Shanborlang Nongdkhar vs . State Of Meghalaya & Ors
2022 Latest Caselaw 221 Meg

     Serial No.04
     Regular List

                       HIGH COURT OF MEGHALAYA
                           AT SHILLONG
Crl.A.No.8/2020 with
Crl.M.C.No.21/2020
                                                Date of Order: 18.05.2022
Shanborlang Nongdkhar               Vs.          State of Meghalaya & ors
Coram:
          Hon'ble Mr. Justice Sanjib Banerjee, Chief Justice
          Hon'ble Mr. Justice W. Diengdoh, Judge

Appearance:
For the Appellant              : Mr. H.R. Nath, Adv
                                 Mr. A. Sharma, Adv
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 issue that arises in this appeal from an order of conviction,

inter alia, under the Protection of Children from Sexual Offences Act, 2012

is as to whether there was penetrative sexual assault perpetrated by the

appellant.

2. The appellant has been convicted under Section 6 of the Act of

2012 and sentenced to 10 years' rigorous imprisonment with Rs.10,000/-

as fine. Upon the appellant failing to tender the fine, he has to undergo a

further two months of simple imprisonment. In addition, the appellant has

also been convicted under Section 506 of the Indian Penal Code, 1860 and

sentenced to seven years' rigorous imprisonment with a further fine of

Rs.10,000/-. In default of payment of such further fine, the appellant has

to suffer an additional month's simple imprisonment. The sentences on

imprisonment are to run concurrently.

3. The first information report was lodged at the Nongstoin Police

Station on March 17, 2015 by the mother of the minor victim who was

then said to be 10 years and four months old. The FIR claimed that the

minor had been raped by the appellant herein at 9 am on the same day. The

complaint went on to narrate that the appellant had apparently indulged in

raping the victim on several previous occasions, but the victim had not

reported the matter as she had been threatened by the appellant to be killed.

4. The victim rendered a statement under Section 164 of the Code

of Criminal Procedure, 1973. She claimed that sometime in 2013 when she

went to the house of the appellant to play with the appellant's sisters in the

usual course, the appellant pulled her and took her to his bedroom where

he opened his pants and also opened the victim's pants, but the victim did

not remember what the appellant did to her on that occasion. The victim

narrated that since that day in 2013, the appellant would often take the

victim to his bedroom and "opened my pants and started rubbing his penis

on my vagina." The victim claimed that such act continued till the mother

of the victim found out on March 17, 2015. The victim recounted that the

appellant performed the same act that he did on previous occasions and

also reported that though he denied having done anything wrong when the

victim's mother scolded the then 18-year-old appellant, "but later he

confessed that he did it to me around three to five times only."

5. In course of the victim's testimony in court she, more or less,

reiterated what she had said before the Judicial Magistrate in course of her

statement recorded under Section 164 of the Code. As to the incident on

March 17, 2015, the victim remembered that she was heading off to the

school when the appellant took her to his room "and committed sexual

assault." Upon the mother of the victim getting suspicious and confronting

the victim as to what she was doing with the appellant, the victim narrated

the incident.

6. The appellant also made a confessional statement before the

Judicial Magistrate. There is no dispute as to the veracity of the appellant's

statement and, mercifully, no attempt was made either at the trial court or

at this stage to discredit the statement or question the manner in which it

was obtained or even wish it away.

7. In course of such statement recorded under Section 164 of the

Code, the appellant asserted that "whatever I did, I did not rape or

penetrated (sic) her." The appellant corroborated the victim's version that

he had first committed sexual assault on her in 2013 but the appellant

maintained that on the several occasions that he had indulged in the same

act, he merely rubbed his penis on the victim's vagina but did not penetrate

her. For good measure, he indicated that the victim never screamed or

shouted and lay down quietly. In course of the statement, the appellant

expressed his deep regret and sought forgiveness.

8. The medical examination that was conducted on the victim

immediately after the FIR was made on March 17, 2015 did not reveal any

injury. The hymen was found to be intact and the medical examiner did

not find any sign of sexual intercourse as far as the victim was concerned.

As to the appellant, the medical examiner found that there was no injury

on his person and, on examining the appellant's genitals, the doctor found

that the foreskin was flexible, but no smegma was present. According to

the medical examiner's testimony in course of the trial, when smegma is

not found in a sexually active male, it implies that the person "might have

either washed private part or just had sexual intercourse." In the cross-

examination that the medical examiner was subjected to, he elaborated that

smegma would be absent due to masturbation or sexual intercourse or

washing of the genitalia.

