High Court of Meghalaya
Krekborlang Sawkmie vs . State Of Meghalaya & Anr on 12 May, 2022
Serial No.05
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
Crl.A.No.3/2021
Date of Order: 12.05.2022
Krekborlang Sawkmie Vs. State of Meghalaya & anr
Coram:
Hon'ble Mr. Justice Sanjib Banerjee, Chief Justice
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Appellant : Mr. P. Yobin, Legal Aid Counsel
For the Respondents : Mr. K. Khan, PP with
Mr. S. Sengupta, Addl.PP
i) Whether approved for reporting in Yes
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 4 of the
Protection of Children from Sexual Offences Act, 2012 and sentenced to
15 years' imprisonment together with a fine of Rs.20,000/-. In default of
payment of the fine, the appellant has to suffer a further year's
imprisonment.
2. According to the minor victim then aged eight, there were three
clear incidents of rape over a four-day period in the first week of June,
2013. The girl consistently maintained in course of her statement recorded
under Section 164 of the Code of Criminal Procedure, 1973 and her
testimony at the trial that the first incident was on a Saturday, the second
incident was on the following Monday and the third incident was on
Tuesday. According to the victim, on that Saturday in the first week of
June, 2013, she accompanied her sister, Sita, and the sister's husband, the
appellant herein, and their two-year-old daughter to a jungle at Laitlum in
the hope of catching some fish. The girl narrated that while her sister Sita
went on in one direction in the jungle, she, the appellant and the infant
went another way and it was at such time that she was grabbed by the
appellant, pushed to the ground and sexually assaulted upon her
underpants being brought down. The victim even described the black
underpants that the appellant wore on that day.
3. The victim recounted that she felt pain and bled and she raised a
hue and cry but the same could not be heard by any person. The infant was
around nearby but was too young to realise what was going on. She
reported that the appellant apparently threatened to kill her if she
mentioned the incident to any other person. The victim then claimed that
on the following Monday the appellant called the victim to the appellant's
hut which was in the vicinity of the victim's residence. The appellant
apparently wanted a torch and when the victim carried the torch to the
appellant's hut, she claimed that she was pinned down on the bed and
raped. Again, she was threatened with dire consequences and she asserted
that she was too afraid to speak of the matter. The victim recollected that
on the following day she was called by her brother-in-law on the pretext
of bringing a wait and, again, forced on the bed and raped. She reiterated
that she was threatened again.
4. In the confusion that followed and the trauma that the victim
must have experienced, she did not report the matter or any of the incidents
to any person for some time. It appears that after a few days, she first
reported the matter to another sister Shita who then informed their mother,
Nianti, and the mother informed the victim's brother and other relatives.
5. Sister Shita corroborated the fact that she was the first to be
informed of the incidents, whereupon she reported the matter to her mother
and other relatives. In her deposition at the trial, she clearly stated that she
had not accompanied the victim and the others to the jungle on that
Saturday. It was clear that Shita had not witnessed any of the incidents
complained of by the victim, but that the victim had first confided in Shita.
Another sister, Sita, the wife of the appellant herein, also testified at the
trial and she confirmed that she had gone to the jungle with her husband,
their daughter and the victim on the relevant Saturday but she had gone in
a different direction and did not know of what transpired with the victim
on that day or on the other days that the victim reported to have been raped.
The appellant's wife, however, stated that from or about the time that she
came to know of the victim being sexually assaulted by her husband, she
ceased to live with her husband. In course of the cross-examination, some
kind of motive was attempted to be attributed, but without any success.
6. Several questions have been raised on behalf of the appellant to
challenge the judgment of conviction of August 3, 2018 and the sentence
that was pronounced on August 8, 2018. According to the appellant, there
were serious discrepancies in the victim's version and there is considerable
confusion as to when she reported the matter to her sister Shita as the
victim's version in such regard is not supported by Shita's assertion in
respect thereof. The appellant finds fault in the delay in lodging the
complaint and seeks to obtain support from the fact that the medical
examination conducted on the victim did not find any trace of "recent
sexual" activity. The appellant suggests that if an eight-year-old girl had
been raped, she would show signs of injury, probably grievous injury, in
her private parts. The appellant claims that the victim's assertion of the
incidents implied that she was fully penetrated by the appellant. As a
consequence, the appellant suggests that it is inconceivable that a fully
developed adult would indulge in full penetrative sex on multiple
occasions with an eight-year-old girl and there would be no sign of any
injury some 15 or 20 days after the incidents.
