Research › Search › Judgment

Meghalaya High Court · body

2022 DIGILAW 115 (MEG)

Krekborlang Sawkmie v. State of Meghalaya

2022-05-12

SANJIB BANERJEE, W.DIENGDOH

body2022
JUDGMENT Sanjib Banerjee, CJ. - The appellant has been convicted under Section 4 of the Protection of Children from Sexual Offences Act, 2012 and sentenced to 15 years' imprisonment together with a fine of Rs.20,000/-. In default of payment of the fine, the appellant has to suffer a further year's imprisonment. 2. According to the minor victim then aged eight, there were three clear incidents of rape over a four-day period in the first week of June, 2013. The girl consistently maintained in course of her statement recorded under Section 164 of the Code of Criminal Procedure, 1973 and her testimony at the trial that the first incident was on a Saturday, the second incident was on the following Monday and the third incident was on Tuesday. According to the victim, on that Saturday in the first week of June, 2013, she accompanied her sister, Sita, and the sister's husband, the appellant herein, and their two-year-old daughter to a jungle at Laitlum in the hope of catching some fish. The girl narrated that while her sister Sita went on in one direction in the jungle, she, the appellant and the infant went another way and it was at such time that she was grabbed by the appellant, pushed to the ground and sexually assaulted upon her underpants being brought down. The victim even described the black underpants that the appellant wore on that day. 3. The victim recounted that she felt pain and bled and she raised a hue and cry but the same could not be heard by any person. The infant was around nearby but was too young to realise what was going on. She reported that the appellant apparently threatened to kill her if she mentioned the incident to any other person. The victim then claimed that on the following Monday the appellant called the victim to the appellant's hut which was in the vicinity of the victim's residence. The appellant apparently wanted a torch and when the victim carried the torch to the appellant's hut, she claimed that she was pinned down on the bed and raped. Again, she was threatened with dire consequences and she asserted that she was too afraid to speak of the matter. The victim recollected that on the following day she was called by her brother-in-law on the pretext of bringing a wait and, again, forced on the bed and raped. Again, she was threatened with dire consequences and she asserted that she was too afraid to speak of the matter. The victim recollected that on the following day she was called by her brother-in-law on the pretext of bringing a wait and, again, forced on the bed and raped. She reiterated that she was threatened again. 4. In the confusion that followed and the trauma that the victim must have experienced, she did not report the matter or any of the incidents to any person for some time. It appears that after a few days, she first reported the matter to another sister Shita who then informed their mother, Nianti, and the mother informed the victim's brother and other relatives. 5. Sister Shita corroborated the fact that she was the first to be informed of the incidents, whereupon she reported the matter to her mother and other relatives. In her deposition at the trial, she clearly stated that she had not accompanied the victim and the others to the jungle on that Saturday. It was clear that Shita had not witnessed any of the incidents complained of by the victim, but that the victim had first confided in Shita. Another sister, Sita, the wife of the appellant herein, also testified at the trial and she confirmed that she had gone to the jungle with her husband, their daughter and the victim on the relevant Saturday but she had gone in a different direction and did not know of what transpired with the victim on that day or on the other days that the victim reported to have been raped. The appellant's wife, however, stated that from or about the time that she came to know of the victim being sexually assaulted by her husband, she ceased to live with her husband. In course of the cross-examination, some kind of motive was attempted to be attributed, but without any success. 6. Several questions have been raised on behalf of the appellant to challenge the judgment of conviction of August 3, 2018 and the sentence that was pronounced on August 8, 2018. According to the appellant, there were serious discrepancies in the victim's version and there is considerable confusion as to when she reported the matter to her sister Shita as the victim's version in such regard is not supported by Shita's assertion in respect thereof. According to the appellant, there were serious discrepancies in the victim's version and there is considerable confusion as to when she reported the matter to her sister Shita as the victim's version in such regard is not supported by Shita's assertion in respect thereof. The appellant finds fault in the delay in lodging the complaint and seeks to obtain support from the fact that the medical examination conducted on the victim did not find any trace of 'recent sexual' activity. The appellant suggests that if an eight-year-old girl had been raped, she would show signs of injury, probably grievous injury, in her private parts. The appellant claims that the victim's assertion of the incidents implied that she was fully penetrated by the appellant. As a consequence, the appellant suggests that it is inconceivable that a fully developed adult would indulge in full penetrative sex on multiple occasions with an eight-year-old girl and there would be no sign of any injury some 15 or 20 days after the incidents. 7. The appellant also attributes ill-motive to both his wife Sita and to the wife's victim sister. The appellant refers to his wife's testimony at the trial that she separated from her husband on or about June 25, 2013, which was barely a day after the first information report came to be lodged by a brother of the victim. The appellant seeks to find fault with even the description of the appellant in the FIR. According to the appellant, since the FIR-maker was, legally, a brother-in-law of the appellant, such fact ought to have been reflected in the FIR instead of referring to the person accused therein as the son of so-and-so and not revealing the FIR-maker's relationship with such person. 