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2022 DIGILAW 99 (MEG)

Sujit Debnath v. State of Meghalaya

2022-04-25

SANJIB BANERJEE, WANLURA DIENGDOH

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JUDGMENT Sanjib Banerjee, CJ. - This appeal brings to the fore the plight of minor victims who are sexually abused and the shoddy investigation that is undertaken as a result whereof the victim is virtually put on trial. 2. In the present case, a 13-year-old girl who was under the care of a woman and her husband ran away to a neighbour and was found by the neighbour in a distressed state whereupon the neighbour took the girl to the neighbour's daughter and, despite the entreaties of the neighbour and the neighbour's daughter, the girl refused to return to the house of her foster parents or even narrate the details of how she may have been mistreated at her foster parents' place for her not to want to return there. It was only after several weeks that the girl felt comfortable and she opened up and indicated that she had been raped by her foster father, whereupon the relevant neighbour's daughter lodged a first information report and took the pains to carry the girl to the women's cell of the police in Jowai where the girl was kept under the custody of the State. 3. According to the victim, she was raped by her foster father on July 4, 2013. The FIR was lodged at Umkiang Police Station on August 5, 2013. There was no use of her clothes or apparel being seized at that stage, since considerable time had elapsed. The medical examination conducted on the victim did not find any injuries, but reported that her hymen was found to be torn. 4. It further appears from the evidence adduced before the trial court that the victim's father had allowed the victim to live with a lady and her family in the hope that she would be better cared for as the father had six children from his deceased wife and was engaged in grazing cattle and did not have the means to support so many children. According to the victim's testimony in course of the trial, she was ill-treated by her foster parents and made to work in their bakery. Though there were questions put to the victim in course of her cross-examination as to whether she was given food or shelter by her foster parents, it clearly came through that the victim was not treated well. Though there were questions put to the victim in course of her cross-examination as to whether she was given food or shelter by her foster parents, it clearly came through that the victim was not treated well. However, the general ill-treatment of the victim may have no impact on the accusation levelled against the appellant herein. 5. As to the specific incident of July 4, 2013, the victim indicated that she was washing clothes when her foster father was drinking and the foster father asked the victim to come into the room and give him a body massage. Thereafter, the foster father asked her to close the door and come to him whereupon, according to the victim, the foster father raped the victim. The victim was clear in her description of the incident and considering the age of the victim and the fact that she barely knew how to write her name, the description of the incident comes through as natural and truthful. Apart from the fact that she had not been treated too kindly by her foster parents, there was no motive that she had to falsely implicate her foster father. 6. The victim claimed that after the incident the foster father gave her a bath and, thereafter, she slipped out and hid at the relevant neighbour's place. There are some discrepancies in whether the neighbour actually discovered her hiding under a verandah or the victim came knocking at her door and certain other anomalies as to how the victim and the neighbour went to the neighbour's daughter. However, what rings true is that the victim and the relevant neighbour reached the neighbour's daughter and the victim spent a considerable period of several weeks with the neighbour's daughter. The neighbour's daughter, in course of her oral evidence at the trial, indicated that she had tried to ascertain the reason why the victim was unwilling to return to her foster parents, but it is evident that she took pity on her plight and allowed her to remain with her. It was only upon the victim narrating that she had been raped by her foster father that the concerned neighbour's daughter along with the neighbour reported the matter to the police and also to the women's cell at Jowai, whereupon the appropriate authorities took custody of the girl child. 7. It was only upon the victim narrating that she had been raped by her foster father that the concerned neighbour's daughter along with the neighbour reported the matter to the police and also to the women's cell at Jowai, whereupon the appropriate authorities took custody of the girl child. 7. According to the neighbour's daughter, when she later called the child welfare authorities as to the wellbeing of the victim, she was informed that the victim had been released to her natural father. The child welfare authorities, according to the witness, also accused the witness of having implanted ideas in the mind of the victim. However, despite the relevant witness asserting the accusation by the child welfare authorities, in course of victim's evidence at the trial, she substantially corroborated what she is reported to have informed her relevant neighbour and the neighbour's daughter. 8. Several witnesses were called on behalf of the accused, including the natural father of the victim. It was obvious that the father of the victim, who had come to testify at the behest of the appellant herein, did not have the means to maintain his daughter and, was in a sense beholden to his daughter's foster parents for having taken care of his daughter or having relieved him of the burden. The trial court, quite appropriately, read the testimony of the natural father of the victim in such light. 9. The trial court referred to several Supreme Court judgments to the effect that merely because there was no other eye-witness to the incident would not imply that the victim's version had to be disregarded. The trial court found that the victim's version was truthful and the victim's version was substantially corroborated by the relevant neighbour and the neighbour's daughter. 