Judgment & Order

1. This appeal is directed against the impugned Judgment of conviction dated 16.08.2022 and Order of Sentence of even date passed by the learned Sessions Judge, West Jaintia Hills District, Jowai, in Sessions Case No.63 of 2014 convicting the appellant u/s 376/506 (Part II) IPC and sentencing him to undergo 7 years imprisonment with fine of Rs.15,000/- and in default of payment, to undergo further 2 months simple imprisonment.

2. The fact of the case, as can be derived from the record, is that on 12.08.2012, PW-1 lodged a written FIR to the In-Charge, Phramer Traffic Cell to the effect that on 09.07.2012 at about 8:00 PM, the appellant came to her resident at Pasyih Dongmihsngi while she was not at home and raped her daughter, the survivor (17 years of age), while she was asleep. After committing the act, the appellant warned and threatened to kill the survivor if she disclosed the matter to anyone. The said FIR was then forwarded to Jowai Police Station and registered as Jowai P.S. C/No.108 (8) 12 u/s 376 IPC and endorsed to a Women Police Sub-Inspector (WPSI) for investigation. Upon completion of the investigation, a prima facie case was found established against the appellant and accordingly, a charge-sheet was submitted vide C/S No.174/13 dated 20.12.2013 u/s 376/506 IPC. The matter was thereafter taken up as Sessions Case No.63/2014 and the appellant was made to face the trial.

3. On 22.07.2015, the charge was framed by the Trial Court against the appellant u/s 376/506 IPC to which the appellant pleaded not guilty and claimed to be tried. During the course of the trial, the prosecution examined 7(seven) witnesses and exhibited 4(four) documents in support of its case. After the completion of the prosecution evidence, the statement of the appellant was recorded u/s 313 CrPC on 08.02.2022 in Pnar language through an interpreter in presence of the defence counsel. No defence witness was adduced on behalf of the appellant. The learned Trial Court after hearing the parties, convicted the appellant by the impugned Judgment dated 16.08.2022 u/s 376/506 IPC and by the Order of Sentence of even date, sentenced the appellant to undergo imprisonment for 7 years with fine of Rs.15,000/- for offence u/s 376 IPC and in default of payment of fine, the appellant was ordered to undergo further 2 months simple imprisonment. In addition, the appellant was also sentenced to imprisonment for 5 years u/s 506 (Para II) IPC. Both the sentences were to run concurrently.

4. Assailing the conviction and sentence, Mr. M. Sharma, learned LAC appearing for the appellant submits that there was a delay of 33 days in filing the FIR which remained unexplained during the trial making the entire prosecution case doubtful. He submits that the evidence of PW-1(informant) shows that she came to know about the incident after nine days of the occurrence, but does not throw any light as to the entire period of delay in lodging the FIR. He submits that there is also glaring discrepancy and contradiction in the statement of the survivor recorded u/s 164 CrPC and her deposition before the Trial Court. He submits that the survivor’s statement u/s 164 CrPC reveals that her siblings were sleeping in another room and did not hear the appellant’s entry into the house whereas, in her cross examination before the Court, she stated that her brother opened the door to allow the appellant to enter the house. He, therefore, contends that it is clear that there was no forced entry by the appellant in the house of the survivor and the incident took place as the survivor consented to it. He submits that the age of the survivor, which was vital for proving whether she was a minor at the time of the incident, was never established at the trial in order to determine the possibility of presence of consent of the survivor in the matter and hence, the conviction of the appellant cannot be sustained in law. As to the question of determination of age of the survivor, the learned LAC has placed reliance on the decision of this High Court in Amit Kumar Gupta v. State of Meghalaya & ors, 2021 SCC Online Megh 246 (para 50) and Crl.A. No.6 of 2025, Shri. Ronal Murmu v. State of Meghalaya through Public Prosecutor (para 15).