9. On the basis of the evidence that panned out before the trial court,

the primary submission on behalf of the appellant was that there was no

evidence of any penetration and, as such, the appellant could not have been

charged with having committed penetrative sexual assault. The definition

of penetrative sexual assault in Section 3 of the Act of 2012, which is in

pari materia with the definition of rape in Section 375 of the Penal Code,

was discussed in great length in course of the argument at the trial court as

is reflected in the impugned judgment. The appellant asserted before the

trial court that in the light of there being no evidence of any penetration,

as the girlchild was found not to have suffered any injury and the hymen

was intact, the appellant ought to be considered having only committed

sexual assault without penetration. The appellant's contention before the

trial court was bolstered by the medical examiner not reporting any sign of

sexual intercourse as far as the victim was concerned.

10. It is the same argument which is made in the present appeal. The

appellant asserts that even a minimum penetration would result in some

form of injury to the labia majora or some extent of laceration, particularly

considering that the appellant was a full grown adult and the victim was

barely 10 years old. Several judgments were placed before the trial court

for the proposition that if the evidence led to two possible views being

taken, the court ought to take the view that is more favourable to the

accused.

11. However, what weighed with the trial court appears to have been

the assertion of the victim in course of her statement under Section 164 of

the Code that the appellant herein had "dropped" his penis in the victim's

vagina. At the highest, such "dropping" of the penis in the victim's vagina

could have been on any previous occasion; it could not have been on March

17, 2015 when the entire matter came to light. The evidence shows that the

victim was with the appellant for a short duration and the victim was

preparing to go to school at that time. Further, the victim was examined on

the same day and there was no sign of any forcible entry or injury to her

private parts. Both the victim's and the appellant's underpants were seized

and sent for forensic examination. A vaginal swab was also drawn. There

were no signs of any semen or remnants thereof in the vaginal swab or the

victim's underpants. Traces of semen were, however, found in the

underpants worn by the appellant on that day.

12. The trial court relied on Section 29 of the Act of 2012 that

provides as follows:

"29. Presumption as to certain offences.- Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved."

13. The trial court then referred to Section 4 of the Evidence Act,

1872 to ascertain the true meaning and scope of the expression "shall

presume". The trial court, quite appropriately, was of the view that the acts

complained of had been committed, particularly in the absence of the

contrary being proved by the appellant herein. However, notwithstanding

Section 29 of the Act, as to whether there was penetration or not - leave

aside sexual assault - was a question of fact. Apart from the appellant's

assertion throughout that he merely rubbed his organ on the vagina without

any degree of penetration, the general evidence of the victim was that the

appellant rubbed his penis on her vagina. The act of "dropping" of the

penis as claimed by the victim, has to be seen in the context of her general

assertion that on March 17, 2015 the appellant subjected the victim to the

same treatment as on other days. When, on the same day the medical

examination on the victim did not demonstrate any sign of sexual activity

on the part of the victim, there does not appear to have been any evidence

of penetrative sexual assault as far as the appellant was concerned.

14. This is not a case where one statement has to be weighed against

the other and, in such a scenario, the victim's statement is given greater

weightage unless it is demonstrated that it is false or actuated by malice.

In the present case, it was the categorical assertion of the appellant that

what he did was wrong but he had never penetrated the victim. Similarly,

the victim did not complain of pain of any kind though she was about eight

years old in 2013 when the first act of sexual assault was committed on her

by the appellant. In the light of the victim's general assertion that the

appellant would only take down the victim's underpants and his own and

rub his penis on her private parts, the commission of such sexual assault is

complete without there being any real charge of penetration levelled or

evidence in support of penetration.

15. There is no doubt that Section 29 of the Act of 2012 operates

harshly against an accused. There is sufficient justification for such

harshness as the Act deals with a most heinous crime that brings out the

most basic animal instincts and ruins the life of the victim. However, the

presumption arises upon a charge being made or upon a case being made

for penetration. When there does not appear to be any real allegation of

penetration, the statutory presumption in Section 29 of the Act of 2012 will

not come into play merely because a section pertaining to penetrative

sexual assault having been included in the charges.

