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2022 DIGILAW 192 (MEG)

Arjun Diya v. State of Meghalaya

2022-07-20

SANJIB BANERJEE, W.DIENGDOH

body2022
JUDGMENT Sanjib Banerjee, CJ. - The appellant has been convicted for having committed an offence punishable under Section 376(2)(f), (i) and (n) of the Indian Penal Code, 1860 read with Section 6 of the Protection of Children from Sexual Offences Act, 2012. Following the judgment of conviction of December 11, 2019, the appellant was sentenced to undergo rigorous imprisonment for 10 years and fined Rs.50,000/- by an order of December 31, 2019. In default of the payment of the fine, the appellant is to undergo simple imprisonment for a further six months. 2. The principal ground urged on behalf of the appellant is that there was no material to corroborate the wild allegations of the 13-year-old survivor and the discrepancies between her initial statement recorded under Section 164 of the Code of Criminal Procedure, 1973 and her testimony in Court were too stark to be overlooked or ignored by the trial court. In addition, it is contended on behalf of the appellant that contrary to what was recorded in the first information report that the appellant had confessed to the commission of the offence before the Dorbar Shnong, there was no allusion to such confession by the headman of the village and, indeed, the headman testified that he had no inkling as to whether the appellant had committed the offence or not. 3. The third ground canvassed by the appellant is that the survivor bore a grudge against the appellant as the survivor testified that the appellant did not love her and the appellant was given to assaulting the survivor and the survivor's mother upon being drunk. 4. The appellant appears to be the step-father of the survivor, though it does not come out through clearly whether the appellant had married the survivor's mother or the appellant and the survivor's mother were living-in together. The FIR, which was lodged by the brother of the survivor's mother, referred to an incident that took place on October 23, 2016. The FIR, which was written in hand by the maker himself, referred to the village Dorbar having caused an inquiry into the incident whereupon the appellant had apparently admitted that he had committed the offence and the village Dorbar decided to hand over the matter to the police. 5. The FIR, which was written in hand by the maker himself, referred to the village Dorbar having caused an inquiry into the incident whereupon the appellant had apparently admitted that he had committed the offence and the village Dorbar decided to hand over the matter to the police. 5. In her statement recorded under Section 164 of the Code, the survivor referred to the first incident when she was washing utensils outside her house and her step-father carried her inside the house, laid her down on the bed, spread her thighs and inserted his penis inside her vagina while he put a dao down by her head. The survivor claimed that her younger sister, who was then aged about five, saw the incident. According to the survivor, after the appellant had finished with the survivor, he asked the survivor to cook for the appellant. 6. The survivor also narrated that on another occasion, on a Sunday, while the survivor was returning with water that she had gone to fetch, 'my step-father came and took the vessel away from my head and laid me down near the river and raped me.' 7. In course of her testimony at the trial, the survivor referred to a third incident of the appellant raping the survivor by the river when they had gone fishing at the Umtyngieng River. Apart from the clear description of the two incidents that she referred to in her statement under Section 164 of the Code, she made an additional claim pertaining to the third incident. Much is sought to be made out on behalf of the appellant regarding the third incident reported by the survivor only in court and not in her original statement. It is also pointed out on behalf of the appellant that the survivor had also responded to a question put to her in her cross-examination that when she had gone fishing with the appellant 'there were many people near the river.' 8. The appellant contends that there was no ocular evidence to corroborate the survivor's allegations. The appellant refers to the detailed medical examination report where the appellant finds nothing of note. The appellant contends that there was no ocular evidence to corroborate the survivor's allegations. The appellant refers to the detailed medical examination report where the appellant finds nothing of note. However, though the forensic examination of the clothes and the swabs taken may not have revealed anything, the physical examination of the survivor revealed that the survivor's hymen was ruptured and she had been subjected to sexual intercourse as the vaginal orifice was sufficiently extended. Despite such damning finding, the appellant seeks to wish it away without the slightest attempt of suggesting how a 13-year-old girl was found in such physical condition. 9. The medical expert who conducted the medical examination on the survivor testified that he had merely recorded the narration of the two incidents of rape by the survivor. Such medical person corroborated that the survivor's hymen was ruptured and the survivor had been subjected to penetrative sex. However, the expert did not find any mark of injury on the person of the survivor nor did the samples sent for forensic examination throw any additional light on the matter. 10. Some of the other witnesses on behalf of the prosecution had little or nothing of note to say on the matter. The mother of the survivor claimed that she had not been told of any incident of rape by the survivor herself. This part of the mother's statement was also corroborated by the survivor though the survivor claimed that her younger sister had reported one of the incidents to the mother. It also comes out from the testimony of the survivor that the survivor was scared of the appellant herein since the appellant was of violent nature and had also threatened her with a dao. The survivor claimed that though she may have cried while she was violated by the appellant, she did not raise any alarm as she was afraid of the appellant. She also indicated that there was no other person within the vicinity of the places of occurrence at the relevant times; though in respect of the fishing expedition, she mentioned that there were others near the river at the time that they had gone for fishing. However, the survivor's testimony in such regard has to be seen in the proper perspective. She truthfully said that when her step-father and she reached the fishing venue, there were other people around. However, the survivor's testimony in such regard has to be seen in the proper perspective. She truthfully said that when her step-father and she reached the fishing venue, there were other people around. But that would not imply that she was raped in the presence of other people by her step-father. 