Swill Lhuid vs . State Of Meghalaya & Ors
2022 Latest Caselaw 588 Meg

        Serial No.07
        Regular List
                        HIGH COURT OF MEGHALAYA
                               AT SHILLONG
Crl.A.No.17/2022
                                                 Date of Order: 13.10.2022
Swill Lhuid                       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 with
                                       Ms. R. Biswa, Adv

For the Respondents                  : Mr. R. Gurung, GA

JUDGMENT: (per the Hon'ble, the Chief Justice) (Oral) The appellant has been convicted under Section 5(m) of the

Protection of Children from Sexual Offences Act, 2012 and sentenced to

15 years' rigorous imprisonment and a fine of Rs.10,000/-. In default in

payment of the fine, the appellant is to undergo simple imprisonment for a

further three months.

2. The judgment of conviction was passed on April 28, 2022 and

the sentence was pronounced later on the same day.

3. The first information report in this case was lodged by the mother

of the survivor. The mother claimed in the complaint that the appellant

herein had raped her daughter who was seven and a half years old. The FIR

lodged on March 4, 2018 claimed that the incident took place on March 2,

2018.

4. Prior to the lodging of the complaint, the girl child was taken to

the district hospital at Ialong for medical examination. The report reveals

that she was brought to the hospital at 4:30 pm on March 3, 2018 by her

mother, aunt and another. The mother recorded in her statement given to

the medical examiner that a 10-year-old neighbour informed the mother of

the survivor that he saw the appellant was with the girl in the jungle near

her residence. Upon being so informed, the mother reportedly asked her

daughter and was told that the man "sexually assaulted her after luring her

with Rs.10/- and bought 'Rum Pum'."

5. The medical examiner recorded in the report that the survivor

had claimed that her vagina had been penetrated by the appellant's penis

and that there was ejaculation on her private parts. Upon the examination

of the survivor's genital parts, the medical report observed in connection

with the examination of the survivor's fourchette, introitus and hymen as

follows:

"Laceration, red, tender on touch on Rt. side."

6. Though the hymen was found to be intact but the laceration and

tenderness was said to be as a result of penetrative activity within between

12 and 24 hours prior to the examination. The opinion expressed by the

medical examiner in the report was that there were signs suggestive of

recent vaginal penetration. However, the medical examiner issued a caveat

to the effect that the final opinion would be expressed after receipt of the

report from the forensic science laboratory. The forensic science report was

referred to since the vaginal swab of the survivor was obtained and sent for

examination together with the clothes that the survivor claimed to have

been wearing at the time of the incident.

7. It does not appear that any forensic science laboratory report

finally arrived or was presented in course of the trial. It also transpires that

the narration of the incident by the 10-year-old neighbour as reported by

the mother of the survivor was quite at variance with the testimony of the

concerned boy at the trial. The appellant contends that in the light of the

exaggerated version of the neighbour's reporting of the incident by the

survivor's mother, it is evident that the survivor and her family had some

angst against the appellant to bring a completely baseless charge against

him.

8. The appellant also maintains that the appellant was not medically

examined to ascertain whether the appellant, said to be aged 60 at the

relevant time, was capable of performing sex. The appellant suggests that

apart from the fact that the hymen appears to have been intact in the present

case, the medical examination was conducted more than 24 hours beyond

the time of the incident and, as such, the tentative opinion expressed in the

medical examination report to the effect that the survivor had been

subjected to sexual assault within the previous 24 hours, would not cover

the time of the incident.

9. Both the survivor and the young neighbour who reported the

incident to the survivor's mother rendered statements under Section 164 of

the Code of Criminal Procedure, 1973. The survivor was consistent in the

description of the material incident, though the appellant seeks to refer to

perceived inconsistencies in her two statements. According to the survivor,

the appellant apparently asked the survivor to come with the appellant on

the relevant date when the survivor refused and the appellant, thereafter,

offered to "buy snacks for me so I went with him." The survivor then went

on to recount the incident in the following words:

"He then took me to a forest which is far from my house and on reaching the forest he asked me to take off my pants and to lie down on the ground.

Later, he also took off his pants and insert his penis into my private part (vagina) and sexually assaulted me. I cried and it was paining but he told me not to cry and also not to tell anyone at home.