5. The learned LAC further submits that the prosecution case is not supported by any FSL report. He submits that PW-3, the medical expert who conducted medical examination of the survivor on 12.08.2012, in his deposition stated that there was tear of hymen of approximately one month old and the survivor in her deposition before the Court stated that she had a relationship with someone else during the time of the incident and in such a situation, there was a possibility of the survivor having sexual intercourse with her lover. However, the learned Trial Court failed to appreciate this aspect of the matter and came to a wrong conclusion. In addition, the learned LAC submits that the brother of the survivor who had opened the door for the appellant on the alleged day of the incident has not been examined by the prosecution despite the fact that he was a crucial witness in the case. He, therefore, submits that the prosecution has failed to establish its case beyond reasonable doubt and the learned Trial Court erroneously convicted the appellant without there being any sufficient evidence and prays that the conviction and sentence of the appellant be set aside and quashed.

6. Mr. S.A. Sheikh, learned GA appearing for the State-respondent, on the other hand, supports the conviction and sentence of the appellant and submits that although explanation for delay in lodging the FIR is not mandatorily required in a rape case, yet the reason for delay has been clearly stated in the FIR. He submits that the evidence of the survivor is solid and more of a sterling witness and her evidence could not be shaken by the defence. He submits that minor or insignificant discrepancies in the prosecution evidence as to who opened the door for the appellant on the day of the incident cannot be a ground for disbelieving the reliability of the prosecution case as long as the clarity with regard to the evidence of commission of offence by the appellant is not disturbed. He submits that the age of the victim was never a determinative factor as it was not a case of consensual sexual intercourse and the defence also never raised any such plea at the time of cross-examination of the prosecution witnesses. He submits that mere absence of injury mark on the person of the survivor cannot be a ground for drawing inference that the survivor was a consenting party and the evidence of the survivor would prevail over the medical evidence. He submits that the stand taken by the appellant is totally contradictory inasmuch as the appellant pleaded that he was not involved in the commission of the offence and at the same time contended that the act was a consensual act. The learned GA further submits that non-examination of the brother of the survivor who allegedly opened the door for the appellant to enter the house of the survivor cannot lend any discredit to the testimony of the survivor as he was not an eye witness to the commission of offence by the appellant. He submits that the appellant failed to bring any evidence to prove that the survivor was a consenting party and hence, the judgment of the Trial Court cannot be faulted. He, thus, submits that the prosecution was able to prove the case beyond reasonable doubt and the learned Trial Court has rightly convicted the appellant. He submits that there is no error in the Judgment of conviction and Order of Sentence by the Trial Court and the present appeal, being devoid of merit, is liable to be dismissed. In support of his argument, the learned GA places reliance on the decisions of the Apex Court in State of Uttar Pradesh v. Manoj Kumar Pandey (2009) 1 SCC 72, Phool Singh v. State of Madhya Pradesh (2022) 2 SCC 74, State of H.P v. Shree Kant Shekari (2004) 8 SCC 153 and State of Punjab v. Ramdev Singh (2004) 1 SCC 421.

7. Heard and considered the arguments made by the learned counsels appearing for the parties and also perused the materials available on record.

8. PW-1, the mother of the survivor and informant, in her deposition stated that she is a mother of nine children and the survivor is her eldest daughter. On the day of the incident, she was not at home as she was attending the daughter of her sister who was admitted in Ialong Civil Hospital. She did not remember the date, but came to know about the incident after 9 days on her return from hospital when the survivor informed her that the appellant gagged her mouth with a cloth and committed rape on her and also threatened that if she reported the incident to any person, he would kill her. Thereafter, she along with the survivor went to Phramer Traffic Cell and lodged the FIR. She exhibited the FIR as Exhibit-1. After filing the FIR, she along with the survivor was taken to Jowai Civil Hospital for medical examination of the survivor.

In her cross-examination, PW-1 stated that the appellant was her relative belonging to the same clan. She affirmed that she remained in hospital for 9 days attending the daughter of her sister and did not go home. She stated that the day on which she reached home, the survivor informed her about the incident and she remembered that the incident took place on the 7th month of the calendar year. All her children were at home when the incident took place and no elderly person was present in the house.

