Babul Dutta vs . State Of Meghalaya
2022 Latest Caselaw 25 Meg

        Serial No.01
        Supplementary List
                        HIGH COURT OF MEGHALAYA
                            AT SHILLONG
Crl.A.No.4/2020
                                                      Date of Order: 22.02.2022
Babul Dutta                        Vs.                      State of Meghalaya
Coram:
          Hon'ble Mr. Justice Sanjib Banerjee, Chief Justice
          Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s)         : Mr. M Sharma, Legal Aid Counsel
For the Respondent(s)                   : Mr. H Kharmih, GA

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 376(2)(i) of the

Indian Penal Code, 1860 read with Sections 3(a) and 4 of the Protection of

Children from Sexual Offences Act, 2012. He has been sentenced to

rigorous imprisonment for a period of ten years and imposed a fine of

Rs.10,000/-; and, in default of the fine, to suffer rigorous imprisonment for a

further period of six months.

2. The incidents are of July 26 and 27, 2014. The case made out by

the prosecution was that when the mother of the 12-year-old girl was away

and the victim was sleeping in a room with her younger step-siblings, her

step-father came into the room on two consecutive nights and raped her. The

victim claimed that the appellant had threatened her with dire consequences

if she reported the matter to anyone.

3. The victim made a statement in course of the investigation and a

further statement was recorded by a Judicial Magistrate under Section 164 of

the Code of Criminal Procedure, 1973. The victim also deposed in course of

the trial. The version of the victim, particularly the one reflected in the

statement recorded under Section 164 of the Code and the other during her

testimony at the trial, remained uniform and there was no anomaly in her

assertion that even after her mother returned, she did not narrate the

incidents to her mother. According to the victim, she spoke of the matter

first to her maternal aunt, who then informed the victim's mother and

relatives on the maternal side of the victim.

4. In course of the trial, the prosecution called nine witnesses,

including the initial investigating officer, the subsequent investigating

officer and a woman police constable who was on duty at or about the time

of the complaint. Apart from these formal witnesses and the medical officer

who examined the victim after the belated complaint was lodged, the

prosecution examined the maker of the first information report, the victim,

the victim's mother, the relevant aunt of the victim who was first told of the

incidents and another relative whose hearsay evidence does not throw any

light on the issues involved.

5. Three perceived anomalies have been pointed out on behalf of the

appellant. The appellant maintains that there was no reason for the FIR to be

filed only on September 3, 2014, particularly when the FIR-maker claimed

that he came to know about the incidents on or about July 28, 2014. The

impugned judgment is placed on behalf of the appellant to demonstrate that

the delay in lodging of the FIR was glossed over by the trial court. The

second ground raised on behalf of the appellant pertains to the obvious

anomaly in the testimony of the FIR-maker and such statement not being in

consonance with the narration of the incidents and what followed thereafter

by the other prosecution witnesses. The third issue raised by the appellant is

that the entire matter has been decided on the basis of the report of the

medical examination conducted on the victim that found the victim's hymen

not to be intact, though it is quite possible for the hymen to tear in course of

various activities other than sexual intercourse.

6. The trial court recorded the contents of the FIR, noticed the

statements of the victim and the oral evidence of the other witnesses to come

to the conclusion that the victim's description of the incidents appeared to be

lucid and not laboured and the other relatives of the victim had substantially

corroborated what transpired thereupon, particularly the circumstances in

which they came to know of the incidents and how such relatives acted

thereafter.

7. The trial court summarised the oral evidence of each of the

prosecution witnesses and presented the same to the appellant herein for his

reaction. The general refrain of the appellant was that it was not a fact that

he was guilty of any wrongdoing and the only answer of substance, apart

from the general denial, proffered by the appellant was that on those two

nights he had gone to the victim's room to sleep with the victim and his

minor children, though he hastened to add that he had not committed any

rape.

8. There is, no doubt, a jarring note to the oral evidence of the FIR-

maker who was called as PW1. Though the FIR was lodged only on

September 3, 2014, the relevant witness claimed that he had come to know

of the incidents on or about July 28, 2014 upon the minor victim telephoning

him and that he took immediate steps to ensure that a complaint was lodged.

