation of the evidence and upon reading the judgment of conviction and the order of sentencing, there does not appear to be any infirmity warranting interference in this appeal. 22. Accordingly, Crl.A.No.8 of 2019 is dismissed.