9. PW-2, the survivor, in her evidence before the Trial Court stated that she knew the appellant who is her maternal cousin brother. She did not remember the exact date of the incident, but it was in the month of July. She stated that on the day of the incident she was fast asleep since it was night time and suddenly the appellant gagged her mouth with a cloth and raped her. After committing the act, he threatened her and told her that he would kill her if she reported the incident to any other person and left thereafter. The survivor further stated that she informed the incident to her mother after her mother came back from the hospital and thereafter, they went together to report the matter to Phramer Traffic Cell. She was then taken to Jowai Civil Hospital for medical examination. The survivor also stated that prior to the incident, she used to live with the family of the appellant as a domestic helper for 2 years and during that period, the appellant used to regularly beat her physically and mercilessly and he also attempted to sexually assault her on several occasion. She stated that she had given her statement before the Magistrate in the case and exhibited the same as Exhibit-2.

In her cross-examination, the survivor denied that she or her family members had any grudge or enmity with the appellant. She stated that on the day of the incident her younger brother opened the door and allowed the appellant to enter inside the house. She also affirmed that during her stay with the family of the appellant, he used to beat her for no reason and the family members of the appellant also knew about the assault on her. She stated that she did not know who wrote the FIR, but knew the content of the FIR and the FIR was lodged 2 weeks after the incident. She stated that she was in a relationship with some other person prior to the incident and her lover abandoned her after learning of the incident.

10. PW-3, the Medical Officer who conducted medical examination of the survivor on 12.08.2012, stated that there was no external injury on the survivor. After taking consent of the survivor and her mother, he conducted examination of the private part of the survivor in presence of one female attendant. As per his finding, there was no sign of recent sexual intercourse, however, there was an old tear of the hymen at 6 (six) o’clock position. There was no sign of forceful intercourse. He exhibited the medical examination report of the survivor as Exhibit-3.

In his cross-examination, he stated that the tear of the hymen of the survivor was approximately one month old. There was no sexual intercourse or forceful intercourse with the survivor within one week or two weeks of the incident.

11. PW-4, who is a Police Officer, in his deposition before the Court stated that in the year 2012, he was posted as the Officer-in-Charge of Jowai P.S. and had received the FIR on 12.08.2012 vide GDE No.278 dated 12.08.2012 on being forwarded by the In-Charge, Phramer Traffic Cell. The FIR was registered vide Jowai P.S. Case No.108 (8) 2012 u/s 376 IPC and the case was entrusted to PW-7 for investigation. He exhibited his signature on the FIR as Exhibit-1(2).

The defence declined to cross-examine the witness.

12. PW-5 is also a Police Officer who was posted as the In-Charge at Phramer Traffic Cell in the year 2012. In his evidence, he stated that on 12.08.2012, PW-1 appeared at the Traffic Cell and lodged the FIR (Exhibit- 1) to the effect that the survivor was raped by the appellant on 09.07.2012. GD entry No.234 of 2012 dated 12.08.2012 was made at the traffic cell and the FIR was forwarded to the Jowai P.S on the same day. After the GD entry, he along with PW-1 and the survivor accompanied by a lady constable went to the Civil Hospital, Jowai for medical examination of the survivor. He seized the blood sample and vaginal swab collected by the doctor and also examined the staff nurse, the doctor, PW-1 and the woman police constable. He also apprehended the appellant on the next date and handed him over to PW-7 on the same date along with all the related documents and the seized articles. He exhibited the seizure list prepared by him as Exhibit- 4.

In his cross-examination, he stated that he did not visit the place of occurrence.

13. PW-6 is the Magistrate who recorded the statement of the survivor as well as the appellant u/s 164 CrPC. In her deposition, the witness stated that she recorded the statement of the survivor on 01.10.2012 in her chamber. She narrated what the survivor stated in her statement recorded u/s 164 CrPC (Exhibit-2). She recorded the statement of the appellant on 26.10.2012 and the appellant stated that he is the cousin of the survivor and in the month of March 2012, he was invited to stay in her house by the mother of the survivor and one night while he was sleeping, the survivor came to him and slept with him with her own consent, he did not rape her and he had been wrongly accused. The witness exhibited the statement of the appellant as Exhibit-4.

In her cross-examination, the witness stated that she cannot recall whether the survivor was alone in her chamber while recording the statement. She also stated that she could not remember who brought the appellant to her chamber for recording his statement. She had given enough reflection time to the appellant before recording his statement.