After sexually assaulting me, he then took me to a nearby shop and bought 2(two) packets of Rum Pum for me and dropped me back home and saw him going to a wine store. On reaching home, I shared the snacks bought by (appellant) to my siblings and did not tell anyone about the incident. Mr. ... (young witness) who is my senior in school saw the incident that had happened to me in the place of occurrence and he told to other children about it who are also my relatives."

10. In course of the trial, the young survivor claimed that the

appellant came to her house and asked her to accompany him to buy

eatables, but the appellant took her to a nearby jungle near the Civil

Hospital, Ialong. The survivor continued, that on reaching the jungle, the

appellant herein asked her not to inform anybody of the incident. She then

recollected,

"Thereafter, he took off my pants and he also took off his pant and lie on top of me and he inserted his private part into mine

and I cried as it was paining and the accused person asked me to keep quiet and not to cry."

11. The young girl went on to say that the appellant thereafter bought

two packets of snacks and left her at her grandmother's house. She

recounted that on the next morning, the neighbour named Dayoodap

"informed my mother as he saw the incident that happened in the jungle."

The girl remembered that she was taken to the Civil Hospital at Ialong

where "I was informed that there is tear in my private parts ..."

12. Though it appears that the survivor was subjected to some

searching cross-examination, she held firm, both as to the narration of the

incident and the fact that the incident was witnessed by a young neighbour

named Dayoodap.

13. By the time the young neighbour was examined at the trial, he

was 14 years old. He claimed that he was on his way to buy biscuits on the

relevant date when he saw the accused taking the survivor to the nearby

jungle "and in the jungle I saw the accused person hugging the victim ..."

14. Though the young witness indicated in his cross-examination

that he did not see the appellant herein committing penetrative sexual

assault, but he maintained that he saw the appellant hugging the victim.

15. The rest of the evidence, including that of the medical examiner,

does not add to or detract from the overall picture as made out. The only

further thing of note is that in the young witness's statement recorded under

Section 164 of the Code, he indicated the time of the incident to be around

5 pm or thereafter.

16. The trial court referred to the entirety of the evidence,

particularly the statements of the survivor, those of the 10-year-old witness

and of the mother of the survivor who had lodged the complaint. The trial

court referred to Supreme Court judgments to the effect that if the statement

of the survivor appeared to be honest and acceptable, the fact that such

statement was not corroborated by any other would not detract from the

veracity or credibility thereof. In such light, the trial court went on to

analyse what the young survivor had stated, both before the magistrate in

course of her statement recorded under Section 164 of the Code and in

course of her testimony at the trial. The trial court found no material

inconsistency in the narration or description of the incident. The trial court

referred to the mother's version of what the 10-year-old witness reported

to her and the testimony of the then 14-year-old witness and found no

anomaly or exaggeration that would diminish the acceptability of the

complaint.

17. There is no doubt that in the evidence of the mother of the

survivor, she claimed that the 10-year-old Dayoodap had reported to her

that he had seen the appellant raping the survivor. However, in his own

statements before the magistrate and at the trial, Dayoodap merely referred

to the appellant hugging the survivor. Indeed, Dayoodap admitted in the

cross-examination at the trial that he had not witnessed penetrative sexual

assault by the appellant on the survivor. There is no doubt that the relevant

boy did not assert in course of either statement that the appellant had raped

the survivor, but the boy maintained that the appellant had embraced the

survivor. This would lend credence to the survivor's statement and the

understanding by the mother of the survivor that the embrace that the young

witness referred to was the act of the appellant raping the survivor.

18. The matter appears clear from the answer given by the appellant

in course of his examination under Section 313 of the Code. In response to

the first question put by the trial court as to the assertion of the complainant

that the appellant had raped the complainant's daughter, the appellant

claimed that on the relevant date, he was on his way to the Civil Hospital

at Ialong when he met the survivor and the survivor asked the appellant to

buy her some eatables for which the appellant gave her Rs.10/- and "I left

her". Contrast the above version of the appellant with his answer to the

third question put to him by the trial court. So that the appellant's words

are not distorted, the entirety of his answer to the third question is extracted:

"I went to buy eatables for the victim and took her for a walk. When I attend nature call, suddenly the victim ran towards me as she is afraid of some people"

19. It may do well to notice at this stage that the third question put to

the appellant in course of his examination under Section 313 of the Code

pertained to the mother of the survivor asserting that she had confronted

the appellant with the young witness and the appellant had violently reacted

thereto. Clearly, the appellant's answer to the third question contradicted

the appellant's answer of the first question when he claimed to have given

some money to the survivor upon being asked to buy eatables for her and

having left her.

