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2022 DIGILAW 30 (MEG)

Trimborilin Kharbani v. State of Meghalaya

2022-03-01

SANJIB BANERJEE, WANLURA DIENGDOH

body2022
JUDGMENT Sanjib Banerjee, CJ. - The appellant assails a judgment of conviction of December 21, 2018 that found him guilty under Section 3(a) read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 and the resultant punishment. The appellant has been sentenced to suffer imprisonment for ten years and to pay a fine of Rs. 20,000/-. In default of payment of the fine, the appellant has to undergo an additional year of imprisonment. 2. In seeking to question the propriety of the impugned judgment of conviction, the appellant submits that the only basis for the conviction is the statement of the alleged victim as there was no witness and the only attempt at corroboration of the incident is through the self-serving statements of the close relatives of the alleged victim. The appellant seeks to point out that in course of his response to the questions put to him by the trial court under Section 313 of the Code of Criminal Procedure, 1973, the appellant had made out a case that there was considerable enmity between the father of the alleged victim and the appellant since the appellant had tried to dissuade the father of the alleged victim from continuing an extra-marital affair with an aunt of the appellant. 3. The appellant points out that the first information report came to be lodged more than two weeks after the incident and there was no explanation furnished in the FIR to explain the delay. The appellant says that the delay was sought to be covered up in a tutored manner in course of the testimonies of the prosecution witnesses and it is also apparent that one of the sisters of the alleged victim merely regurgitated what had been testified by another sister, without having any personal knowledge of the matter referred to in her testimony. 4. The appellant asserts that there are serious discrepancies as to the description of the incident and the course of action taken by the alleged victim and her elder sisters at the relevant time. The appellant suggests that it is inconceivable that a 14-year-old would be held by her hand and dragged out of her house after pushing a younger sister out of the way and neither the victim nor the younger sister would raise any hue or cry or make any attempt to scream. The appellant suggests that it is inconceivable that a 14-year-old would be held by her hand and dragged out of her house after pushing a younger sister out of the way and neither the victim nor the younger sister would raise any hue or cry or make any attempt to scream. The appellant reads the testimonies of the two elder sisters of the victim and says that they are at variance with the victim's own version as would appear from the victim's statement recorded under Section 164 of the Code and her oral evidence at the trial. 5. According to the appellant, the victim's version is that the appellant had visited the house where the victim, two of her elder sisters and her younger sister were staying and had spent some time talking to the eldest sister. The victim recollected that she was in the verandah outside with her younger sister when the appellant was leaving the house, whereupon the appellant noticed the victim and her younger sister, caught the victim by her hand and dragged her away after pushing back the younger sister. According to the second older sister of the victim, the victim and the youngest sister had gone out of the house to answer nature's call but the victim did not return along with the younger sister which prompted the two elder sisters to go out in search of the victim and, in course of such search, they called out the name of the victim; but could not find her and the victim returned an hour or so later. 6. What the appellant suggests is that both the versions cannot be correct and cannot co-exist. The appellant maintains that if it was the victim's assertion that she was dragged to a nearby garden, the victim would have been in a position to hear her name being called out aloud by her two elder sisters and nothing in the victim's statement under Section 164 of the Code or in her testimony in the Court indicates that the victim was gagged or could not raise an alarm or shout. The appellant submits that it is unusual that a 14-year-old girl would go missing in the dark hours of the evening and would return an hour or so later and not be immediately questioned by her elder sisters. The appellant submits that it is unusual that a 14-year-old girl would go missing in the dark hours of the evening and would return an hour or so later and not be immediately questioned by her elder sisters. The appellant claims that any person, particularly a minor, who may have resisted an attempt at being violated, would return dishevelled and with her clothes torn or out of place. The appellant submits that such appearance would obviously catch the attention of any family member, particularly when such family members had gone in search of her and had not found her earlier. The appellant suggests that a perfunctory investigation was conducted upon completely relying on the statement of the alleged victim and treating the same as gospel truth. The appellant says that though, in course of the medical examination conducted on the alleged victim, an irregular tear of the hymen was noticed and the medical examiner opined that there were signs of penetrative sex, the fact that the alleged victim did not reveal any sign of external injury would take much of the sheen off her allegations against the appellant. 