Rajingstar Thabah vs .
2024 Latest Caselaw 121 Meg

High Court of Meghalaya

Rajingstar Thabah vs . on 7 March, 2024

Author: W. Diengdoh

Bench: W. Diengdoh

Serial No.02
Supplementary List       HIGH COURT OF MEGHALAYA
                                AT SHILLONG

        Crl.A.No.31/2022 with
        Crl.M.C.No.76/2022
                                                    Reserved on: 21.02.2024
                                                    Pronounced on: 07.03.2024
        Rajingstar Thabah
                                     Vs.
        1. The State of Meghalaya represented by the Secretary, Government of
           Meghalaya Home (Police) Department, East Khasi Hills District,
           Meghalaya.

        2. Investigating Officer, Mawngap Police Station, East Khasi Hills
           District, Meghalaya.

        3. Smti. Rani Thabah, W/o Shri Kebarius Marbaniang, R/o Mawdngung
           (Sohiong), East Khasi Hills District, Meghalaya
        Coram:
                Hon'ble Mr. Justice S. Vaidyanathan, Chief Justice
                Hon'ble Mr. Justice W. Diengdoh, Judge
        Appearance:
        For the Appellant     :   Mr. K. Ch. Gautam, Adv
        For the Respondents :     Mr. R. Gurung, GA with
                                  Ms. S. Shyam, GA

                                    JUDGMENT

(Made by the Hon'ble Chief Justice)

This Criminal Appeal is directed against the judgment and order

dated 08.07.2022 and the order of sentence dated 11.07.2022, passed by

the Special Judge (POCSO), Shillong in Special POCSO Case No.5 of

2018 and the accused / Appellant herein was convicted by the Trial

Court for an offence under Section 6 of The Protection of Children from

Sexual Offences Act, 2012 (in short „POCSO Act, 2012‟) and sentenced

to undergo Rigorous Imprisonment for a period of 18 years and to pay a

fine of Rs.20,000/-, in default to undergo Simple Imprisonment for

another 3 months. The fine amount was directed to be given to the

victim girl.

Brief Prosecution Case:

2. A complaint was given by the mother of the victim girl on

03.11.2017 before Sohiong Police Outpost, East Khasi Hills, stating that

the accused, namely, Rajingstar Thabah had committed aggravated

penetrative sexual assault on her daughter aged about 5 years and 10

months and also threaten her with dire consequences. Based on the

complaint, FIR (Ex.P2) in Mawngap P.S.Case No.43 (11) 2017 came to

be registered against the accused under Section 6 of the POCSO Act,

2012 read with Section 376(2)(i) and Section 511/506 IPC. Since there

was no material evidence adduced by the prosecution against the

accused under Section 506 IPC, there was no conviction imposed under

the said section.

2.1. After investigation, a charge sheet (Ex.P8) was laid in

C.S.No.05/2018 dated 25.01.2018 and the Court had taken cognizance of

the case. The prosecution, in order to substantiate the commission of the

offence against the accused, has examined as many as 12 witnesses and

marked 8 documents. On the side of the defence, two witnesses were

examined and no document was marked. Statement under Section 164

Cr.P.C. (Ex.P6) was obtained from the victim girl (P.W.2). 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 6 of

the POCSO Act, 2012 and convicted him as stated supra.

3. Learned counsel for the Appellant / accused, amidst several

points raised in the appeal, assailed the judgment and order of the Trial

Court on the sole ground that the appellant has been convicted purely on

the basis of the evidence of the victim girl (P.W.2) and as per the settled

law, the sole testimony must have a sterling quality and instil confidence in

the mind of the Court. Moreover, there was no corroboration of the

evidence of P.W.2 with the medical document. He submitted that there

were several contradictions and inconsistencies in the depositions of P.W.2

between her Section 164 Cr.P.C. statement, chief and cross examinations.

He also pointed out that even as per the version of the Doctor (P.W.7), who

examined the victim girl, she had opined that there was no abnormality

found in her vital part and the hymen was intact, as there was no possibility

of penetration in the private part of the victim girl. The Doctor further

opined that even though there was redness and white discharge on the

vaginal part of the victim girl, it could have been due to unhygienic

infection. He further submitted that in the absence of medical

corroboration, there was no sexual assault on the victim girl by the

appellant herein. He also submitted that there was a delay of two days in

lodging the complaint and there was no explanation forthcoming for the

delay in lodgement of the complaint. Thus, he pleaded that there were

several flaws committed by the prosecution and sought for interference by

this Court in the conviction and sentence awarded by the Trial Court.

