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2022 DIGILAW 65 (MEG)

Charming Rupon v. State of Meghalaya

2022-03-29

SANJIB BANERJEE, W.DIENGDOH

body2022
JUDGMENT Sanjib Banerjee, CJ. - The appellant has been convicted under Section 6 of the Protection of Children from Sexual Offences Act, 2012 and sentenced to ten years' rigorous imprisonment with a fine of Rs.1 lakh. In default of payment of the fine, the appellant has to suffer further simple imprisonment for five months. 2. The principal ground urged by the appellant is that the appellant was not sufficiently identified as the offender or even being present at the place of occurrence at the time that the offence is said to have been committed. In particular, the appellant refers to the statement of the victim to the effect that it was the victim's mother who named the appellant to the victim; the fact that the relationship that the victim described as between the victim and the appellant was completely incorrect; and, most importantly, the retraction by PW 2 in course of her re-examination after having initially said that shortly after the incident occurred, PW 2 had seen the victim and the appellant having kwai. 3. The other major ground raised by the appellant is that there was a perfect alibi set up by the appellant and three other witnesses along with the appellant testified to the fact that for most of the day on May 28, 2015, particularly during the afternoon and evening of that day, the appellant was at Saipung village, which is at least a three hours' drive from the appellant's village of Shnongrim in the East Jaintia Hills District. Shnongrim and Lum Bangla Nongkhlieh, where the victim resides, are neighbouring villages. According to the appellant, little or no reason has been indicated in the impugned judgment of December 7, 2021 as to why the testimonies of the defence witnesses were disregarded despite the three others called to the witness box by the appellant corroborating the appellant's version of where the appellant was and what he was doing on May 28, 2015. 4. A further point made on behalf of the appellant is that there is no explanation as to why the First Information Report was lodged on June 8, 2015 despite the incident having allegedly occurred on May 28, 2015. It is also pointed out on behalf of the appellant that in the format of the FIR as prevalent in this State, there is a column for indicating the reasons for the delay in lodging the FIR. It is also pointed out on behalf of the appellant that in the format of the FIR as prevalent in this State, there is a column for indicating the reasons for the delay in lodging the FIR. In the present case, despite the FIR being lodged some 11 days after the incident, no explanation in such regard was furnished at the relevant time. 5. The appellant asserts that there is no credible version of any witness having seen the appellant in the victim's village or thereabouts at or about the time that the incident occurred. The appellant maintains that if the FIR-maker - the mother of the victim - had, indeed, seen the appellant lurking around her residence shortly before the alleged incident took place, in the normal course, it would be expected of her to indicate at the very first instance that she had seen the appellant around her house shortly prior to the incident. The appellant places the statement recorded under Section 161 of the Code of Criminal Procedure, 1973 by the investigating officer immediately after receiving the FIR, wherein there is no mention of the mother of the victim claiming to have seen or noticed the appellant outside her residence shortly before the incident occurred. While on the evidence of the victim's mother in course of the trial, the appellant goes back to such witness' initial statement recorded under Section 161 of the Code to suggest that she made up a story subsequently by introducing a few allegations to embellish her original statement and to falsely implicate the appellant. Towards such end, the appellant demonstrates from the testimony of the mother that she claimed that a day after the incident, she was informed of the same by her 15-year-old niece, who deposed as PW 2, upon the victim apparently disclosing such fact to PW 2. However, the mother testified that when she asked the victim, the victim did not speak of the incident and, as such, she did not believe her niece and did not take any immediate action. The mother went on to say in her evidence at the trial that on June 7, 2015 (wrongly printed as July 6, 2015) she met a school-teacher of the victim who reported to her that the victim had claimed that she had been raped by the appellant herein. The mother went on to say in her evidence at the trial that on June 7, 2015 (wrongly printed as July 6, 2015) she met a school-teacher of the victim who reported to her that the victim had claimed that she had been raped by the appellant herein. The mother testified that it was only upon the school-teacher reporting the incident that she decided to lodge a complaint. 