7. The appellant also attributes ill-motive to both his wife Sita and
to the wife's victim sister. The appellant refers to his wife's testimony at
the trial that she separated from her husband on or about June 25, 2013,
which was barely a day after the first information report came to be lodged
by a brother of the victim. The appellant seeks to find fault with even the
description of the appellant in the FIR. According to the appellant, since
the FIR-maker was, legally, a brother-in-law of the appellant, such fact
ought to have been reflected in the FIR instead of referring to the person
accused therein as the son of so-and-so and not revealing the FIR-maker's
relationship with such person.
8. The appellant finds it disturbing that family meetings were held
after the victim allegedly reported the matter to her relatives and that the
victim was also present before the appellant despite her earlier accusations
against the appellant. More importantly, the appellant suggests that it
would be unnatural for a victim who had been raped by a person on a
Saturday to visit the hut of such person on the following Monday or, after
again being raped on Monday, to go to the same hut on another chore on
the Tuesday.
9. The appellant submits that since the victim complained of having
been raped on all three occasions and of having bled in her private parts on
at least one or two of such occasions, the blood stains on her person and
apparel ought to have been noticed by other family members and the
victim's trauma may have been too much for her to hide from her relatives.
The appellant says that no attempt was made to seize the victim's clothes
or even her undergarments to ascertain whether there was any indication
therefrom of the commission of the offence as complained of.
10. There is no basis to any of the grounds canvassed on behalf of
the appellant. For a start, the eight-year-old victim was consistent in the
statements which she rendered and the basic features remained constant.
The minor discrepancy was in the victim's indicating when she may have
first confided in her sister Shita. Even if there is some discrepancy in such
regard - which there does not appear to be - nothing would turn on such
aspect of the matter.
11. As the trial court rightly referred to the principle upon relying on
Supreme Court judgments, that for a discrepancy to be material, the
divergence had to be in the basic story and not in the details. The basic
story here was that an eight-year-old girl had been ravished first when she
was in the jungle on a Saturday and then again on Monday evening and
Tuesday evening. She described the circumstances on each occasion and
the fact that she had been threatened by the appellant that she would be
killed if she reported the matter to any person.
12. It is true that the appellant's wife, Sita, may have been some
distance away and did not witness what happened in the jungle on that
Saturday in early June of 2013. But what is of importance is that in Sita's
mind she had no doubt that her little sister was truthful in her complaint. It
is not an easy decision for an Indian woman, particularly in the villages, to
break away from her husband, especially when there is a young child to
also care for. But the wife of the appellant in this case found substantial
merit in her younger sibling's assertion to assert in her testimony at the
trial that she had unilaterally severed her relationship with her husband.
The wife's reaction is justifiable as no reasonable wife would continue to
share any space or bed with a husband who is said to have raped the minor
sister of his wife.
13. The medical examination conducted on the victim revealed that
her hymen was torn. A longitudinal tear was reported. However, no signs
of other injures were indicated and the medical examiner opined that there
were no signs of "recent sexual" activity. There may have been some
confusion if the medical practitioner had not testified at the trial and
indicated precisely what was meant by the word "recent". It comes out
from the deposition of the medical practitioner that since the matter was
reported to the police some three weeks or so after the incidents took place,
the opinion rendered was that there were no signs of recent sexual
intercourse. In other words, the medical practitioner found no signs of
penetration in the vagina of the victim in the few days prior to the
examination. The use of the word "recent" was clarified and it did not
imply that "recent" would cover a tenure of several months, but was
confined to a period of about two or three weeks.
14. Much is made by the appellant of the medical practitioner's
acceptance that the hymen may be torn in course of other activities and
may not necessarily be as a result of penetrative sex. There is no doubt that
when a girl is given to vigorous exercises or riding or the like, the hymen
may tear. But there is no evidence to the effect that the activities
undertaken by the victim in this case would be consistent with the victim
having torn the hymen in course thereof.
15. What counts at the end of the day is the credibility of the
allegations levelled by the victim and the manner of the presentation
thereof. The trial court found that the allegations were genuine and there
was no motive that the girl child had to falsely implicate her sister's
husband in the commission of such a heinous offence. The trial court
referred to several judgments of the Supreme Court, including one where
it was observed that though the object of the exercise was to ensure that no
innocent person was unfairly punished, it would not do for an accused to
be let off when a clear case had been made out against him.
