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2022 DIGILAW 163 (MEG)

Pynwanbor Kharbani v. State of Meghalaya

2022-06-21

SANJIB BANERJEE, W.DIENGDOH

body2022
JUDGMENT Sanjib Banerjee, CJ. - This is a routine appeal against a judgment of conviction and the consequent order of punishment made more with a prayer and hope than with any degree of conviction. 2. The appellant herein has been convicted for the commission of an offence under Section 6 of the Protection of Children from Sexual Offences Act, 2012 and sentenced to undergo 15 years of rigorous imprisonment. In addition, the appellant has been fined Rs.20,000/-, which has to be paid to the victim. In default of the payment of the fine, the appellant is to suffer a further two months' imprisonment. 3. The judgment of conviction was passed on February 24, 2021 and the sentence was also pronounced on the same day. Though the appellant did not admit to having committed the offence, the order of sentence records in paragraph 6 that the appellant apparently pleaded for forgiveness and prayed to the court to award him the minimum sentence. 4. The incident is of September 25, 2016. It was a Sunday afternoon when the 11-year-old survivor was sent home from the church by her mother after the afternoon service so that she could get the food ready for the family meal. On the way home, the girl claimed a bull was coming from the other direction and she took a different route that would otherwise have taken her to her grandmother's place. While on such route, the minor girl met the appellant. The appellant apparently asked the girl to accompany him to his residence so that the appellant could return the umbrella that the appellant had borrowed from the grandmother of the girl. 5. According to the survivor, in course of her statement recorded under Section 164 of the Code of Criminal Procedure, 1973 and her deposition in court at the trial, a minor daughter of the appellant was with the appellant at that time. Upon reaching the appellant's residence, the appellant apparently seated his daughter in the verandah and gave her a magazine to keep her occupied. The survivor claimed that the appellant asked the survivor whether she liked him and upon the survivor indicating that she did not like the appellant, the appellant asked her a second time, grabbed her by her waist, pinned her down on the bed in the room and 'did bad thing' to the survivor. The survivor claimed that the appellant asked the survivor whether she liked him and upon the survivor indicating that she did not like the appellant, the appellant asked her a second time, grabbed her by her waist, pinned her down on the bed in the room and 'did bad thing' to the survivor. Even in the statement recorded under Section 164 of the Code, the Magistrate indicated that the survivor was hesitant in describing the actual commission of rape and only referred to the act as 'bad thing' done to her. 6. The survivor recounted that she had pain in her abdomen and upon returning home she reported the matter to her sister who promptly informed their mother. The mother also made a statement under Section 164 of the Code. In such statement she narrated that she immediately checked the private parts of the survivor and found injury marks and blood. She also described some other discharge that was present. The mother reported the matter to the father shortly thereafter and it was the common narration by both the parents of the survivor and the relevant grandmother that they went to the house of the appellant in the evening to confront him. The appellant initially denied the incident, but upon the survivor's father indicating that the truth would come out if the survivor was medically examined and if the matter was reported to the police, the appellant confessed to having committed the crime and begged for forgiveness. Such confession of the appellant was also repeated by the mother and grandmother of the survivor in course of their testimonies at the trial. 7. It appears that the relatives of the appellant persuaded the survivor's family, particularly her father, to resolve the issue through negotiation and it was the common testimony of at least three of the prosecution witnesses that three meetings were held between the members of the two families. The father of the survivor deposed that his parents or his aunt and uncle persuaded him not to compromise the matter of rape and it was only thereafter that the complaint was lodged on October 3, 2016. In course of the father's testimony in court, he revealed that he was very poor and that he could not take his daughter for immediate medical examination as the up and down fare therefor would be Rs.400/-. In course of the father's testimony in court, he revealed that he was very poor and that he could not take his daughter for immediate medical examination as the up and down fare therefor would be Rs.400/-. He also claimed that it was his parents or his elder relatives who incurred the expenses for bringing the survivor to the doctor on October 3, 2016. 8. According to the father's testimony, the survivor was straightaway taken to the local hospital whereupon, after the incident was narrated to the officials thereat, they advised the family to first lodge a complaint before they would see the survivor. It was only then that the father approached the Nongstoin Police Station with an oral complaint. At the suggestion of the personnel at the police station, the father dictated the incident to another person and signed the letter of complaint or the first information report. The FIR revealed that the incident took place on September 25, 2016 at or about 3 pm. The essential statements made in the FIR were repeated by the father in course of his statement recorded under Section 164 of the Code and his testimony at the trial. 9. The medical examination conducted on the survivor revealed that the hymen was torn and that the survivor had been subjected to recent full penile penetration as injury marks were found around the perineum. The doctor who conducted the examination deposed at the trial and claimed that no further evidence was available since the examination took place more than a week after the incident had occurred. 10. The relevant sister of the survivor in whom the survivor first confided corroborated the survivor's version. Such sister, as noticed above, immediately reported the matter to her mother and the mother's narration of the incident matched with what the survivor had to say. The mother asserted that she found injury marks on the private parts of the survivor and also found the survivor to be bleeding. 