20. More contradiction is found in the answer to the fourth question.

As noticed earlier, the third question pertained to the mother of the survivor

confronting the appellant with the young witness. The fourth question

pertained to the mother's assertion that the appellant had attempted to

assault the young witness when the mother had confronted the appellant

with the young witness. To the fourth question, the appellant answered

thus:

"I denied it, in fact it was Ribha (mother of the survivor) who assaulted me three times. It was only me and Ribha who was present and Ioodap Pale (the young witness) was not present when she confronted me."

21. The appellant's answer to the fourth question and the complete

denial of the young witness being present when the mother of the survivor

confronted the appellant, is in sharp contrast to the veritable admission of

the presence of the young witness in the appellant's answer to the third

question.

22. Thus, to start with, the appellant claimed that his interaction with

the survivor on the relevant date was limited to the survivor requesting the

appellant for some eatables and the appellant giving her Rs.10/- and

walking away. He altered his stand to next say that he went to buy eatables

for the survivor and took the survivor for a walk. As to the young witness's

assertion that he hugged or embraced the survivor, the appellant made out

a story that the survivor was afraid of some people and ran towards the

appellant even when the appellant was answering the nature's call. To top

it all, the appellant denied having been confronted by the young witness,

though the appellant had virtually admitted to the same in response to a

previous question.

23. There is no doubt that the material collected in course of the

medical examination should have been tested and the forensic report

presented at the time of the trial. But judicial notice has also to be taken of

the inordinate time - sometimes running into years - taken by the forensic

science laboratories or of reports not being collected in the tardy process of

investigation that is conducted in this country. Oftentimes, because of the

lack of sufficient personnel, the investigating agency is severely

handicapped in the conduct of the several investigations simultaneously.

24. Without attempting to fill in any lacuna that may have been left

by the investigation, it is necessary to ascertain whether the mere failure to

obtain or produce the FSL report would be fatal to the case made out by the

prosecution here. Here was an 11-year-old girl recounting an incident that

had taken place four years earlier and corroborating, almost to the finest

detail, the statement that she had contemporaneously rendered under

Section 164 of the Code. Apart from the fact that the statement of the

survivor in this case comes through as natural and believable, there is no

case of any motive made out against either the survivor or her mother.

Indeed, not only did the appellant fail to explain his presence at the place

of occurrence, but in the contradictory statements made by the appellant in

course of his examination under Section 313 of the Code, the guilt of the

appellant clearly comes through.

25. Penetrative sexual assault, for the purpose of the relevant

provision, does not require deep or complete penetration. The slightest

amount of penetration would suffice for the purpose. The medical

examination report revealed penetration, albeit at the level of the introitus.

Even though the hymen may have been intact so as to indicate that the

extent of penetration may not have been to any great length, the factum of

penetration was medically established. There is no basis to the appellant's

assertion that the examination was conducted on the survivor long after the

time of the alleged incident, particularly since the young witness claimed

the incident to have taken place at or after 5 pm on March 2, 2018 and the

survivor was examined at or about 4:30 pm on March 3, 2018. It is true that

the appellant ought to have been medically examined to ascertain whether

he was capable of maintaining an erection, given the age attributed to the

appellant at the time of the commission of the offence. However, merely

because the investigating agency may not have been alert would not

otherwise require the case made out against the appellant to be thrown out

on such score.

26. The trial court viewed the incident on the basis of the oral

evidence that was presented at the trial and in the light of the statements

earlier recorded under Section 164 of the Code. The trial court was justified

in arriving at the conclusion that it was established beyond reasonable

doubt that the appellant had sexually assaulted the minor survivor.

27. There is no merit in the appeal and no cause for interference with

either the judgment of conviction or the consequent sentence awarded to

the appellant.

28. Crl.A.No.17 of 2022 is dismissed.

29. Let an authenticated copy of this judgment and order be

immediately made available to the appellant free of cost.

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

Meghalaya
13.10.2022
 "Lam DR-PS"