Cheerfulson Snaitang vs . State Of Meghalaya
2022 Latest Caselaw 71 Meg

       Serial No.07
       Regular List
                        HIGH COURT OF MEGHALAYA
                            AT SHILLONG
Crl.A.No.5/2020
                                                 Date of Order: 14.03.2022
Cheerfulson Snaitang                   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. SD Upadhaya, Legal Aid Counsel
For the Respondent(s)              : Mr. S Sengupta, Addl.PP with

Mr. AH Kharwanlang, 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 principal ground urged in this appeal is that though the

appellant has been found guilty of having committed rape and sentenced to

ten years' imprisonment and payment of fine of Rs. 25,000/- (in default to

suffer imprisonment for an additional six months), no case of penetration in

terms of Section 375 of the Indian Penal Code, 1860 was made out.

2. The matter pertains to an incident of September 23, 2006 in

respect whereof a complaint was lodged on September 30, 2006, whereupon

the minor victim was medically examined on October 1, 2006. Such

examination revealed that the victim's vagina was tender and red and her

hymen was ruptured. The opinion rendered by the medical examiner was

that the girl had been raped and was suffering from mental trauma. The

medical examiner substantiated his opinion in course of his evidence at the

trial and maintained that the nature of the tear of the hymen in this case

indicated that it was upon being pushed by a foreign body and not due to the

victim being involved in any arduous sporting activity.

3. The first information report came to be lodged upon a women's

organisation in the locality coming to know of the incident. Indeed, the

complaint referred to the appellant herein having confessed to the

commission of the crime before the local Dorbar. The investigating officer

also deposed at the trial to the effect that the appellant had confessed that he

had committed the offence. However, since such extra-judicial confession

could not have been taken cognizance of, the trial court merely referred to

the statement rendered by the appellant under Section 164 of the Code of

Criminal Procedure, 1973, wherein he clearly admitted to having raped the

victim.

4. In support of the appellant's case that there was no rape and the

appellant's confession had to be discarded, it is the victim's oral evidence at

the trial that is placed. In course of the examination-in-chief, the victim

claimed that the appellant herein grabbed the victim and took the victim to a

bed where he made the victim lie down before "he took off his pant and he

pulled my under garments and then he raped me". However, in her cross-

examination, the victim had this to say:

"... After the accused entered my house he caught hold of my hands, opened his long pants and mine, but he did not open my under wear, he then took me to the bed which was in the bedroom and then rape me. I did not scream for help when I saw the accused opened his under pant as I was scared of him. I did not feel pain after the accused had rape me. It is a fact that the accused person did not penetrate his male organ inside my vagina but he just rubbed from the top of my under wear. It is a fact that I was tutored by my mother before I came to the Court today".

5. According to the appellant, if the victim's underwear was not

taken down and the appellant merely rubbed himself on the victim's crotch

while she still wore her underpants, there would be no commission of any

rape. The appellant also asserts that considering that the appellant is of

average intellect with no formal education, his confession must be regarded

as having committed a wrong, but merely because his translated statement

reveals that he had confessed to having committed rape, it would not imply

that there was penetrative sex, particularly since the victim's version is such

that would rule out any element of penetration, which is the key to the

commission of the offence of rape.

6. The appellant is critical of the impugned judgment of October 31,

2018 to the extent that the trial court has glossed over such aspect of the

matter upon the trial court placing over-reliance on the purported confession.

The underlying submission on behalf of the appellant is that since it was the

Executive Magistrate who translated the answers given by the appellant into

English, it is possible that the Executive Magistrate translated what he

perceived the appellant had said, rather than what the appellant may actually

have said. The appellant submits that when the victim claimed that the

appellant merely rubbed himself on the victim's underwear and the victim

felt no pain, as she categorically asserted in course of her cross-examination,

no case of rape was made out for such harsh punishment to be imposed on

the appellant.

7. One must read the evidence in its entirety and also be aware of the

status of the persons involved, their levels of education, understanding and

intellect. When it is evident that the ten-year-old victim, upon being

medically examined about a week after the incident, still showed signs of

tenderness in her vagina and her hymen was torn, there is sufficient evidence

of penetrative sex. The victim also indicated that the appellant herein pulled

at her underpants. In the light of the victim's assertion in the examination-in-

chief, what she said in her cross-examination must be seen in the appropriate

perspective and a degree of latitude has to be granted to the victim, even

though she was an adult when the trial was conducted, that she would be

flustered, nervous and extremely uncomfortable in such details being sought.

8. Even if the victim's evidence in her cross-examination is taken at

face value, it would not imply that there was no penetrative sex. If it be

accepted that at the relevant time the victim was wearing her underpants and

the appellant rubbed his organ from over her underpants, there was no

difficulty in penetration. Penetration for the purpose of Section 375 of the

Penal Code does not have to be complete. Any element of penetration would

suffice for the purpose of the relevant provision. Further, Section 375(b) of

the Penal Code recognises that insertion, to any extent, of any object into the

vagina or urethra would amount to rape. Even if it be accepted that the

appellant herein forced his organ into the vagina or urethra of the victim

despite the victim wearing her underpants, it would still amount to

penetration for the purpose of Section 375(b) of the Penal Code.

9. In any event, by virtue of Section 375(c) of the Penal Code, when

a person manipulates any part of the body of a woman so as to cause

penetration into, inter alia, the vagina or urethra, the act would amount to

rape. There is sufficient evidence of such penetration in the present case.

10. Whatever may have been the reasons for the victim claiming that

she did not feel any pain at the time, she complained of pain when she was

medically examined on October 1, 2006 and the medical report confirmed

the same. The medical report also confirmed the tenderness in her vagina

which also revealed redness and the ruptured hymen. In the absence of the

appellant herein establishing any alternative reason for the victim suffering

the tenderness in her vagina or ruptured hymen or pain that she complained

of in the context of the physical abuse that she was subjected to, merely

because the victim may have said that she did not endure any pain at the

relevant time may not absolve the appellant herein of his guilt.

11. The trial court may have done better in focussing on such aspect

of the matter. However, the Court cannot be blamed for overlooking such

aspect in the light of the unequivocal statement of the appellant before the

relevant Magistrate under Section 164 of the Code. After all, admission is

the best form of proof. At any rate, there was no attempt to detract from the

confession or explain the same. As to the ground urged that the appellant

was not allowed sufficient time to reflect on his confession, the evidence of

the Magistrate is a complete answer; and, a degree of sanctity has to be

accorded to a statement recorded under Section 164 of the Code by a

disinterested responsible official.

12. On an overall appreciation of the evidence, it does not appear that

there was no penetration in course of the appellant forcing himself on the

victim on the relevant date, warranting any interference with the judgment

of conviction of October 31, 2018. Since the victim was a minor and since

the appellant confessed that he lost control over himself and committed the

offence, the punishment awarded to the appellant herein does not appear to

be out of place.

13. Accordingly, Crl. A. No. 5 of 2020 fails. The judgment of

conviction and the resultant sentence are affirmed.

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

appellant herein free of cost.

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

Meghalaya
14.03.2022
"Santosh-P.S."