7. It must be noticed at the outset that despite the vain attempt on the part of the appellant to give a twist to the tale by alleging that the father of the alleged victim bore a grudge against the appellant for the appellant seeking to intervene to end the de facto complainant's extra-marital affair with the appellant's aunt, such a case was not made out in course of the trial and no question or suggestion in such regard was put to the complainant, who was examined as PW1, or to any other witness called by the prosecution. It is elementary that when an alibi or a motive or a defence is sought to be made out, the ingredients thereof should be evident from the tenor of the cross-examination. Otherwise, independent evidence in such regard may be adduced by the defence calling its witnesses. In the absence of a case of motive being attempted to be made out at the trial, the motive sought to be attributed for the complaint being brought against the appellant at the fag end of the trial was nothing but an attempt to clutch at straws when the appellant found himself nearly drowned. 8. In the absence of a case of motive being attempted to be made out at the trial, the motive sought to be attributed for the complaint being brought against the appellant at the fag end of the trial was nothing but an attempt to clutch at straws when the appellant found himself nearly drowned. 8. The victim's father is engaged as a labourer or worker of some sort that keeps him away from his residential village for long stretches of time, extending up to a month at times. The victim was aged 14 years at the time of the incident and she also had a younger sister who was two or three years the victim's junior. The victim's mother died some nine years prior to the incident and it was customary for the four sisters, Kolita, Olibia, the victim and Darin, to live together in the absence of their father. It is also evident that upon Kolita, the eldest sister of the victim, discovering the incident some three or four days after the occurrence, she approached her aunt who advised her to wait till her father returned before lodging a complaint. Though it is contended on behalf of the appellant that such aunt was never examined or called as a witness, it does not appear that the failure to produce such aunt as a witness would affect the case in any manner. After all, the aunt was not a witness to the incident and was not even near the place of occurrence or the recipient of any information from the victim. The four sisters, all being young and unmarried, the eldest of them had approached the aunt upon discovering that the third sister had been raped a few days back, whereupon the aunt advised her that they should wait for their father's return before making the complaint. The aunt had no role to play in the scheme of things, except that she may have been in a position to corroborate or deny Kolita's version that it was the aunt who persuaded her to wait for the father to return before the complaint was lodged. 9. There was no unnatural delay between the date of occurrence and the lodging of the FIR. 9. There was no unnatural delay between the date of occurrence and the lodging of the FIR. It clearly comes out from the evidence that the victim was threatened by the appellant and that the victim had not disclosed the matter to her sisters for three or four days; but, upon Kolita coming to learn three or four days later that the victim had been dragged by her hand by the appellant a few days back, Kolita asked the victim whether she had been hurt and as to why she was dragged in such manner. It was only upon the victim being asked in such regard and being confronted with the pointed question, that the victim narrated the incident and also informed her eldest sister that she was afraid to speak of it earlier since she had been threatened to be killed by the appellant. 10. Thus, since the incident occurred on December 3, 2016 and it was discovered by Kolita on or about December 7, 2016, the fact that the family waited for the return of the patriarch before lodging the complaint through him on December 20, 2016, does not seem odd or unnatural. It must also be remembered that there is immense hesitation on the part of women victims in this country and even the families of women victims to lodge complaints of rape or sexual molestation since the women victims stand to be further ridiculed and victimised upon making the complaints. Oftentimes, particularly when the perpetrators are from the same family, the initial reaction of the male elders is to hush up the matter and convince the victim that she would be shamed if the matter came out in public. 11. Considering the circumstances, particularly the fact that the four sisters were without their father at that time and the belated discovery of the incident by the elder sister, the marginal delay in lodging the FIR would not arouse any suspicion and, in any event, the delay has been adequately explained in course of the testimonies of the sisters. 12. Two other aspects have been canvassed on behalf of the appellant. The appellant wonders why the two sets of bottom-wear that the victim claimed to have been wearing at the time of the incident were not seized or sent for any forensic examination. 