9. Such statement of PW1 has to be seen against what the victim

herself narrated in course of her statements recorded under Section 164 of

the Code and the testimony in Court and the statements of at least two other

witnesses, viz., the mother of the victim and the relevant aunt of the victim.

The victim claimed, without any equivocation or contradiction, that she had

first narrated the incidents to her aunt who was her mother's sister. She did

not refer to any telephonic conversation nor does it appear from her

statement that she first informed the FIR-maker PW1 of the incidents before

she communicated in such regard with any other.

10. The mother of the victim clearly said that she had not witnessed

either of the incidents and that, upon the mother's return, the victim did not

complain that she was afraid of her step-father or otherwise. But the mother

testified that a fortnight or so after the incidents, her younger sister came to

stay with her at Mairang village for a week or two. The mother of the victim

also indicated that the victim spoke of the incidents to the mother's younger

sister at the time when such younger sister came to stay with her at Mairang

and it was her younger sister who informed the mother and the other

relatives of the incidents. The relevant aunt - the mother's sister - asserted

in course of her deposition that she had gone to stay with her sister in

Mairang for some time and it was in course of a casual conversation with the

victim that the victim narrated that her step-father had raped her on two

consecutive nights. The exact words of such aunt of the victim were: "... I

was chatting with my niece wherein after some time she disclosed to me

about the incidents."

11. What also comes out from the oral evidence received during the

course of the trial is that the mother of the victim was deserted along with

the victim by the mother's original husband. The mother's family hails from

Thad village and the mother lived in Thad in course of her first marriage and

for a considerable period of time after the mother went to live with the

appellant herein along with the victim. The appellant had to move from

Thad to Mairang in course of his employment or for the purpose of earning a

better livelihood and the appellant either ran a bakery or worked at a bakery.

12. There is no case of any personal vendetta or grudge of the victim

against her step-father that has been brought out or even attempted to be

brought out on behalf of the appellant. Indeed, the only question in such

regard appears to have been put to the mother of the victim in course of her

cross-examination, whereupon she responded that her mother's family was

not favourably disposed towards the appellant herein not because he did not

belong to the Khasi community, but because he was an alcoholic and

misbehaved when he got drunk.

13. There does not appear to have been any dispute as to the age of

the victim, despite no formal examination in such regard having been

conducted. Ordinarily, when a victim is 10 to 12 years old, it is not

imperative that any form of medical examination is conducted to ascertain

the age of the victim. However, if the victim appears to be bigger or older,

say in the range of 16 or 17 years of age, it is prudent to conduct a medical

examination to ascertain the age of the victim so that a needless point is not

laboured over on behalf of the accused or the convict. In the present case,

the medical officer, on physical verification, was of the impression that the

victim was 12 years old and such officer corroborated the perception in

course of the testimony at the trial. Further, one of the best gauges in such

regard is the eye of the trial Judge and the trial Judge did not harbour any

misapprehension that the victim was not a minor at the time of the

commission of the alleged offence.

14. It also comes through that the victim and her families on both

sides are not very well-off. The FIR-maker required a scribe and only

appended his thumb impression to the document. The mother and the aunt of

the victim did not come through as educated or sophisticated. In such

circumstances, it is difficult to imagine that a 12-year-old unlettered girl,

who apparently had no grudge against her step-father, would be so scheming

as to conjure an allegation of such nature against her step-father. It must also

be kept in mind that pubescent girls are made to feel ashamed of their bodies

and scarcely would a 12-year-old make a false allegation of rape with

penetration, unless that was really the case. More importantly, the girl's

statements appear to be natural, untutored and neither statement raises the

slightest suspicion or doubt.

15. As to the delay in the making of the FIR, it must first be said that

a mere delay does not destroy a complaint or a prosecution case, as long as

some element of justification appears to be present or may be inferred.

Again, the delay here is not of months but of four or five weeks. Here was a

12-year-old girl who stayed, along with her mother, under the roof and care

of her step-father, who was the bread-winner of the family. When such a

person was the perpetrator of the crime and had threatened the minor not to

disclose the matter to any person, the victim, quite naturally, felt intimidated

enough not to report the matter to her mother upon the mother's return.

