High Court of Meghalaya
Trimborilin Kharbani vs . State Of Meghalaya & Anr on 1 March, 2022
Serial No.04
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
Crl.A.No.11/2019
Date of Order: 01.03.2022
Trimborilin Kharbani Vs. State of Meghalaya & anr
Coram:
Hon'ble Mr. Justice Sanjib Banerjee, Chief Justice
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. P Yobin, Legal Aid Counsel
For the Respondent(s) : Mr. S Sengupta, 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 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 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 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. 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. 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. 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. 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. 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.
(W. Diengdoh) (Sanjib Banerjee)
Judge Chief Justice
Meghalaya
01.03.2022
"Lam DR-PS"