14. PW-7 in her deposition stated that she was posted at Jowai P.S in the year 2012 and 2013. The case was endorsed to her by the O/C Jowai P.S after the preliminary investigation was done by PW-5. On examination of CD and the documents, she found that all the formalities of investigation were done by PW-5 and after going through the case she found that a prima facie case was well established against the appellant u/s 376 IPC based on the medical report of the survivor and the statement of the survivor before the police and the admission of the appellant during interrogation. She filed the charge-sheet against the appellant vide C/S No.174/13 dated 20.12.2013 u/s 376/506 IPC.

In her re-examination, she stated that according to the statement of the survivor, rape has been committed on her by the appellant. In her cross-examination, she stated that the case was endorsed to her on 12.08.2012 and she recorded the statement of the survivor on 25.09.2012. She stated that she had based the charge-sheet against the appellant as the medical report showed that there was an old tear in the hymen though there was no sign of recent sexual intercourse. She deposed that the survivor had stated that she was a maid in the house of the appellant. She deposed that the survivor also stated that the appellant had committed forceful sexual intercourse on her and that sometimes the medical examination does not reveal if there is a forceful act. She agreed that the statement of the survivor regarding forceful sexual intercourse did not corroborate the medical report. In her re-cross by the defence, she stated that the statement of the survivor that she was raped has been mentioned in the statement recorded u/s 161 and 164 CrPC.

15. Analysis of the prosecution evidence would show that the FIR (Exhibit-1) dated 12.08.2012 was filed by PW-1 making specific allegation of commission of rape on the survivor by the appellant. The evidence of PW-1 before the Trial Court also supported the allegation made in the FIR. The fact that PW-1 was absent for a period of 9 days from her residence and that the appellant had committed the crime during the period of her absence has not been sought to be rebutted by the appellant while cross-examining PW-1. There is nothing on record to show that PW-1 made false accusation against the appellant in order to seek vengeance against the appellant. The appellant did not cross-examine PW-1 to project any case of presence of enmity or grudge against him in making the allegation in the FIR.

16. From the evidence of PW-2, the survivor, it is clear that on the day of occurrence she was present in her house along with her four siblings, who were sleeping in a separate room. The appellant entered her house without the knowledge of the survivor and committed rape on her by gagging cloth inside her mouth so that she was unable to raise any hue and cry. It is also clear that after committing the crime, the appellant had threatened to kill her in the event she made disclosure of the incident to any other person. The fact of presence of the appellant in the residence of the survivor and the commission of crime by him and subsequent issuance of threat to the survivor was not sought to be rebutted by the appellant while crossexamining the survivor. In fact, a bare reading of the cross-examination of the survivor would reveal that no attempt was made at all by the appellant to dislodge the disclosure made by the survivor with regard to the accusation of commission of rape. There is also nothing on record to project that the crossexamination of the survivor by the defence was made with an intention to extract information with regard to presence of consent of the survivor in the incident. Thus, there is no material to presume that the survivor was a consenting party to the incident.

17. A perusal of the statement of the survivor given u/s 164 CrPC exhibited as Exhibit-2 by the prosecution would show that the survivor’s evidence before the Trial Court has remained the same insofar as the core allegation of the prosecution case is concerned. There was no attempt by the defence to contradict the statement of the survivor in her cross-examination before the Trial Court. The evidence of the survivor before the Trial Court, as such, stood corroborated by the Exhibit-2.

18. The medical evidence adduced by PW-3 does not lend much help to the case of the prosecution. However, the evidence of the medical witness does not in any way contradict the evidence of the survivor. There is nothing in the evidence of PW-3 to discredit the testimony of the survivor. The evidence of PW-4 which is not much relevant insofar as the factual aspect of the incident is concerned. The evidence of PW-4 only confirms that the FIR was received by him and was endorsed to PW-7 for investigation of the matter. The evidence of PW-5 confirms that the survivor was sent for medical examination to the Civil Hospital, Jowai, subsequent to the filing of the FIR before the Phramer Traffic Cell and all the related documents along with the seized articles in connection with the investigation of the case was handed over to PW-7.

19. PW-6 proved the Exhibit-2 and affirmed that the survivor had narrated the entire incident in the statement recorded u/s 164 CrPC by her. The witness also exhibited the statement of the appellant recorded by her as Exhibit-4 wherein the appellant had made a statement referring to some other incident, but made no disclosure with regard to the incident alleged in the FIR. However, in his statement the appellant did not deny that he was present in the house of the survivor on the day of the incident.