4. Per contra, learned Government Advocate appearing for the

State contended that by no stretch of imagination, it can be said that the

evidence of P.W.2 is inconsistent, as the prosecution had, beyond

reasonable doubt, established its case that it was the accused, who had

committed aggravated sexual penetration on the victim girl by means of

both oral and documentary evidence. He further contended that under

Section 29 of the POCSO Act, there is a presumption clause, which not

only brings in the actual offender, but also the abettor and the burden is on

the accused to prove the contrary. Similarly, under Section 30 of the

POCSO Act, there is a presumption of mens rea, which is required to be

discharged by the accused, when the foundational facts are established by

the prosecution. He drew the attention of this Court to the judgment of the

Apex Court in the case of Ganesan vs. State, reported in AIR 2020 SC

5019, wherein it was categorically held that there can be a conviction on

the sole testimony of the victim / prosecutrix, when the deposition of the

prosecutrix is found to be trustworthy, unblemished, credible and her

evidence is of sterling quality. He also contended that since the victim girl

was complaining of stomach ache and pain in her vagina, on enquiry with

the victim girl and after medical examination, the complaint was preferred

against the accused and therefore, the case of the prosecution cannot be

simply propelled through the air on account of the delay of two days in

lodging the complaint and prayed that the present Criminal Appeal is liable

to be dismissed.

5. We have carefully considered the submissions made on either

side and perused the material documents available on record.

6. According to the prosecution, the mother (P.W.1) of the victim

girl (P.W.2) had clearly deposed both in her chief as well as cross-

examinations that pursuant to the severe stomach pain being complained of

by her daughter on 02.11.2017 at night, she was taken to the Community

Health Centre, Sohiong on the following day, wherein she was medically

examined by a Lady Doctor. During such examination, her daughter

informed the doctor that she was raped by the accused, who is none other

than her maternal uncle. Based on her statement, a Police complaint was

lodged and the victim girl was subjected for medical examination at the

Ganesh Das Hospital by the Police. P.W.1 further deposed that she was

present all along, when her daughter was examined. Apart from P.W.1,

there were several witnesses produced by the prosecution, among whom,

the evidence of P.W.3, who is the aunt of the victim girl, weighs much

importance and when she was cross examined, she had deposed that on

coming to know of the sexual assault by the accused, as revealed to her by

the victim girl, she had seen the private part and noticed that there was

redness in the private part.

7. Other witnesses, namely, P.W.4 and P.W.5, who are Staff

Nurses in Ganesh Das Hospital deposed that on the day, victim was

brought for medical examination and they witnessed that the doctor

collected the biological samples from the victim and both P.W.4 and P.W.5

had signed the seizure list which was exhibited as Ex.P3. Similarly, P.W.6

and P.W.8, Lab Technicians in the Civil Hospital deposed that on the day

the accused was brought to the hospital by the police personnel and they

collected the biological samples from the accused on being inculcated by

the doctor, which was then handed over to the police in a sealed and

packed condition. Both the P.Ws.6 & 8 signed in the seizure, which was

exhibited as Ex.P4.

8. The main thirst of argument advanced by the learned counsel

for the appellant was that conviction was inflicted on the appellant, owing

to the sole testimony of the victim girl and the said testimony is not

corroborated with the medical evidence. It was further argued that the

sentence awarded to the accused may be reduced, as there was no evidence

of penetrative sexual assault committed by the accused. In support of his

submission, he relied on the relevant passage of the deposition of Doctor

(P.W.7), who, in her statement, had categorically deposed as under:

"Chief Examination 1 to 6...

7. On general examination I found that there is no abnormality detected. All her vitals were in normal limit.

8 to 10"

"Cross-Examination 1 & 2...

3. During my examination mild redness around the vaginal area and white discharge was detected on the victim.

4. I agree that the redness and white discharge of the vaginal areas may be due to some other factors like unhygienic, infection.

5. I state that even though there is no torn in the hymen and in this case as a victim was just 5 years old, there may not be penetration, but it could be superficial.

6...."

9. P.W.7 clarified in her cross-examination, stating that there is

no torn in the hymen and as the victim was just 5 years old, there may not

be penetrative assault, which could only be superficial. Learned counsel for

the appellant has projected this part of examination to vindicate that there

was no aggravated penetrative sexual assault on the victim at all and the

offence under Section 6 of the POCSO Act, 2012 will not get attracted in

the case on hand.

10. Before going into the veracity of the argument put forth by

the learned counsel for the Appellant, let us analyse the statement made by

the victim girl at various point of time so as to ensure whether the versions

of the victim girl instil confidence in the mind of this Court. In her 164

statement, she had deposed as under:

"My uncle ("marit) Rajing raped me. He raped me near the veranda of thei‟s house. He raped me in my vagina (and she pointed towards her vagina to show the place he raped her). He did eh eh. He beat me with a stick (and she pointed to her bump indicating the place where he beat her.) He inserted a stick in my vagina. He pinched me. He

told me that if I told people he would give me to the police. I told my sister ("kong"). After that he went home. This is all that I have to say."