6. Since it is the mother's evidence which is crucial in this case, the appellant dwells further on such evidence and says that at one place the mother claims that she was not at home on the relevant date whereas elsewhere she claims that she saw the appellant plucking leaves from her garden at around 4 pm. The appellant contends that if it was the mother's case that she had gone to Sutnga to drop her brother's child home, she could not have been around at 4 pm to have seen the appellant in her garden. The appellant also seeks to point out the apparent unnatural conduct of the mother when she claimed that she returned home late at night, after dropping her brother's child, but was not perturbed to find that the victim was not at home. In short, the appellant suggests that the entire saga of the mother having seen the appellant herein anywhere near her residence on May 28, 2015 is a figment of the mother's imagination and devised to falsely implicate the appellant. The appellant insinuates that a failed marriage between some unconnected members of the two families may have been the grudge factor that motivated the victim's mother to wreak vengeance on the appellant. 7. The appellant is quick to submit that it is possible that the minor girl may have been raped in the late afternoon of May 28, 2015, but the appellant maintains that the appellant was nowhere near the place of occurrence at the relevant point of time for it to have been possible for the appellant to commit the offence. The appellant refers to the report rendered on or about June 9, 2015 upon the victim being medically examined. In the statement of the victim recorded by the medical practitioner, the victim appears to have said that 'A man' had raped her, but had not identified the appellant. The appellant refers to the report rendered on or about June 9, 2015 upon the victim being medically examined. In the statement of the victim recorded by the medical practitioner, the victim appears to have said that 'A man' had raped her, but had not identified the appellant. Similarly, the appellant refers to the report furnished by the gynaecologist, who confirmed that the minor girl's hymen was torn and there were signs of recent forceful vaginal penetration and that sexual violence could not be ruled out, but did not refer to the victim naming the appellant as the offender. 8. The appellant reads the oral evidence of the victim and her admission that the identity of the appellant was disclosed to the victim by her mother. The appellant contends that it is in such light that the victim's initial statement of June 8, 2015 rendered under Section 161 of the Code should be read, where she apparently named the appellant. It is the further suggestion of the appellant that the subsequent statement of the victim before a Magistrate under Section 164 of the Code must also be read in the context of the victim's admission that the name of the appellant was put into the victim's head by her mother. 9. At this stage, it is necessary to see the evidence of PW 2, the 15-year-old cousin of the victim, who claimed in her examination-in-chief that she saw the victim and the appellant herein having kwai shortly after the time of the incident; but, upon re-examination, she clarified that she had seen the victim and a man having kwai and it was incorrect of her to have said that the man was the appellant herein. Such retraction was close on the heels of PW 2 having failed to identify the appellant, who was present in court, in course of her cross-examination. 10. According to the investigating officer, who was examined as PW 7, he arrested the appellant herein from the appellant's village a day after the FIR was lodged. The officer claimed that the appellant had confessed to having committed the crime in course of the statement given to such officer; but such statement or the purported admission therein cannot be taken notice of. Indeed, several questions arise upon the investigating officer's assertion that the appellant had confessed to having committed the offence. The officer claimed that the appellant had confessed to having committed the crime in course of the statement given to such officer; but such statement or the purported admission therein cannot be taken notice of. Indeed, several questions arise upon the investigating officer's assertion that the appellant had confessed to having committed the offence. In such a scenario, the best course of action ought to have been to refer the appellant herein to a Magistrate for the admission to be recorded under Section 164 of the Code for it to have any evidentiary value. It does not appear that the investigating officer did anything more than to conduct a tardy investigation and file a charge-sheet in the hope that something may come out of it. In most cases of the present kind, an accused is successful merely because of the sloppy and negligent investigation that has been conducted and the abject failure of the investigating officer to show any degree of imagination or diligence. 11. Ordinarily, it is incumbent on the prosecution to affirmatively establish the identity of the perpetrator of the crime. In the present case, the appellant herein was named in the FIR and in the immediate statements made thereupon by both the victim and the victim's mother. In was only later that it transpired, in course of the victim's testimony at the trial, that the name of the appellant was introduced to the victim by the victim's mother. Considering the material that was before the investigating officer and the fact that no real case of an alibi was attempted to be made out before the investigating officer by the appellant herein, the failure to conduct a test identification parade may be condoned as, prior to the matter progressing to trial, there appeared little doubt as to the identity of the perceived offender. 12. Even though the mendacity of the positive case attempted to be made out by an accused has to be delinked from the positive case that has to be made out against him by the prosecution, when an alibi is sought to be set up and the case attempted to be made out in support thereof seems to be completely incredible, there is a negative impact that it has on the overall appreciation of the matter. 