High Court of Meghalaya
Shri Disroywel Wahlang vs . State Of Meghalaya on 16 August, 2024
Author: W. Diengdoh
Bench: W. Diengdoh
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Serial No.02 HIGH COURT OF MEGHALAYA
Supplementary List AT SHILLONG
Crl.A.No.1/2024
Reserved on: 14.08.2024
Pronounced on: 16.08.2024
Shri Disroywel Wahlang Vs. State of Meghalaya
Coram:
Hon'ble Mr. Justice S. Vaidyanathan, Chief Justice
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Appellant : Mr. R.Debnth, Adv
For the Respondent : Mr. N.D. Chullai, AAG with
Ms.Z.E.Nongkynrih, GA
i) Whether approved for Yes
reporting in Law journals etc.:
ii) Whether approved for publication Yes
in press:
JUDGMENT
(By the Hon'ble Chief Justice)
This Criminal Appeal is directed against the judgment and order
dated 26.07.2023 and the order of sentence dated 31.07.2023, passed by
the Special Judge (POCSO), Ri-Bhoi District, Nongpoh in Special
(POCSO) Case No.34 of 2018 and the accused / Appellant herein was
convicted by the Trial Court for the offences under Sections 3(a)/4/7/8
of The Protection of Children from Sexual Offences Act, 2012 (in short
'POCSO Act, 2012') punishable under Sections
319/321/323/354/354B/361/366/375(a) falling under 375(2)(i)(j) IPC,
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1860 by invoking Section 42 of the POCSO Act, 2012 (alternative
punishment) and sentenced as follows:
Offence Conviction and Sentence
Section 323 IPC To undergo one year imprisonment with fine
of Rs.1,000/-, in default to undergo another
one month imprisonment
Section 354B IPC To undergo seven years imprisonment with
fine of Rs.20,000/-, in default to undergo
another three months imprisonment
Section 366 IPC To undergo ten years imprisonment with
fine of Rs.50,000/-, in default to undergo
another six months imprisonment
Section 376(2) IPC To undergo thirty years Rigorous
Imprisonment with fine of Rs.2,00,000/-, in
default to undergo another one year
imprisonment
Section 8 of POCSO Act, To undergo five years imprisonment with
2012 fine of Rs.50,000/-, in default to undergo
another six months imprisonment
The Trial Court held that the convict is entitled to the benefit of Section
428 Cr.P.C. and the period already undergone in prison was ordered to
be set off. The sentences were ordered to run concurrently and the fine
amount was directed to be paid to the victim girl. Aggrieved by the
order of the Special Judge (POCSO), Ri-Bhoi District, Nongpoh, dated
26.07.2023 and the order of sentence dated 31.07.2023, the Appellant
has preferred this Criminal Appeal before this Court.
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Brief Prosecution Case:
2. A complaint was given by the mother / P.W.2 of the victim girl
on 03.12.2016 before Umsning Out-Post Police Station, Ri-Bhoi
District, stating that the accused, namely, Wahlang had committed
aggravated penetrative sexual assault on her daughter aged about 13
years and also raped her on 01.12.2016. Based on the complaint, FIR
(Ex.P6) in Nongpoh P.S.Case No.212 (12) 2016 came to be registered
on 04.12.2016 against the accused under Sections 363, 323, 376 (2) (i)
and 506 IPC r/w Section 4 of the POCSO Act, 2012.
2.1. After investigation, a Charge Sheet No.65 of 2017 dated
29.06.2017 was laid under Sections 363, 323, 376 (2) (i) and 506 IPC
r/w Section 4 of the POCSO Act, 2012 and the Special Judge (POCSO),
Ri-Bhoi District, Nongpoh had taken cognizance of the case in Special
(POCSO) Case No.34 of 2018. The prosecution, in order to substantiate
the commission of the offence against the accused, had examined as
many as 12 witnesses, exhibited 37 documents and marked 20 material
objects. On the side of the accused, neither witnesses were examined
nor documents marked. Statement under Section 164 Cr.P.C. was
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obtained from the victim girl (P.W.1). The accused was questioned
under Section 313 Cr.P.C. and he denied the charges levelled against
him. The Trial Court, after analyzing the evidence let in by the
prosecution, found the accused guilty of the offence under Section 8 of
the POCSO Act, 2012 along with other IPC offences and convicted him
as stated supra.