12. Two other aspects have been canvassed on behalf of the appellant. The appellant wonders why the two sets of bottom-wear that the victim claimed to have been wearing at the time of the incident were not seized or sent for any forensic examination. The appellant also indicates that the victim did not allege having suffered any external injury nor did she bear any marks of external injury when the victim was medically examined a day or so after the complaint was lodged. 13. In the original statement under Section 164 of the Code, the victim had referred only to her panties being pulled down by the appellant. In course of her testimony at the trial, the victim claimed that she was asked by the appellant to take down both sets of bottom-wear - the long pants and the underwear - which she did. If the victim took down her pants and kept them aside, apart from the fact that there would be mud or grass thereon, there may not have been much to throw light on the incident even if the apparel had been seized or sent for forensic examination. If it were the statement of the victim that a part of her underwear was pulled down before she was subjected to the assault, there would be a case for seizing the underwear and sending it for forensic examination. Based on the victim's version of the incident, it does not appear that the forensic examination of the underwear would have revealed much. 14. According to the victim, she was dragged by her hand and taken out and then she was brought to a garden of a nearby house belonging to the appellant's aunt where her hands were pushed behind her back and over her head and the appellant raped her. It does not appear that the victim's arms were pinned down all the time, but what comes through is that the victim was in no position to resist or push back the appellant, even if that may have been the most natural thing to do. It is also possible that the victim may have suffered grazing injuries, but there would be no marks of any external injury that would remain for a period of two weeks since the medical examination was conducted on the victim after the FIR was lodged about 17 days after the incident. It is also possible that the victim may have suffered grazing injuries, but there would be no marks of any external injury that would remain for a period of two weeks since the medical examination was conducted on the victim after the FIR was lodged about 17 days after the incident. At any rate, the victim, a 14-year-old, no more, felt threatened and humiliated and was obviously in a state of shock which may have prevented her from shouting out; or, she may have even cried out, but the cries were beyond the earshot of any other. As to the perceived contradiction between the statements of the two elder sisters and the version rendered by the victim that the two elder sisters had gone to search for the victim and had loudly called out her name, it is possible that the two elder sisters may have gone in one direction and the victim had been dragged to the opposite direction from where neither the victim's name being called out could be heard by the victim nor could the possible cries of the victim be heard by the elder sisters. There is no light thrown on the direction that the elder sisters took when they apparently went out in search of the victim or the location of the place of occurrence. 15. Ordinarily, the version of the victim, particularly a 14-year-old, has to be seen as to whether it is tutored or laboured. In the present case, the victim's initial statement and the subsequent testimony bear a close resemblance and she did not flinch during her cross-examination and was perceived by the trial court to have truthfully made the statement. It is difficult to imagine that a conspiracy of such a large-scale could be hatched by the father of the victim along with his three daughters to make a false allegation against the appellant and go through the process in such a perfect manner. At the end of the day, it does not come out that the victim's father or the victim's siblings are educated or sophisticated or have the ability to design or carry out such an elaborate and meticulous conspiracy. 16. Clearly, on the basis of the material that was before the trial court, it was beyond reasonable doubt that the incident had taken place as the medical examination confirmed penetration and that the appellant had committed the offence. 16. Clearly, on the basis of the material that was before the trial court, it was beyond reasonable doubt that the incident had taken place as the medical examination confirmed penetration and that the appellant had committed the offence. Indeed, no attempt was made by the appellant to present any alibi or to suggest that the appellant was not present in the village or at the place of occurrence or even at the house of the victim on the relevant date. On an overall appreciation of the evidence, the trial court took relevant considerations into account to arrive at an appropriate conclusion. Neither the judgment of conviction nor the order sentencing the appellant to imprisonment and imposing the fine calls for any interference. 17. Crl.A. No. 11 of 2019 is dismissed. 18. Let a copy of this judgment and order be made immediately available to the appellant, free of cost.