16. The trial court also dwelt on the other legal aspects, including the
amount of weightage that could be given to the victim's statement in such
a case when there was no other ocular evidence to corroborate the
allegations. The trial court read the entirety of the evidence, sifted the
hearsay from the material and relied on the testimonies of some of the other
relatives of the victim who were called as witnesses only for the purpose
of ascertaining when they came to know of the incidents and what they
knew thereof. On either count, the trial court found that the victim's
assertions stood corroborated, though there were the usual minor
discrepancies which could not detract from the basic version of the
incidents rendered by the victim. The appellant has not been able to make
a dent in the prosecution version as accepted by the trial court. There was
no reason that the appellant could bring out as to why his eight-year-old
sister-in-law would bring a wild accusation against him despite the
appellant and his wife being close enough with such sister-in-law to be
able to go fishing or looking for plants together in the jungle. The appellant
did not attempt to make out any defence even after the substance of the
evidence against him was explained to him by the trial court in course of
the appellant's examination under Section 313 of the Code. The appellant
stuck to the routine answer that the appellant had not committed the
offence and that the allegations levelled against him were untrue.
17. There is no doubt that, ideally, the victim's garments should have
been seized and forensically examined. However, apart from the fact that
an Indian judge has always to deal with tardy investigation, two other
things have to be kept in mind: the first is that the village girls do not wear
fresh clothes everyday and may continue to wear the same clothes for days;
and, secondly, the matter was reported to the police nearly three weeks
after the incidents. As to what impelled the child to go to the appellant's
hut on the Monday and Tuesday following the initial jungle incident on
Saturday, it is difficult to get into the mind of a person - whether a victim
or an accused - as to why they did what they are alleged to have done. But
since the argument has been made, an attempt at an answer must be made
without prejudice to the primary premise that it is not for the court to gage
the mental make-up of a person.
18. Here was a girl who had been raped by a dear relative and she
had been threatened to be killed if she revealed the matter to anyone. There
is no doubt, as the acts that followed would confirm the same, that the
primary motive of the appellant to ask for a torch on the Monday evening
and for a wait on the Tuesday evening was to create a ruse to ensure that
the victim came to his hut when it was dark and he was alone there. If the
victim was close to the torch or the wait was near the victim and, in the
usual course, it would have been the victim who would unhesitatingly run
the chore, the victim could not have been declined it on either occasion or
she may have been forced to reveal her fear and, consequently, narrate the
earlier incident or incidents to others nearby. On both the Monday and
Tuesday, it was in the evening and the other relatives must have been
nearby for the victim to have done what was expected of her in the usual
course, particularly in the light of the threat meted out to her by the
appellant that she would be killed if others found out what the appellant
had subjected her to.
19. Further, and notwithstanding the appellant's contention to the
contrary, nothing that the victim said would suggest that she claimed that
the appellant had inserted the entirety of his male organ into her.
20. There is a final aspect to the matter. It appears that the appellant
was produced before an Executive Magistrate for recording a confessional
statement. It was the same Magistrate before whom the victim had
recorded her statement. The relevant Magistrate was examined at the trial.
It appears that upon time being afforded to the appellant to reflect as to
whether he would make any confessional statement, the appellant claimed
before the relevant Magistrate that he had been falsely implicated and that
some other person, whom the appellant named, had committed the crime.
21. While it is true that the appellant did not admit to having
committed the offence, the other feature of the appellant's statement may
not be lost sight of. The appellant made a clear allegation against the
named person. That was also a part of the appellant's statement. Having
made such statement, it was incumbent on the appellant to try and justify
the same or bring any evidence in such regard so as to deflect the
accusation from the appellant or even introduce the possibility of the
relevant named person having committed the crime. The appellant
completely failed to discharge the onus that he brought upon himself by
naming an alternative offender.
22. In the light of the credible evidence of the victim and her clear
description of the three incidents which came in quick succession in early
June, 2013 and the appellant's failure to suggest any alibi or have any
plausible answer, the trial court was perfectly justified in finding the
appellant guilty. The material before the trial court clearly made out a case
against the appellant that was beyond reasonable doubt.
23. As a consequence, the judgment of conviction of August 3, 2018
and the sentence pronounced thereupon on August 8, 2018 do not call for
any interference.
24. Crl.A.No.3 of 2021 is dismissed.
25. Let a copy of this judgment be immediately made over to the
appellant free of cost.
(W. Diengdoh) (Sanjib Banerjee)
Judge Chief Justice
Meghalaya
12.05.2022
"Lam DR-PS"
