Sparding Nongbri vs . State Of Meghalaya
2022 Latest Caselaw 150 Meg

   Serial No.04
   Supplementary List
                     HIGH COURT OF MEGHALAYA
                         AT SHILLONG
Crl.A.No.15/2021with
Crl.M.C.No.49/2021
                                              Date of Order: 20.04.2022
Sparding Nongbri                  Vs.                State of Meghalaya
Coram:
          Hon'ble Mr. Justice Sanjib Banerjee, Chief Justice
          Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Appellant             : Mr. S.D. Upadhaya, Legal Aid Counsel
For the Respondent            : Mr. N.D. Chullai, AAG with

Mr. S.Sen Gupta, Addl.PP

i) Whether approved for reporting in Yes/No Law journals etc.:

ii) Whether approved for publication in press: Yes/No

JUDGMENT: (per the Hon'ble, the Chief Justice) (Oral) The appellant has been convicted under Section 6 of the

Protection of Children from Sexual Offences Act, 2012 for having

committed aggravated penetrative sexual assault on his step-daughter of

14 years and sentenced to rigorous imprisonment for 20 years and a fine

of Rs.30,000/-. In default of the payment of fine, the appellant is to

suffer simple imprisonment for a further period of five months.

2. The appellant contends that the vague allegations of the alleged

victim do not constitute any offence and the trial court erred in

disregarding the unclear and somewhat fuzzy description of the incident

by the victim to find that a case has been made out against the appellant

for conviction under the most stringent provision. The appellant refers to

his confessional statement recorded under Section 164 of the Code of

Criminal Procedure, 1973, but submits that since the trial court did not

go solely by the appellant's confession and called for evidence to be

presented, the evidence adduced made out no case at all against the

appellant.

3. Two persons were named as accused, based on the minor

victim's statement. Since the appellant herein was the step-father of the

minor victim, the appellant has suffered the more harsh punishment than

the other accused who has got a lesser sentence. No appeal has been

preferred by the other accused; or, at any rate, such appeal is not before

this Court.

4. There is no doubt that in matters involving stringent

punishments, trial courts do not go merely by the confessional statement

of the accused and look at the evidence to otherwise assess the

culpability of the accused. But that does not mean that the moment the

trial court requires the evidence to be presented, notwithstanding the

confessional statement of the accused, the confessional statement loses

all value or effect.

5. Indeed, if the confessional statement corroborates the

complaint or if such confessional statement fills up any lacuna in the

prosecution case or the evidence in such regard, the court can found the

basis of conviction on the confessional statement upon relying on the

overall evidence to be satisfied that the confessional statement was

relevant.

6. The first information report came to be lodged at the Nongstoin

Police Station on April 19, 2016. The mother of the victim, who is the

wife of the appellant herein, asserted in the FIR that her second husband

had raped her daughter since 2013 till the month of March, 2016 and that

her daughter apparently informed her of the incidents only on April 15,

2016 that prompted her to file the FIR on April 19, 2016. In the

statement of the victim recorded under Section 164 of the Code, she

claimed that she had been raped twice by the appellant herein in 2013

and again in 2014, but was afraid to tell her mother as the appellant had

threatened to kill her. According to the victim, the step-father attempted

to rape the victim again sometime in the month of March, 2016, when

she managed to escape to a jungle. The victim went on to say that her

step-father then sent Pherlin (the second accused) "to look for me in the

jungle and when he found me he raped me in the jungle".

7. In her testimony in court, the minor victim claimed without

being specific as to the date of the latest incident that in the month of

March, 2016, she was raped by her step-father in a jungle. The victim

reiterated that when she had been raped earlier in 2013 and 2014, she

was afraid to report the matter to her mother, particularly as the appellant

herein had threatened to kill her if she reported the matter to any person.

8. The statement of the minor victim in her examination-in-chief

does not indicate in any great detail as to when and how she was raped in

March, 2016 and, by the time the victim was medically examined after

the FIR was made on April 19, 2016, there were no signs of injury

discovered on her person and the medical examiner concluded that there

were no recent signs of the minor victim having had sex. However, in

the detailed form that was filled up at the time of the medical

examination on the victim, she indicated that the appellant herein had

indulged in penetrative sexual assault with both his fingers and his penis

and had also ejaculated inside her.

9. The appellant consciously made the confessional statement and

clearly admitted the commission of the offence in the following words:

"I have made a mistake, I raped my step daughter twice as I was drunk/intoxicated both times this year.

"I don't have anything else to say as I have made a mistake."