8. The appellant finds it disturbing that family meetings were held after the victim allegedly reported the matter to her relatives and that the victim was also present before the appellant despite her earlier accusations against the appellant. More importantly, the appellant suggests that it would be unnatural for a victim who had been raped by a person on a Saturday to visit the hut of such person on the following Monday or, after again being raped on Monday, to go to the same hut on another chore on the Tuesday. 9. More importantly, the appellant suggests that it would be unnatural for a victim who had been raped by a person on a Saturday to visit the hut of such person on the following Monday or, after again being raped on Monday, to go to the same hut on another chore on the Tuesday. 9. The appellant submits that since the victim complained of having been raped on all three occasions and of having bled in her private parts on at least one or two of such occasions, the blood stains on her person and apparel ought to have been noticed by other family members and the victim's trauma may have been too much for her to hide from her relatives. The appellant says that no attempt was made to seize the victim's clothes or even her undergarments to ascertain whether there was any indication therefrom of the commission of the offence as complained of. 10. There is no basis to any of the grounds canvassed on behalf of the appellant. For a start, the eight-year-old victim was consistent in the statements which she rendered and the basic features remained constant. The minor discrepancy was in the victim's indicating when she may have first confided in her sister Shita. Even if there is some discrepancy in such regard - which there does not appear to be - nothing would turn on such aspect of the matter. 11. As the trial court rightly referred to the principle upon relying on Supreme Court judgments, that for a discrepancy to be material, the divergence had to be in the basic story and not in the details. The basic story here was that an eight-year-old girl had been ravished first when she was in the jungle on a Saturday and then again on Monday evening and Tuesday evening. She described the circumstances on each occasion and the fact that she had been threatened by the appellant that she would be killed if she reported the matter to any person. 12. It is true that the appellant's wife, Sita, may have been some distance away and did not witness what happened in the jungle on that Saturday in early June of 2013. But what is of importance is that in Sita's mind she had no doubt that her little sister was truthful in her complaint. 12. It is true that the appellant's wife, Sita, may have been some distance away and did not witness what happened in the jungle on that Saturday in early June of 2013. But what is of importance is that in Sita's mind she had no doubt that her little sister was truthful in her complaint. It is not an easy decision for an Indian woman, particularly in the villages, to break away from her husband, especially when there is a young child to also care for. But the wife of the appellant in this case found substantial merit in her younger sibling's assertion to assert in her testimony at the trial that she had unilaterally severed her relationship with her husband. The wife's reaction is justifiable as no reasonable wife would continue to share any space or bed with a husband who is said to have raped the minor sister of his wife. 13. The medical examination conducted on the victim revealed that her hymen was torn. A longitudinal tear was reported. However, no signs of other injures were indicated and the medical examiner opined that there were no signs of 'recent sexual' activity. There may have been some confusion if the medical practitioner had not testified at the trial and indicated precisely what was meant by the word 'recent'. It comes out from the deposition of the medical practitioner that since the matter was reported to the police some three weeks or so after the incidents took place, the opinion rendered was that there were no signs of recent sexual intercourse. In other words, the medical practitioner found no signs of penetration in the vagina of the victim in the few days prior to the examination. The use of the word 'recent' was clarified and it did not imply that 'recent' would cover a tenure of several months, but was confined to a period of about two or three weeks. 14. Much is made by the appellant of the medical practitioner's acceptance that the hymen may be torn in course of other activities and may not necessarily be as a result of penetrative sex. There is no doubt that when a girl is given to vigorous exercises or riding or the like, the hymen may tear. 14. Much is made by the appellant of the medical practitioner's acceptance that the hymen may be torn in course of other activities and may not necessarily be as a result of penetrative sex. There is no doubt that when a girl is given to vigorous exercises or riding or the like, the hymen may tear. But there is no evidence to the effect that the activities undertaken by the victim in this case would be consistent with the victim having torn the hymen in course thereof. 