In her examination-in-chief, she had elaborated the incident as under:

"1 & 2.

3. I want Marit should be punish because he has done wrong thing to me.

5...

6. Marit had inserted his private part after making me like down in my private part and when he inserted it pain and I cried. The accused thereafter ran away....."

Her Chief Examination goes thus,

"1 to 4...

5. On the day of the incident my mother was at home. A person can be heard from the place of occurrence to my house..."

11. Even though the victim girl had repeatedly deposed that the

accused had inserted his private part into her vagina, a careful analysis

of the evidence unearths that there may be a superficial penetration, on

account of which, hymen was intact and not torn. It was further stated in

response to the deposition of P.W.3 that unhygienic factors may be a

reason for white discharge and other symptoms around the vaginal area.

Even P.W.3 in her deposition, had stated that she did not see the

incident and upon enquiry with the victim girl, she had noticed redness

in the private part of the victim girl. Thus, we could visualize that there

was no medical corroboration with the evidence of witnesses, as, except

the victim girl, no one had been produced on the side of the prosecution

to establish the offence of sexual assault on the victim girl. At the same

time, the theory of the prosecution version cannot be brushed aside on

the reasoning that the accused, while questioning him under Section 313

had not denied that he was not present at the scene of occurrence, as he

had stated that he was having conversation with the girl at the relevant

point of time during dusk hours. Of course, there are slight

contradictions and inconsistency between the medical and the ocular

testimony, which alone cannot be the basis for doubting the case of the

prosecution.

12. Insofar as the plea raised in respect of delay in lodging

complaint is concerned, it is not a fatal to the case of the prosecution

and there would be several formalities before preparation of FIR and it

is the duty cast upon the Court to see whether all those formalities had

been completed within a reasonable and there is no procedural lapse or

undue delay at any stage of the case. The Hon'ble Supreme Court, while

dealing with a motor accident case in Ravi vs Badrinarayan & Others,

reported in (2011) 4 SCC 693, held as follows:

"21. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquility of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons."

13. Now, the question before us is whether the Trial Court is

justified in convicting the accused to undergo imprisonment for a

period of 18 years and to pay a fine of Rs.20,000/-, in default to

undergo Simple Imprisonment for another 3 months, albeit

contradictions and inconsistencies found in the evidence of

witnesses, especially when the entire case rests on the sole testimony

of the victim girl. The period of punishment prescribed for the

offence committed under Section 6 of The POCSO Act, 2012, prior

to the amendment dated 16.08.2019 is as under:

"6. Punishment for aggravated penetrative sexual assault - Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may

extend to imprisonment for life and shall also be liable to fine."

Subsequently, the Parliament in its wisdom modified the period of

punishment for the offence committed under Section 6 of The

POCSO Act, 2012, by way of substitution and amendment by Act

25 of 2019, which is extracted hereunder:

"6. Punishment for aggravated penetrative sexual assault -

(1) Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death.

(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim."

14. It is not known as to why the Trial Court had convicted

and sentenced the accused to undergo Rigorous Imprisonment for a

period of 18 years. Admittedly, the commission of the offence had

taken in the year 2007, namely, prior to the amendment of the Act

and the minimum punishment that may be imposed on the proved

offence was only not less than 10 years and as such, the Trial Court

had mechanically imposed the punishment, when there was no

corroboration with the medical evidence to connect the accused with

the alleged offence of aggravated penetrative sexual assault, except

with the sole testimony of the victim girl and the own statement of

the accused under Section 313 to prove his presence on that day so

as to draw presumption under Section 29 of the POCSO Act, 2012.

In our considered opinion, the Trial court could have been carried

away by the new enactment and proceeded to impose such

punishment on the accused.

15. 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 period of imprisonment for a period of 18 years

that has been awarded on the appellant is reduced to 10 years.

16. In the result, this Criminal Appeal is allowed in part and

the conviction and sentence passed by the Court below dated

08.07.2022 and the order of sentence dated 11.07.2022, passed by

the Special Judge (POCSO), Shillong in Special POCSO Case No.5

of 2018 is modified to the extent that the Appellant shall undergo

Rigorous Imprisonment for ten years and to pay a fine of

Rs.20,000/-, in default to undergo Simple Imprisonment for another

3 months. As ordered by the Trial Court, the fine amount shall be

disbursed 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. Except the reduction in the quantum of

punishment, the rest of the judgment of the Trial Court holds good

in all other respects.

          (W.Diengdoh)                     (S.Vaidyanathan)
             Judge                            Chief Justice



 Meghalaya
 07.03.2024
"Lam DR-PS"/"ar"




                                     PRE-DELIVERY JUDGMENT IN
                                            Crl.A.No.31 of 2022 with