3. The learned counsel for the appellant submitted that a false
case has been foisted against the appellant without any conclusive proof
against the accused and there were several inconsistencies and
discrepancies in the evidence of the victim girl, inasmuch as on one
hand, she deposed that she knows the accused and on the other, during
cross examination, she denied her personal knowledge about the
accused. Above all, in her deposition in cross, she stated that the
accused was her boyfriend. In many places during cross examination,
she did not refuse her relationship with the accused. It was further
submitted that the evidence of the victim girl (P.W.1) weighs more
importance in a case of this nature and when inconsistencies were found
in her statements, certainly, it can be inferred that there is a possibility
of tutoring of the victim girl.
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4. The learned counsel for the appellant also submitted that the
prosecution failed to corroborate the evidence of the accused with the
medical documents, as the Doctor (P.W.6) clearly deposed that there
was no sign of any recent sexual intercourse and there was no external
injury noted. As per the evidence of P.W.6 (Doctor), there was no visible
injury in the private part of the victim girl, thereby contradicting the
evidence of P.Ws.1 and 2. P.W.8 (grandmother of the victim girl)
deposed that an unknown person raped her granddaughter, as she was
not aware of the real episode. Though the appellant was convicted on
the basis of the medical report, which was one of the base to convict the
appellant, in the absence of sign of penetrative sexual assault, it does
not support the case of the prosecution. Thus, there was no
corroboration of evidences of P.Ws.1 & 2 with the medical documents.
Thus, he pleaded that there were several contradictions in the case of the
prosecution and sought for interference by this Court in the conviction
and sentence awarded by the Trial Court.
5. Per contra, learned Additional Advocate General appearing for
the State contended that the victim girl (P.W.1) in her examination-in-
chief had clearly deposed that the accused pulled her into a jungle and
committed the offence of rape. The Doctor (P.W.6) in her examination
categorically deposed that after clinical examination, the findings were
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that there were multiple injuries on the body of the victim girl and
genital injury are consistent with recent sexual assault. Thus, the
evidence of P.Ws.1 and 2 had duly been fortified by the medical
examination. The Apex Court in the case of State of U.P. Vs. Babul
Nath, reported in 1994 (6) SCC 39 observed that even an attempt to
penetration will constitute the offence. The relevant Paragraph No.8 is
extracted below:
"8.......From the explanation reproduced above it is
distinctly clear that ingredients which are essential for proving a
charge of rape are the accomplishment of the act with force and
resistance. To constitute the offence of rape neither Section 375
of I.P.C. not the explanation attached thereto require that there
should necessarily be complete penetration of the penis into the
private part of the victim/prosecutrix. In other words to
constitute the offence of rape it is not at all necessary that there
should be complete penetration of the male organ with
emission of semen and rupture of hymen. Even partial or
slightest penetration of the male organ within the labia majora
or the vulva or pudenda with or without any emission of semen
of even an attempt at penetration into the private part of the
victim would be quite enough for the purpose of Sections 375
and 376 of I.P.C. that being so it is quite possible to commit
legally the offence of rape even without causing any injury to
the genitals or leaving any seminal stains...."
6. Learned Additional Advocate General appearing for the State
further contended that when the deposition of the prosecutrix is found to be
trustworthy, unblemished, credible and of sterling quality in terms of the
judgment of the Apex Court in the case of Ganesan vs. State, reported in
2020 (10) SCC 573, there is no other corroboration required to prove the
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guilt of the accused. The prosecution was able to prove the presumption
clause provided under Section 29 of the POCSO Act beyond reasonable
doubt through various depositions and evidences. As per Section 29 of the
POCSO Act, 2012, burden shifts on the accused to prove his innocence and
there was no explanation offered by him to the questions posed to him
under Section 313 Cr.P.C., as his answers to the questions were mostly
stereotyped, such as "I do not know" and "I have no knowledge" and there
was no attempt made by the accused to disprove the allegations leveled
against him. He drew the attention of this Court to the judgment of the
Apex Court in the case of Bharwada Bhoginbhai Hirjibhai Vs. State of
Gujarat, reported in 1983 (3) SCC 217, wherein it was categorically held
that the evidence of victim to the offence is of paramount importance and
the Court cannot shrug off the case of the prosecution merely for want of
strict corroboration.
"11. In view of these factors the victims and their
relatives are not too keen to bring the culprit to books. And
when in the face of these factors the crime is brought to light
there is a built-in assurance that the charge is genuine rather
than fabricated.
On principle the evidence of a victim of sexual
assault stands on par with evidence of an injured witness. Just
as a witness who has sustained an injury (which is not
shown or believed to be self inflicted) is the best witness in
the sense that he is least likely to exculpate the real offender,
the evidence of a victim of a sex-offence is entitled to great
weight, absence of corroboration notwithstanding. And while
corroboration in the form of eye witness account of an
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independent witness may often be forthcoming in physical
assault cases, such evidence cannot be expected in sex
offences, having regard to the very nature of the offence.