10. It is submitted on behalf of the appellant that the statements originally made by the concerned neighbour and the neighbour's daughter to the police were somewhat different from how they presented the picture in the court at the time of the trial. 10. It is submitted on behalf of the appellant that the statements originally made by the concerned neighbour and the neighbour's daughter to the police were somewhat different from how they presented the picture in the court at the time of the trial. Indeed, it is submitted on behalf of the appellant that though both the relevant neighbour and her daughter insisted that the victim put up with the neighbour's daughter for more than a month, they reported to the officer in the women's cell of the police at Jowai that they found the girl at a bus stop at Umkiang and had come to know of her plight. 11. There is no doubt that the relevant officer from the women's cell in Jowai testified that she was informed by the relevant neighbour or her daughter that the girl had been picked up from a bus stop at Umkiang, whereupon, the neighbour and her daughter came to know of her plight. However, even if such statements may have been made by the neighbour and her daughter so that they were not found to be involved in the case, it is evident from their subsequent statements as corroborated by the victim that the victim spent nearly a month at the neighbour's daughter's house and did not desire to return to her foster parents' house despite request. 12. It does not appear that the victim was intelligent or educated enough to be able to plan out a detailed conspiracy of falsely implicating her foster father and consistently maintaining her version so as to carry the matter through. Further, the relevant neighbour and the neighbour's daughter had no axe to grind against the appellant herein and no case of any enmity or animosity between the relevant neighbour and her daughter on the one hand and the foster parents on the other has been made out. Despite several questions in cross-examination put both to the victim and to the relevant neighbour and her daughter, it does not appear that this was a case where the victim was lured by the neighbour or by her daughter or induced to make any false statement with any particular motive or design. Despite several questions in cross-examination put both to the victim and to the relevant neighbour and her daughter, it does not appear that this was a case where the victim was lured by the neighbour or by her daughter or induced to make any false statement with any particular motive or design. The trial court found the victim's statement to be believable and the defence made no attempt to establish that the appellant herein was not present at his residence on that particular day or set up any alibi. All that the defence attempted to do in this case was to bring witnesses to depose that the victim may not have reported the incident to them or the victim may not have complained previously of the ill-treatment that she was subjected to at her foster home. 13. The appellant refers to a judgment reported at (2020) 3 SCC 443 (Santosh Prasad alias Santosh Kumar v. State of Bihar) for the judicial caution that is exhorted to be exercised at paragraph 5.4.1 of the judgment. Several previous judgments are referred to in the paragraph cited to the effect that a false allegation of rape can also be made and the Court has to be careful to accept the accusation and the unilateral statements of the victim. 14. The caution required to be exercised in that case was in the light of the facts of the matter before the Supreme Court. The Supreme Court found, as a matter of fact, that there was enmity between the branch of the family of the victim and the branch of the family of the accused in that case. Further, the Supreme Court found several anomalies and no medical or other report to sustain the case of rape. That was a case of an adult woman alleging that her husband's brother had committed rape on her and it being the admitted position that there was a long history of enmity between the two brothers. In the light of there being no corroborative material despite the forensic report being obtained and no injuries suffered by the victim, the allegations levelled by the alleged victim were disbelieved. 15. In the light of there being no corroborative material despite the forensic report being obtained and no injuries suffered by the victim, the allegations levelled by the alleged victim were disbelieved. 15. In the present case, it was a 13-year-old girl who complained of being raped by her foster father and, in her trauma, she ran out of the house and hid under the verandah at a neighbour's place to be later discovered by such neighbour. It appears quite natural that the victim was unwilling to indicate the shameful violation that she had suffered at the hands of her foster father and it was only after and she stayed for a substantial period of time at the neighbour's daughter's place that she had the courage to open up and indicate what her foster father had subjected her to. As for the medical evidence, it was discovered that her hymen was torn and no case of any motive could be brought out either against the victim or against the relevant neighbour or her daughter. 16. Every case has to be decided on its own facts. There is no dispute in this case that the girl was a minor and who was under the care of her foster father who had violated her. In such circumstances and considering the truthfulness in her narration of the incident, the trial court quite appropriately accepted the victim's version and found sufficient corroboration thereof in the circumstances immediately following the incident and how the victim conducted herself thereafter. Considering the nature of the relationship between the appellant herein and the victim, the trial court rightly found a case of aggravated sexual assault. 17. As such, the judgment of conviction dated October 27, 2021 and the sentence pronounced thereupon, of seven years' imprisonment under Section 376 of the Indian Penal Code, 1860 and a concurrent sentence of 10 years' rigorous imprisonment under Section 6 of the Protection of Children from Sexual Offences Act, 2012, together with the fine imposed of Rs. 20,000/-, appear to be justified. 18. Crl. A. No. 21 of 2021 is dismissed. 19. Crl.M.C. No. 77 of 2021 stands disposed of. 20. Let a copy of this order be immediately made available to the appellant free of cost.