Meghalaya High Court
Robin N. Marak vs . State Of Meghalaya on 16 February, 2022
Bench: Sanjib Banerjee, W. Diengdoh
Serial No. 02
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG
Crl.A.No.14/2019
Date of Order: 16.02.2022
Robin N. Marak Vs. State of Meghalaya
Coram:
Hon'ble Mr. Justice Sanjib Banerjee, Chief Justice
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant (s) : Dr. N Mozika, Legal Aid Counsel
For the Respondent (s) : Mr. ND Chullai, AAG with
Mr. AH Karwanlang, GA
JUDGMENT:(per the Hon'ble, the Chief Justice) (Oral) The appellant has been convicted for having committed an offence under Section 376 of the Indian Penal Code, 1860 read with Section 6 of the Protection of Children from Sexual Offences Act, 2012. The appellant has served out nearly eight years of the ten-year sentence suffered by him.
2. The incident is of September 8, 2014. The complaint lodged with the Williamnagar Women's Police Station on September 9, 2014 by the mother of the victim claimed that the mother had gone to the market on the previous day and had left her daughters at home in village Wari Mandal. The FIR asserted that when the mother returned in the evening, she found her seven-year-old daughter not at home. The mother claimed that she undertook a search of the nearby areas along with her family members and, at around 5 pm, she found the victim lying in an unconscious state by the nearby jungle stream. The FIR also stated that after the victim was brought home and after she regained her consciousness, she revealed that she had gone to take a bath and wash her younger sister's nappies in the stream, when the appellant herein, who resided in the same village, took her to the upper side of the stream and sexually assaulted her.
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3. In course of the investigation, the victim narrated the incident and at the time of her deposition at the trial, the victim claimed that she knew the appellant and clearly described that the appellant had raped her, whereupon she became unconscious from the pain that she had to bear. She claimed that when she returned to her senses, she found herself at home.
4. There is a slightly jarring note to the victim's deposition in the sense that in course of her cross-examination, she revealed that she did not know the appellant by name at the time of the incident. However, it is evident from the FIR and the mother's deposition that the victim had apparently named the appellant as the person who had raped her.
5. However, such minor aberration pales into insignificance in the light of the clear, categorical and unequivocal confession of the appellant before a Judicial Magistrate that was recorded under Section 164 of the Code of Criminal Procedure, 1973. In such statement, the appellant claimed that he "committed a mistake and I confess to the crime that I have committed against a small girl who is about eight years old ..." Though the appellant replied in the negative to most of the questions put to him after the prosecution witnesses were examined, in course of his statement under Section 313 of the Code, the appellant admitted that he had made a confession before the Magistrate and added that such confession was not because of his guilt "but because I fear the police." Though, the relevant Magistrate was examined as PW8 and she identified the appellant in the Court and clearly stated that she remembered having accurately recorded the appellant's statement, there was a clear assertion by the appellant that his confessional statement was made because of his fear of the police. Page 2 of 5
6. To begin with, there is no doubt that the victim was raped. The medical report clearly indicated that the hymen was torn and there were signs of recent sexual intercourse. The medical report was prepared on September 9, 2014, the same day that the complaint was lodged and a day after the incident. There is also no doubt that the victim was a minor as the ossification test and the expert opinion upon dental examination indicated that the victim was seven years old and less than eight. Further, the appellant's confession referred to the victim to be eight years old, even if the confession of the guilt is overlooked for the moment.
7. Thus, the fact that the minor victim had been raped was established beyond doubt. Since there were no eye-witnesses and the appellant purported to retract the confession that he made before a Judicial Magistrate, it is to be ascertained whether there is any other material to link the appellant to the incident.
8. The victim's apparel and some of the material from the place of occurrence were collected in course of the investigation. The report of the Forensic Science Laboratory revealed, inter alia, that a small piece of suspected bamboo leaf collected from the hair of the victim, which was compared microscopically with a similar leaf plucked from the place of occurrence, appeared to be from the same common source. Such report confirmed the incident and place of occurrence and corroborated the version of the victim and the victim's mother.
9. As to the anomaly in the victim's statement that she did not know the appellant by name at the time of the incident, it is clear from the confessional statement of the appellant that the appellant and the victim hailed from the same village and the appellant knew the victim. It is possible Page 3 of 5 that a young girl in a village may not know the name of all the village folk but would be otherwise acquainted with them so as to be able to appropriately identify and indicate a person, even if she did not know the name of such person. What must also be remembered is that the incident took place in an interior village and the victim's family is poor. Though the FIR was lodged by the mother of the victim, she merely appended her thumb impression on the document as it was prepared by a scribe and was appropriately endorsed that it had been read over and explained to the complainant.
10. Since the FIR referred to the appellant by his name and the victim identified the appellant in the Court, it is more likely than not that the victim was able to indicate to her mother as to who had committed the offence, though it is quite possible that the identification was by association and may not have been by name. However, upon the mother understanding who the offender was, in course of her complaint she named the offender. There is no evidence to suggest that the victim was not acquainted with the appellant or had not seen him. On the appellant's statement under Section 164 of the Code, the appellant knew the victim and, it is likely that the victim also knew the appellant, without being aware of the appellant's name at the time of the incident. In any event, the minor girl would have no motive to falsely implicate the appellant; and no case in such regard was made out by the appellant at the trial.
11. In the light of the evidence, the confessional statement of the appellant under Section 164 of the Code that he feebly tried to retract from at the stage of examination under Section 313 of the Code, the clear description of the incident by the victim and the identification of the Page 4 of 5 appellant by the victim in course of the trial, it was beyond reasonable doubt that the offence had been committed and that it had been perpetrated by the appellant herein.
12. The judgment and order under appeal appear to have taken relevant considerations into account, including at the time of passing the sentence. In the light of it being clearly established beyond reasonable doubt that the appellant had committed the offence on a seven-year-old girl, the appropriate punishment was meted out. Neither the judgment of conviction nor the order of punishment calls for any interference.
13. Crl.A.No.14 of 2019 is dismissed.
14. Let a copy of this order be forwarded forthwith to the appellant at no cost.
(W. Diengdoh) (Sanjib Banerjee)
Judge Chief Justice
Meghalaya
16.02.2022
"Lam DR-PS"
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