15. What counts at the end of the day is the credibility of the allegations levelled by the victim and the manner of the presentation thereof. The trial court found that the allegations were genuine and there was no motive that the girl child had to falsely implicate her sister's husband in the commission of such a heinous offence. The trial court referred to several judgments of the Supreme Court, including one where it was observed that though the object of the exercise was to ensure that no innocent person was unfairly punished, it would not do for an accused to be let off when a clear case had been made out against him. 16. The trial court also dwelt on the other legal aspects, including the amount of weightage that could be given to the victim's statement in such a case when there was no other ocular evidence to corroborate the allegations. The trial court read the entirety of the evidence, sifted the hearsay from the material and relied on the testimonies of some of the other relatives of the victim who were called as witnesses only for the purpose of ascertaining when they came to know of the incidents and what they knew thereof. On either count, the trial court found that the victim's assertions stood corroborated, though there were the usual minor discrepancies which could not detract from the basic version of the incidents rendered by the victim. The appellant has not been able to make a dent in the prosecution version as accepted by the trial court. There was no reason that the appellant could bring out as to why his eight-year-old sister-in-law would bring a wild accusation against him despite the appellant and his wife being close enough with such sister-in-law to be able to go fishing or looking for plants together in the jungle. There was no reason that the appellant could bring out as to why his eight-year-old sister-in-law would bring a wild accusation against him despite the appellant and his wife being close enough with such sister-in-law to be able to go fishing or looking for plants together in the jungle. The appellant did not attempt to make out any defence even after the substance of the evidence against him was explained to him by the trial court in course of the appellant's examination under Section 313 of the Code. The appellant stuck to the routine answer that the appellant had not committed the offence and that the allegations levelled against him were untrue. 17. There is no doubt that, ideally, the victim's garments should have been seized and forensically examined. However, apart from the fact that an Indian judge has always to deal with tardy investigation, two other things have to be kept in mind: the first is that the village girls do not wear fresh clothes everyday and may continue to wear the same clothes for days; and, secondly, the matter was reported to the police nearly three weeks after the incidents. As to what impelled the child to go to the appellant's hut on the Monday and Tuesday following the initial jungle incident on Saturday, it is difficult to get into the mind of a person - whether a victim or an accused - as to why they did what they are alleged to have done. But since the argument has been made, an attempt at an answer must be made without prejudice to the primary premise that it is not for the court to gage the mental make-up of a person. 18. Here was a girl who had been raped by a dear relative and she had been threatened to be killed if she revealed the matter to anyone. There is no doubt, as the acts that followed would confirm the same, that the primary motive of the appellant to ask for a torch on the Monday evening and for a wait on the Tuesday evening was to create a ruse to ensure that the victim came to his hut when it was dark and he was alone there. There is no doubt, as the acts that followed would confirm the same, that the primary motive of the appellant to ask for a torch on the Monday evening and for a wait on the Tuesday evening was to create a ruse to ensure that the victim came to his hut when it was dark and he was alone there. If the victim was close to the torch or the wait was near the victim and, in the usual course, it would have been the victim who would unhesitatingly run the chore, the victim could not have been declined it on either occasion or she may have been forced to reveal her fear and, consequently, narrate the earlier incident or incidents to others nearby. On both the Monday and Tuesday, it was in the evening and the other relatives must have been nearby for the victim to have done what was expected of her in the usual course, particularly in the light of the threat meted out to her by the appellant that she would be killed if others found out what the appellant had subjected her to. 19. Further, and notwithstanding the appellant's contention to the contrary, nothing that the victim said would suggest that she claimed that the appellant had inserted the entirety of his male organ into her. 20. There is a final aspect to the matter. It appears that the appellant was produced before an Executive Magistrate for recording a confessional statement. It was the same Magistrate before whom the victim had recorded her statement. The relevant Magistrate was examined at the trial. It appears that upon time being afforded to the appellant to reflect as to whether he would make any confessional statement, the appellant claimed before the relevant Magistrate that he had been falsely implicated and that some other person, whom the appellant named, had committed the crime. 21. While it is true that the appellant did not admit to having committed the offence, the other feature of the appellant's statement may not be lost sight of. The appellant made a clear allegation against the named person. That was also a part of the appellant's statement. 21. While it is true that the appellant did not admit to having committed the offence, the other feature of the appellant's statement may not be lost sight of. The appellant made a clear allegation against the named person. That was also a part of the appellant's statement. Having made such statement, it was incumbent on the appellant to try and justify the same or bring any evidence in such regard so as to deflect the accusation from the appellant or even introduce the possibility of the relevant named person having committed the crime. The appellant completely failed to discharge the onus that he brought upon himself by naming an alternative offender. 22. In the light of the credible evidence of the victim and her clear description of the three incidents which came in quick succession in early June, 2013 and the appellant's failure to suggest any alibi or have any plausible answer, the trial court was perfectly justified in finding the appellant guilty. The material before the trial court clearly made out a case against the appellant that was beyond reasonable doubt. 23. As a consequence, the judgment of conviction of August 3, 2018 and the sentence pronounced thereupon on August 8, 2018 do not call for any interference. 24. Crl.A.No.3 of 2021 is dismissed. 25. Let a copy of this judgment be immediately made over to the appellant free of cost.