11. In course of the examination of the appellant under Section 313 of the Code, the appellant did not admit to having committed the offence nor did the appellant volunteer any information or otherwise agree with the deposition of the prosecution witnesses. At the same time, the appellant did not adduce any evidence nor did the appellant set up any alibi. 12. At the same time, the appellant did not adduce any evidence nor did the appellant set up any alibi. 12. The trial court referred to the evidence in great detail, particularly the statements of the minor survivor. The trial court found that the survivor's narration of the incident to her parents and to her sister matched the essence of her statement made under Section 164 of the Code and repeated in course of her deposition at the trial. The trial court found the survivor's statement to be eminently believable and there was no attempt on behalf of the defence to detract from such statement or arouse any suspicion in respect thereof. No attempt was made on behalf of the defence to set up any motive for the minor survivor to make a false allegation against the appellant herein. 13. Three principal grounds have been urged on behalf of the appellant in course of the present appeal. It is first contended that the story of the appellant having borrowed an umbrella on that Sunday afternoon and the appellant calling upon the survivor to accompany the appellant to the appellant's residence to carry the umbrella back was not established at the trial. According to the appellant, the relevant grandmother was not called as a witness. The appellant also asserts that no meaningful reasons were proffered for the delay in lodging of the FIR on October 3, 2016 though the incident is said to be of September 25, 2016. The appellant further points out that no member of the appellant's family or clan was called as a witness to corroborate the fact that meetings had taken place between the representatives of the two families or the two clans which lead to the delay in the FIR being lodged. 14. For a start, the minor survivor's statement appears to be spontaneous, natural and without any blemish. Not only was the narration of the circumstances leading to the commission of the offence corroborated by her father, mother and sister, but the survivor also stuck to the original version as she reported the incident to her sister and mother and as she later recorded in her statement under Section 164 of the Code. Even at the time of the trial, there was no attempt by the survivor to embellish her essential allegations. It is true that there was no eye-witness. Even at the time of the trial, there was no attempt by the survivor to embellish her essential allegations. It is true that there was no eye-witness. However, it must also be remembered that it is not the usual human conduct, however deviant the person, to commit rape or even have sex in the open. In particular, when a child is forced to sexual intercourse, almost invariably it must be in private; or it would be expected that the attempt would be resisted by any onlooker. 15. It was natural for the survivor to accompany the appellant when requested on that Sunday afternoon since the survivor was related to the appellant and it was a small chore for the survivor. The fact that the survivor had been sexually assaulted was established in course of the medical examination and the report rendered by the doctor. The doctor fully supported the report that had been presented earlier and the cross-examination of the doctor could not detract from the observations of the doctor as to the condition of the survivor or the contents of the medical report. The father, mother and sister of the survivor supported and corroborated the statement of the survivor. Most importantly, the survivor had no motive to make such an imaginary accusation against an elder relative. The manner in which the survivor described the incident to her sister first and then to her mother and father was the same manner in which she described the incident in her statement under Section 164 of the Code and her testimony at the trial. 16. Even the relevant grandmother of the survivor testified at the trial that she had lent an umbrella to the appellant at the appellant's request on the relevant Sunday afternoon. 17. From the overall evidence as was brought before the trial court, the case against the appellant was established beyond reasonable doubt. The trial court paid great attention to the details in the statements and testimonies of the prosecution witnesses and found that there was no element of defence that had been made out. In a rather long judgment, the trial court referred to several precedents as to how to read the statement of a survivor and the tests to be applied to ascertain the veracity thereof. In a rather long judgment, the trial court referred to several precedents as to how to read the statement of a survivor and the tests to be applied to ascertain the veracity thereof. The trial court was in a position to appreciate the demeanor of the witnesses and found no hesitancy on the part of the survivor as she described the incident except in the physical details of the commission of the offence. However, the girl did refer to the 'bad thing' done to her and the medical report corroborated the girl's assertion. At any rate, she was able to communicate to her sister and her parents that she had been raped by the appellant herein and such three relatives testified to such commission of the offence in the same breath. 18. Given the facts, there was very little room for the appellant to maneuver. Further, and as noticed above, though the appellant did not confess to having committed the offence, at the time of sentencing, the appellant sought forgiveness and pleaded for a less harsh sentence. 19. Upon going through the evidence that was before the trial court and reading how such evidence was dealt with in course of the judgment of conviction, there remains almost no doubt that it was the appellant herein who committed the offence on the minor survivor. 20. In the circumstances, the judgment of conviction and sentence of February 24, 2021 do not call for any interference. The commission of the offence was proved beyond reasonable doubt and the punishment followed as per the mandate of the provision. 21. Crl.A.No.6 of 2021 is dismissed. 22. Crl.M.C.No.8 of 2021 is disposed of. 23. Let an authenticated copy of this judgment and order be immediately made available to the appellant free of cost.