Further, it does not appear that she went out of her way to report the

incidents to her mother's sister; the evidence of the relevant aunt is clear that

in course of a casual conversation, the young girl blurted out what she had

endured when her mother was away. The entire episode as narrated seems

eminently believable and the manner in which the principal dramatis

personae reported it appears to be natural and normal, given the educational

level and the economic status of the persons concerned.

16. There is no doubt, as the appellant maintains, that the matter

hangs on the thin thread of victim's hymen having been found not to be

intact. There are many ways in which a girl child may tear her hymen; horse

riding and vigorous gymnastics being common examples. However, there

was no evidence to indicate that the victim in this case was given to

activities that would lead to the hymen being torn in the usual course. More

importantly, the victim indicated in response to a question put to her by the

trial court that there was penetration in her vagina and the medical examiner

opined that the victim showed signs of having had sexual intercourse,

though it not could be said with any degree of certainty as to whether the

incidents complained of took place since the examination was conducted

about five weeks after the incidents occurred.

17. The entire object of an exercise in course of a criminal trial is to

look at the material that present themselves and to ascertain whether the

commission of the offence by the accused comes through beyond reasonable

doubt. In the present case, there is no doubt that the appellant had access to

the victim. There is also no doubt that upon the victim's hymen being found

not to be intact, there was a possibility that the victim had been subjected to

sexual intercourse. Most importantly, what stands out is the clear statement

of the victim despite the diffidence and the trauma that she must have

experienced and there being no element of motive being established as to

why she would seek to falsely implicate her step-father.

18. In the light of the aforesaid, the judgment of conviction and the

order sentencing the appellant to rigorous imprisonment and fine do not call

for any interference. The trial court read and analysed the evidence before it

in the proper perspective and, even though the minor delay of a few weeks

in lodging the complaint may have not been adequately addressed, the

overall impression that the evidence before the trial court left was that there

was little reason to doubt either the incidents or of the appellant having

committed the heinous offence.

19. As to the testimony of the FIR-maker, it must be said that it was

slightly overcooked. Despite such witness' assertion that the minor victim

informed him of the matter, the clearer picture emerges from the statements

of the minor girl and of the relevant aunt of the minor girl to the effect that

the victim first confided in her aunt. Oftentimes, it is normal human conduct

to overplay one's role in a matter. The FIR-maker appears to have been the

principal male member on the maternal side of the victim and, as such, he

appears to have been pushed to make the FIR. That the relevant person

exaggerated his role in the matter cannot detract from the extremely credible

and lucid description of the incidents by the victim and her reaction

thereafter. Indeed, sometimes minor anomalies lend to the credibility of the

matters complained of rather than the statements and description that fit

perfectly to complete the jigsaw puzzle. In the larger conspectus, the

somewhat self-important version of the FIR-maker remains a discordant

note, but not enough to disturb the harmony of the picture that is apparent on

an overall appreciation of the evidence.

20. The offences were, according to the minor victim, committed on

July 26 and 27, 2014; the mother of the victim returned home a day later. It

is the mother's evidence that her younger sister came to stay in Mairang

about two weeks thereafter and that such sister stayed at Mairang for about

two weeks. The relevant sister of the mother, as PW5, confirmed that she

spent about two weeks at the victim's home and, in course of chatting with

the victim, the victim narrated the incidents to her. Thus, the first report of

the incidents by the victim may have been nearly four weeks after the

offences were committed. That would take us till the last week of August. In

such a scenario, it was not unnatural for the FIR to have been lodged on

September 3, 2014 since there must have been deliberations within the

family before the complaint was made against a close relative and the

second husband of the victim's mother.

21. The three specific grounds raised on behalf of the appellant, in the

circumstances, hold no water and there does not appear to be any infirmity

in the reasoning furnished or the conclusion arrived at by the trial court.

22. Crl.A.No.4 of 2020 is dismissed.

23. Let a copy of this order be immediately made over to the

appellant at no cost.

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

Meghalaya
22.02.2022
"Lam DR-PS"