13. 13. In this case, it was the unequivocal assertion of the victim's mother, albeit at the trial, that shortly prior to the mother leaving her residence to drop her brother's son at Sutnga, she noticed the appellant in her garden plucking leaves from a tree. The mother went on to indicate that there was no interaction between the appellant herein and the mother as the appellant made no attempt to enter the house. Despite the elaborate cross-examination of the mother, it does not appear that any suggestion was put to the mother to the effect that the mother did not see, or could not have seen, the appellant in her garden at or about 4 pm on May 28, 2015. In a sense, in the absence of any contradiction of such statement in course of the mother's oral evidence, there is an element of admission thereof that fastens to the appellant. 14. And, in the appellant's attempt to discredit such statement and make it appear that it was impossible for the appellant to have been spotted or sighted anywhere near village Lum Bangla Nongkhlieh or even Shnongrim on the relevant day, the appellant spun a yarn of having visited Saipung village and having allegedly spent the better part of the day at Saipung village, at least from or about noon to beyond 7 pm. 15. Contrary to the appellant's submission that the trial court disregarded the evidence of the appellant and the three other witnesses called by the appellant, there is copious reference to such aspect in the impugned judgment. Indeed, the key feature that robbed the entire story of alibi of any element of credibility, was the question put by the Court as to whether the document of sale alleged to have been executed at Saipung on that day, with much fanfare and with witnesses in tow, had been registered or not. Though a feeble attempt has been made at the hearing of this appeal to suggest that it is not customary here to have documents registered or that even prior to registration, an elaborate process is followed by executing the documents for sale proposed to be registered, there is no evidence in such regard. If there is any custom or practice, it has to be proved upon adducing cogent evidence in support thereof. 16. If there is any custom or practice, it has to be proved upon adducing cogent evidence in support thereof. 16. What is apparent is that in the appellant's desperate attempt to remove the possibility of the appellant's presence from the place of occurrence, a long story was made out with known acquaintances of the appellant that was too good to be true and has been rightly disbelieved by the trial court upon indicating valid reasons therefor. 17. What is then left is that the appellant was seen around the residence of the victim shortly before the incident is said to have occurred. What is further apparent is that the victim's 15-year-old cousin, later examined as PW 2, saw the victim and a man having kwai at the victim's residence shortly after the incident. What has also come through is that the victim first complained to her cousin with whom she spent the night on May 28, 2015 that she had been raped and, later, she also reported the incident to a teacher in school who drew the notice of the mother to it on June 7, 2015, prompting the mother to lodge the complaint on the following day. 18. On the basis of the material available, what is undeniable is that the incident took place. The medical examination of the victim, even though conducted some 12 days after the incident, revealed a torn hymen together with fresh oedema, congestion and tenderness in the vagina. These were the tell-tale signs of the victim having suffered penetrative sexual assault. What remains to be looked into is whether the appellant may be connected to the incident. 19. There is no doubt that both the victim and the victim's cousin failed to identify the appellant herein at the time of the trial. As far as the victim's cousin is concerned, it could be a case of imperfect recollection or hazy memory which also prompted her to retract her statement given in the examination-in-chief in course of her re-examination. However, the only jarring note that is left is the victim's failure to identify the appellant in court. Ordinarily, when a person suffers the trauma that is rape, even if such person is a minor, the memory would haunt the victim for a long time and come back continuously as a nightmare. However, the only jarring note that is left is the victim's failure to identify the appellant in court. Ordinarily, when a person suffers the trauma that is rape, even if such person is a minor, the memory would haunt the victim for a long time and come back continuously as a nightmare. In such a scenario, it is difficult to imagine or accept that the victim would not be able to remember the face of the perpetrator, when there was no evidence to the effect that the victim's face had been covered or that she was unable to see the offender at the time that the crime was committed. 