10. In the impugned judgment of conviction dated November 26,

2020, the trial court has extensively dealt with the circumstances in

which the charge-sheet came to be filed and all the material that was

placed by way of evidence, to arrive at a conclusion that there was no

doubt that the offence had been committed by, inter alia, the appellant

herein.

11. This was not the everyday case of the complaint being

confined to a solitary incident of rape. The victim complained of having

been raped by the appellant several times since 2013. The victim only

described the latest incident of March, 2016 and, her narration of the

incident can, at best, be said to be somewhat vague and lacking in

particulars. There is no doubt that she claimed penetrative sexual assault

by the appellant herein and indicated that she reported the matter to her

mother in March, 2016, but the mother did not believe her and

admonished her before she complained to the Seng Longkmie,

whereupon the mother lodged the FIR on April 19, 2016.

12. The FIR claimed that the mother was informed by the daughter

for the first time on April 15, 2016, but it is evident from the victim's

statement that she had brought the matter to the notice of her mother on

March 16, 2016 itself.

13. Every matter has to be dealt with individually and on the basis

of the material facts that emerge in the context of the applicable law. A

complaint of a one-off case of rape has to be dealt with completely

differently than a case of repeated rape over a long period of time.

Indeed, even though the victim in this case recorded in her statement

under Section 164 of the Code that she had been raped twice earlier in

2013 and 2014 and then in March, 2016 and the appellant also referred

to having committed rape on the minor victim twice, the victim may

have been subjected to repeated sexual assault over a period of time and,

considering the trauma that the obviously uneducated victim suffered,

she may not have been able to describe the saga in any great detail.

14. At the same time, in course of her medical examination on

April 19, 2016, her statement recorded under Section 164 of the Code

and in her later testimony in court, the victim clearly asserted having

been subjected by the appellant to suffer penetrative sexual assault with

penile penetration and discharge of semen. There is no dispute as to the

age of the victim, notwithstanding her assertion that she was told by her

mother that she was 14 years old. In any event, it is the Judge who is the

best person to assess the age of a victim and the trial court found the

victim to be a minor and did not call for any medical examination in

such regard. In the circumstances narrated by the victim, the confession

was found to be sufficient for the appellant's conviction.

15. There is no real discrepancy in the victim's versions or any

contradiction in the statements made by the witnesses called by the

prosecution. To the extent that the victim's statement lacked in

particulars, it had a natural flavour about it, including the fact that

despite the victim having reported the latest violation of her on the day

after the incident, her mother did not take her seriously.

16. It is equally possible that the mother being in a vulnerable

economic position with no independent means to maintain herself and

her minor daughter, may have dissuaded her daughter from pursuing the

matter before it became public at the Seng Longkmie which constrained

the mother to carry the complaint to Nongstoin Police Station. It may be

the same story as in several other Indian homes where the complaints of

sexual assault by children are brushed aside or ignored or even

suppressed for one reason or the other, whether because of financial

disability or even the fear of publicity and its perceived adverse impact

on the victim as the larger society still sees the victim as the culprit.

17. In the backdrop of the accusation of the victim in this case, the

confession of the appellant herein as recorded in his statement under

Section 164 of the Code completely corroborated what the victim had to

say. The trial court, quite appropriately, did not rely plainly on the

confessional statement to convict the appellant, but went through the

rigmarole of a complete trial to satisfy itself that the acts complained of

had actually happened and, inter alia, the appellant had committed the

offence he was charged with.

18. For the reasons aforesaid, there does not appear to be any merit

in the appeal. Once the appellant's confession is read in the context of

the allegations levelled against him by his step-daughter, there is little to

detract from the step-daughter's version of things, notwithstanding the

earlier incidents of rape having been a few years prior to the FIR being

lodged within four days of the latest incident of aggravated penetrative

sexual assault suffered by the minor victim. The judgment of conviction

took all relevant aspects into account. The evidence adduced and all

relevant factors were taken into consideration and the applicable law

referred to before arriving at the conclusion. There does not appear to be

any infirmity in the judgment of conviction for the same to be interfered

with. The sentence awarded follows by operation of law. There can be

no doubt that this was a case of aggravated penetrative sexual assault

since the appellant herein is the step-father of the victim.

19. Crl.A.No.15 of 2021 fails. The judgment of conviction and the

order of sentence are upheld.

20. Crl.M.C.No.49 of 2021 is disposed of.

21. Let a copy of this order be immediately made available to the

appellant free of cost.

       (W. Diengdoh)                               (Sanjib Banerjee)
           Judge                                      Chief Justice

Meghalaya
20.04.2022
"Lam DR-PS"