It would therefore be adding insult to injury to
insist on corroboration drawing inspiration from the rules
devised by the courts in the Western World, Obeisance to
which has perhaps become a habit presumably on account of
the colonial hangover. We are therefore of the opinion that if
the evidence of the victim does not suffer from any basic
infirmity, and the probabilities-factor' does not render it
unworthy of credence, as a general rule, there is no reason to
insist on corroboration except from the medical evidence,
where, having regard to the circumstances of the case, medical
evidence can be expected to be forthcoming, subject to the
following qualification: Corroboration may be insisted upon
when a woman having attained majority is found in a
compromising position and there is a likelihood of her
having levelled such an accusation on account of the instinct
of self-preservation. Or when the 'probabilities-factor' is
found to be out of tune.
Thus, it was prayed that the present Criminal Appeal is liable to be
dismissed.
7. We have carefully considered the submissions made on either
side and perused the material documents available on record.
8. The victim child in this case was aged about 13 years, at the
time of the incident as stated by the mother of the victim girl (P.W.2) in the
complaint (Ex.P6). The incident had taken place on 01.12.2016 and on that
day, when the victim girl had gone out to bring her relative home, the
accused had pulled her into a jungle and raped her by sealing her mouth
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with his hand. The victim child was examined as P.W.1, who stated in her
evidence-in-Chief as follows:
"2. In the jungle he laid me on the ground and
opened both my underwear and my pant and he also opened
his pant and he raped me. I tried to free myself from his
clutches but it was in vain. I could not scream for help as he
covered my mouth with his hand.
3. After he finished to commit the offence he let go
of me and I went home, I could not collect my clothes but I
just covered with my shawl that I had with me. When I
reached home my mother saw my condition and inquired
from me what had happened to me and I told her about the
incident. At the time of the incident my back, buttock, thigns
and legs were all bruised."
The complaint was given by P.W.2 (mother of the victim girl) on
03.12.2016, based on which, a case was registered in Nongpoh P.S.Case
No.212 (12) 2016. P.W.2 had deposed before the Court in his examination-
in-chief as under:
"6. Later my victim daughter came home and she
was half naked and covered herself only with a shawl. My
husband on seeing this he was about to beat her but her
uncle prevented him. We then asked her what happed to
her but she could not speak. After about half an hour she
was able to inform us about the incident but she could not
tell the name of the perpetrator. Next morning when we
keep on asking her about the perpetrator and she then told
that his name is Bu Wahlang."
9. In addition to the above, the victim child's statement under
Section 164 Cr.P.C. was recorded, wherein she had deposed as under:
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"On the night of 1-12-16, at around 7:00pm, I
went out of my house to fetch my Meiduh's daughter
from Meiduh's house. One person namely Bu Wahlang
pulled me from Meiduh's compound and took me to the
jungle. He opened my pant and raped me there in that
jungle. He opened all my clothes and forced himself on
me. Thereafter Bu left me alone in the jungle and left. I
could not find my clothes in the jungle as it was dark, so I
came back home naked. My parents asked me as to why I
was naked and where I had been. I told them that Bu had
forcefully pulled me from Meiduh's compound and that
he had taken out all my clothes and raped me.
That is all I have to say."
10. To corroborate the evidence of P.Ws.1 and 2 medically and
scientifically, it is worthwhile to analyse as to what was the deposition of
P.W.9 (Deputy Director, Forensic Science Laboratory) and the result of
examination was as follows:
"After thorough and careful examination of
Ex.A1, Ex.A2, Ex.A3, Ex.A4, Ex.A5, Ex.A6, Ex.A7,
Ex.A8, Ex.A9, Ex.A10, Ex.A11, Ex.A16, Ex.A17, Ex.B4
and Ex.B5, seminal material was not detected. Blood
material was detected only on Ex.A5, Ex.A6, Ex.A7 and
Ex.A8. Blood group 'B; was detected on Ex.A14,
Ex.A15, Ex.A5 and Ex.A6 and blood group 'A' was
detected on Ex.B1 and Ex.B2."