20. In the present case, the victim was a special child and her mother asserted that from the time when she was six, she was under treatment and even though the victim was made to go to school, she would respond very little and not have much to say. Though the trial court found that the victim was good enough to testify as to the incident, it is not unnatural to expect a person which such disability to have a somewhat foggy memory or to not have the same experience of the trauma as the so-called normal person would. The more important point is that the victim was aware of the offender, notwithstanding the fact that the victim may have erroneously indicated the nature of the relationship between the victim and the offender. Even though the victim admitted - which admission should be somewhat diluted because of her condition - that it was her mother who may have mentioned the name of the appellant to her, it is difficult to imagine that with the mental condition that the victim suffered from, she would consistently name the appellant upon being merely tutored or as if she bore a grudge for some other reason. The victim's testimony comes through as that of a troubled child, inconsistent in parts, missing in some details, but genuine at its core. 21. It is true, as the appellant suggests, that the school-teacher in whom the victim confided, ought to have been called as a witness. The victim's testimony comes through as that of a troubled child, inconsistent in parts, missing in some details, but genuine at its core. 21. It is true, as the appellant suggests, that the school-teacher in whom the victim confided, ought to have been called as a witness. There is equally no doubt that another local lady, who made a statement to the investigating officer to the effect that the victim did not identify the appellant herein when she narrated the incident to her, should also, in all fairness, have been invited to the witness box. However, that would have made for a perfect prosecution case, which is hardly ever found. But the key question is whether there is a reasonable doubt that though the victim may have been raped at the time that she later claimed, it may not have been the appellant herein who committed the crime. On an overall appreciation of the evidence that was presented, there does not appear to be any reasonable doubt as to the presence of the appellant at or about the place of occurrence at a time proximate to the incident taking place. In such context, when it is abundantly clear that the appellant was no stranger to the victim, the twin facts that the victim consistently named the appellant as the offender and the preposterously false alibi set up by the appellant leaves no room for any reasonable doubt as to the identity of the offender. 22. As to the perceived delay in lodging the FIR, the evidence of the mother of the victim provides sufficient explanation. Though the victim narrated the incident to her cousin, the PW 2, and such cousin, in turn, reported the matter to the victim's mother a day after the incident, the mother claimed that the victim did not speak of the incident when the mother asked her and, as such, the mother did not pay much attention to her niece's statement. It must be remembered that the victim was a reticent child and, unlike a normal kid of her age, who would have felt the pain and discomfort and may have pointed out the same to her mother, the victim's condition inhibited her from so doing. It must be remembered that the victim was a reticent child and, unlike a normal kid of her age, who would have felt the pain and discomfort and may have pointed out the same to her mother, the victim's condition inhibited her from so doing. The mother's version rings true when she says that she only took serious note of the matter upon the victim's school-teacher also reporting to her of the victim having informed her of the incident. The FIR came to be lodged the very next day after the school-teacher reported the matter to the victim's mother. There was no unnatural or unexplained delay, in the circumstances. 23. One last aspect remains to be discussed even though, for reasons not difficult to comprehend, such area has not been a part of the appellant's focus in the appeal. It, however, remains the duty of the appellate court to look into all features, particularly when the issue pertains to the liberty of a citizen. The offence that the appellant was charged with and convicted of was under Section 6 of the Act which pertains to aggravated penetrative sexual assault and it is distinct from the penetrative sexual assault covered by Section 4 of the Act. 'Aggravated penetrative sexual assault' is defined in Section 5 of the Act. Clause (k) under Section 5 of the Act provides that 'whoever, taking advantage of a child's mental or physical disability, commits penetrative sexual assault on the child is said to commit aggravated penetrative sexual assault.' As noticed above, the victim here was no stranger to the appellant herein and the appellant must have known of the victim's mental disability. In such circumstances, the act was more heinous than an offence under Section 4 of the Act and covered by Section 6 thereof. However, since the minimum term in Section 6 of the Act, as it is stood on the date of the commission of the offence, provided for 10 years' imprisonment, it is such punishment which has been handed down to the appellant herein. 24. For the reasons aforesaid, the judgment of conviction dated December 7, 2021 does not call for any interference. The punishment, in the context, seems to be well deserved. Accordingly, Crl.A.No.3 of 2022 along with Crl.M.C.No.5 of 2022 are dismissed without interfering with the judgment of conviction or the sentence imposed on the appellant herein. 25. 24. For the reasons aforesaid, the judgment of conviction dated December 7, 2021 does not call for any interference. The punishment, in the context, seems to be well deserved. Accordingly, Crl.A.No.3 of 2022 along with Crl.M.C.No.5 of 2022 are dismissed without interfering with the judgment of conviction or the sentence imposed on the appellant herein. 25. Let a copy of this judgment be immediately made available to the appellant free of cost.