16. However, the appellant may not be completely absolved,

particularly in the light of his admission that he committed the act on

several occasions and the fact that the victim in this case was below the

age of 12. Notwithstanding a case of penetrative sexual assault not being

made out against the appellant, the appellant is undoubtedly guilty of

aggravated sexual assault. Section 9(l) of the Act of 2012 mandates that

whoever commits sexual assault on a child more than once or repeatedly

would have committed aggravated sexual assault. Similarly, Section 9(m)

provides that whoever commits sexual assault on a child below twelve

years would also be seen to have committed aggravated sexual assault.

"Sexual assault" is defined in Section 7 of the Act of 2012 to imply the

touching of, inter alia, the vagina of the victim with sexual intent. There

can be no doubt that the victim's vagina was touched with sexual intent by

the appellant in this case and on several occasions over a period of two

years. There is no doubt that the appellant is guilty of aggravated sexual

assault that would attract punishment under Section 10 of the Act for a

term which shall not be less than five years but which may extend to seven

years. In addition, the offence committed by the appellant makes him liable

to be fined.

17. On the basis of the material that was before the trial court, it does

not appear to be any case of penetrative sexual assault was made out or

that even the victim had alleged as such. There is no dispute that the

offence committed by the appellant was grave, particularly since it

continued over a long period of time, but if there was no evidence of

penetrative sexual assault, the appellant could not have been convicted

under Section 6 of the Act of 2012 or punished therefor.

18. It is submitted on behalf of the appellant that he remained

arrested for a period of three months before obtaining bail at the pre-trial

stage. The appellant has been taken into custody upon being convicted and

sentenced by the judgment and sentence of October 29, 2020. Counsel for

the appellant says that on the basis of the admitted facts, the appellant

herein was a juvenile when the first act was committed and even though

there is no dispute that he was a major when he was caught in the act on

March 17, 2015, considering his tender age, his complete confession and

the fact that the victim never complained of any injury, the court should

exercise its discretion and not hand down the harshest tenure of

imprisonment under Section 10 of the Act of 2012.

19. Section 10 of the said Act provides for imprisonment of either

description for a term of not less than five years for an offence of

aggravated sexual assault. The tenure of imprisonment may be extended to

seven years. In addition, a fine may be imposed.

20. In view of the above discussion and specific finding in this

appeal that there was no evidence of penetrative sexual assault, the

appellant's conviction under Section 6 of the Act of 2012 is set aside and

the appellant is now convicted under Section 10 thereof for a term of six

years, including the tenure already served out. In view of the fine already

imposed by the order impugned, no further fine is imposed.

21. As far as the conviction and resultant sentence under Section 506

of the Penal Code are concerned, there does not appear to be any evidence

of any serious threat for the harshest term of seven years' imprisonment to

be handed down to the appellant. It is true that the appellant's conduct is

inexcusable and the victim asserted that she had been threatened to be

killed if she reported what the appellant subjected her to, to anyone else.

There is no doubt that predidators who prey on young victims intimidate

and threat the victims into silence, but the mere threat - even to kill -

would not warrant the harshest sentence being awarded, unless there is

evidence of something else done to demonstrate that the threat would be

really carried out.

22. Indeed, in this case the evidence reveals that the victim

repeatedly went to the appellant's house, albeit to play with the appellant's

sisters. Without in any manner seeking to belittle the gravity of the offence

or the enormous trauma that the victim may have endured, it is unlikely

that the victim would have kept on going back to the appellant's house as

often as she appears to have done, if she was really intimidated by the

appellant. Quite obviously, the victim may not have known how base an

act she was subjected to and it even appears that on March 17, 2015, the

victim had gone to get money from the appellant.

23. In such circumstances, the sentence passed under Section 506 of

the Penal Code is also reduced to six years to run concurrently with the

prison term for the offence under the Act of 2012.

24. It is needless to state that nothing in this order interferes with the

observation in the impugned judgment that the victim should be adequately

compensated by the State.

25. Accordingly, Crl.A.No.8 of 2020 succeeds in part upon the

conviction for a greater offence being reduced to that of a lighter offence

under the Act of 2012 and the sentence of imprisonment being reduced as

a consequence.

26. Crl.M.C.No.21 of 2020 stands disposed of.

27. Let a copy of this judgment be immediately made available to

the appellant free of cost.

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


Meghalaya
18.05.2022
"Lam DR-PS"