11. Though the investigating officer, examined as PW8, claimed that the appellant had confessed before him, such matter cannot be taken notice of as there was no confessional statement recorded before any Magistrate by the appellant in this case. 12. In response to the queries put to the appellant in course of the examination under Section 313 of the Code, the appellant merely denied all the evidence against him except in one case. When the trial judge put it to the appellant that the appellant had admitted to having committed the offence before the village Dorbar, the appellant denied having made any admission or confession in such regard. 13. There is no doubt that this is a case where everything hinges on the statement made by the survivor and the appellant's complete denial thereof. However, there are certain aspects which cannot be missed. For a start, there was no alibi attempted to be set up by the appellant. Secondly, no motive was sought to be attributed to the survivor for making a false accusation. At the same time, it may be remembered that the argument on behalf of the appellant at this stage is that the fact that the appellant scolded the survivor regularly or may have assaulted the survivor's mother after being drunk may have been the reason that impelled the survivor to make up a false accusation. Most importantly, if the appellant had not committed the crime, the appellant would have asserted so in course of the meeting before the village Dorbar. Although the appellant may not have made any admission before the village Dorbar, the village Dorbar found sufficient material in the statement of the minor survivor to refer the matter to the police. 14. The survivor in this case appears to be uneducated, coming from a humble background and used to the rustic way of life. Though her statement recorded under Section 164 of the Code was short, she clearly brought out the commission of the offence by her step-father. 14. The survivor in this case appears to be uneducated, coming from a humble background and used to the rustic way of life. Though her statement recorded under Section 164 of the Code was short, she clearly brought out the commission of the offence by her step-father. The two incidents referred to in her statement recorded under Section 164 of the Code were repeated without any embellishment in course of the trial and a third incident also also covered in course of such testimony. The survivor remained unfazed in the face of quite lengthy cross-examination and nothing that she said in her cross-examination would detract from the essence of her accusation against her step-father. At least the two incidents that she referred to in her initial statement stand almost uncontroverted in the absence of the appellant herein setting up an alibi or establishing a motive for false accusation or otherwise questioning the credibility of the survivor or the accuracy of her statement. Incidents such as the ones complained of by the survivor in this case take place away from the public glare as the offender would be wary of committing such offence within the eyesight or earshot or any other. It is for such reason that even if the only material against an accused is the testimony of the survivor, such testimony is not discarded merely because it is not corroborated by any other material. 15. Oftentimes, in such a scenario it is for the defence to pick holes in the statement or debunk the story made out by the accuser rather than seeking corroboration of what is said by a minor survivor. 16. There is no doubt that the minor survivor did not indicate the exact dates of the incidents, whether in her initial statement under Section 164 of the Code or in her oral evidence at the trial. However, the FIR clearly made out the date of one of the incidents to be November 23, 2016. It was, in such circumstances, incumbent on the appellant to indicate where the appellant may have been or what the appellant may have been doing at or about the indicative time on the relevant day. 17. However, the FIR clearly made out the date of one of the incidents to be November 23, 2016. It was, in such circumstances, incumbent on the appellant to indicate where the appellant may have been or what the appellant may have been doing at or about the indicative time on the relevant day. 17. In the appellant's failure to make any attempt to establish that he may not have been at the place of occurrence at the relevant time or may have been elsewhere or that the appellant may have been engaged in some other activity at such time, the presence of the appellant in the company of the survivor is established. It is then the survivor's word against the appellant's bare denial thereof. Here again, in the absence of any motive being attributed to the survivor for falsely implicating the appellant, there is little room to doubt the quite believable account of the incidents by the minor survivor, particularly taking into consideration her limited ability to express herself and her agony of re-living the trauma of those moments that may continue to haunt her for the rest of her life. 18. Based on the material that was before the trial court and the abject failure on the part of the appellant herein to raise any tenable ground to disbelieve the statement of the minor survivor or detract therefrom, the trial court was justified in finding the appellant guilty. At the end of the day, the appellant was the step-father or in the position of the step-father qua the survivor; and rather than protecting the minor survivor, the appellant preyed on the minor girl. The trial court read the evidence in the proper perspective as the testimonies of the other witnesses except the survivor and the medical expert may not have been relevant in the context. At any rate, the testimonies of the other witnesses did not raise any doubt as to the veracity of the statement of the minor survivor. 19. Upon the trial court being satisfied of the commission of the offence, the appropriate punishment has been awarded. Accordingly, the judgment of conviction of December 11, 2019 and the sentence passed as a consequence on December 31, 2019 do not call for any interference. 20. Crl.A.No.5 of 2022 is dismissed. 21. 19. Upon the trial court being satisfied of the commission of the offence, the appropriate punishment has been awarded. Accordingly, the judgment of conviction of December 11, 2019 and the sentence passed as a consequence on December 31, 2019 do not call for any interference. 20. Crl.A.No.5 of 2022 is dismissed. 21. Let an authenticated copy of this judgment and order be immediately made available to the appellant free of cost.