12. There is no conclusive opinion rendered by the Scientific
Officer (P.W.9) as there were no semen samples found in the clothes of the
victim girl and there was a doubt with regard to sexual intercourse, but,
however, stated that the blood group belonged to the victim girl. The
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Doctor (P.W.6) also opined that there were injuries found on the body of
the victim and had given the Medical Report marked as Ex.P1 to that
effect. In her cross examination, P.W.6 stated that the cause of the injury is
due to forceful penetration, by further deposing as under:
"Genital Injury - Cruciate tears over the hymen consistent
with any forceful penetration, bleeding minimal on swab
collection consistent with recent timeline of injury sustained
of 2 (two) days back."
13. The next plea advanced by the learned counsel for the
appellant in respect of the delay in lodging the FIR, we find no force in
the submission of the learned counsel for the accused for the reason that
as rightly pointed out by the learned Additional Advocate General, the
case relating to a minor girl must be handled with utmost care and there
is no hard and fast rule in registration of FIR in a time framed manner.
14. The Hon'ble Supreme Court, in the case of State of Himachal
Pradesh Vs. Prem Singh, reported in AIR 2009 SC 1010, had
considered the issue of delay in respect of offences involving sexual
assault at length and observed as under:-
"So far as the delay in lodging the FIR is concerned, the
delay in a case of sexual assault, cannot be equated with
the case involving other offences. There are several factors
which weigh in the mind of the prosecutrix and her family
members before coming to the police station to lodge a
complaint. In a tradition bound society prevalent in India,
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more particularly, rural areas, it would be quite unsafe to
throw out the prosecution case merely on the ground that
there is some delay in lodging the FIR."
15. From the above, this Court finds no missing link or
discrepancy in the case of the prosecution and there was a proper
corroboration of statements of witnesses with the documentary evidence.
Therefore, no other inference can be drawn than the one that it was the
accused, who molested the victim girl. The evidence of P.W.1 before the
Court was quite natural and cannot be said to be a tutored one.
16. However, the learned counsel for the Appellant prayed for
reduction of sentence, by submitting that the proved facts show that the
victim girl (P.W.1) and the accused were in relationship, which was admitted
by the victim girl in her cross examination, which reads as follows:
"11. At the time of the incident I was in a relationship
with the accused person."
17. The incident had taken place in the year 2016 and at that time,
the accused was aged about 21 years, which was after the Criminal Law
(Amendment) Act, 2013 that came into existence with effect from
03.02.2013 after receiving assent of the President, vide which the
punishment for rape under Section 376 IPC has been increased as under:
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"376. Punishment for rape - (1) Whoever, except in the
cases provided for in sub-section (2), commits rape, shall be
punished with rigorous imprisonment of either description for a
term which [shall not be less than seven years, but which may
extend to imprisonment for life, and shall also be liable to fine."
18. Even the said punishment was subsequently increased to ten
years with effect from 21.04.2018 by Act 22 of 2018. Since Statute had
given liberty to extend the punishment for life, it does not mean that all
accused persons must be imprisoned for life irrespective of the facts and
circumstances involved. The Trial Court sentenced the accused to undergo
thirty years Rigorous Imprisonment with fine of Rs.2,00,000/-, in default to
undergo another one year imprisonment under Section 376 IPC, which, in
our considered opinion, was on the higher side and the accused will not get
any chance to repent himself for commission of the offence. That apart, the
deposition of the victim girl that she was in relationship with the accused,
cannot be brushed aside. Thus, taking into consideration the entire facts and
circumstances of the case, we are of the view that interests of justice will be
served, if the life imprisonment imposed under Section 376 IPC that has
been awarded on the appellant is reduced to the minimum sentence of 7
years.
19. In the result, this Criminal Appeal is allowed in part and the
judgment and order dated 26.07.2023 and the order of sentence dated
31.07.2023, passed by the Special Judge (POCSO), Ri-Bhoi District,
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Nongpoh in Special (POCSO) Case No.34 of 2018 in respect of Section 376
IPC alone is modified to the extent that the Appellant shall undergo
Rigorous Imprisonment for seven years and to pay a fine of with fine of
Rs.2,00,000/, in default to undergo another six months imprisonment. As
ordered by the Trial Court, the Sentences shall run concurrently and the
total fine amount awarded as compensation is directed to be paid to the
victim girl, if not already paid. It is made clear that the appellant shall be
entitled for set off in accordance with Section 428 of the Code of Criminal
Procedure for the period of detention already undergone by him. It is
reiterated that except the reduction in the quantum of punishment in respect
of Section 376 IPC, the rest of the judgment of the Trial Court holds good
in all other respects.
(W.Diengdoh) (S.Vaidyanathan)
Judge Chief Justice
PRE-DELIVERY JUDGMENT IN
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