20. The evidence of PW-7 reveals that she had recorded the statement of the survivor on 25.09.2012 and after going through the case and the related documents, a prima facie case was found well established against the appellant and the charge-sheet was submitted after the supervising officer had directed to do so.

21. The contention of the appellant that the non-examination of the brother of the survivor who allegedly opened the door for the appellant as a prosecution witness casts a serious doubt about the truthfulness of the prosecution case and has no leg to stand inasmuch as there is nothing on record to show that the door was opened on the instruction of the survivor. At no point of time, the appellant denied or tried to rebut the claim of the prosecution that he was present at the spot of occurrence. As the testimony of the survivor with regard to the commission of the crime by the appellant stood unshaken at the trial, the question as to how the appellant entered the place of occurrence becomes insignificant.

22. Insofar as the contention of the appellant with regard to the nondetermination of the age of the survivor is concerned, it is clear that no case of presence of consent of the survivor in the commission of offence by the appellant has been made out. Neither the prosecution based its case by contending that the survivor was a minor nor the Trial Court has convicted the appellant on the ground that the survivor being a minor could not have offered valid consent. The question of age of the survivor, as such, is of no relevance in the facts and circumstances of the present case. The decisions rendered in the cases of Amit Kumar Gupta (supra) and Shri. Ronal Murmu (supra) relied on by the learned counsel for the appellant, therefore, have no applicability in the present case.

23. The Apex Court in the case of Manoj Kumar Pandey (supra) held that merely because the survivor was more than 16 years of age cannot be ground to hold that she was a consenting party when no evidence was led to show such consent. It was further held that normal rule regarding the duty of the prosecution to explain the delay in lodging FIR and the lack of prejudice and/or prejudice caused because of such delayed lodging of FIR does not per se apply to cases of rape.

24. In the present case, the materials on record reveals that the survivor (PW-2) and her mother (PW-1) are both laborers by occupation. The survivor is therefore, not a very intelligent girl. Her mother appears to be practically illiterate as she put her thumb impression on the record of her evidence. Hence, there cannot be a microscopic approach in scrutiny of their evidence by the Court. The Apex Court in Shree Kant Shekari (supra) held that when the victim of offence is not an intelligent girl and her mother, a rustic woman, was practically illiterate, examining evidence of such witnesses with microscopic approach would be an insult to justice-oriented judicial system. Therefore, the plea raised on behalf of the appellant that there is a confusion with regard to the date of knowledge of the incident of PW-1 and that there was a delay in lodging the FIR is of no help to the defence of the appellant.

25. With regard to the contention of the appellant that no visible injury was found when the survivor was medically examined by PW-3 and as such, the allegation of rape stands unsubstantiated, it appears that the survivor was medically examined on 12.08.2012 i.e. after more than a month of the incident. The Apex Court in Ramdev Singh (supra) held that when the doctor examined the victim after about three weeks, absence of visible injury at the time of medical examination was of no consequence as the effect of the act on the physical form practically gets obliterated. Thus, the stand taken by the appellant is not supported by law and cannot be a ground for disbelieving the version of the survivor.

26. In the instant case, it appears that the survivor has fully supported the prosecution case and was consistent right from the very beginning of the case. Nothing has been pointed out by the defence as to why the testimony of the survivor should not be believed. The substance of accusation rape and intimidation of the survivor by the appellant could not be shaken by the defence during the examination of the survivor. In cases like rape and sexual assault of woman and children, minor contradiction or insignificant discrepancies in the statement of the survivor cannot be a ground for disbelieving the otherwise reliable prosecution case. Conviction of the appellant can be upheld even on the sole testimony of the survivor without looking for any further corroboration if the testimony is found to be trustworthy and unblemished. The Apex Court in Ganeshan Vs. State represented by its Inspector of Police, (2020) 10 SCC 573 held: -

                   “10.1. Whether, in the case involving sexual harassment, molestation, etc., can there be conviction on the sole evidence of the prosecutrix, in Vijay v. State of M.P., it is observed in paras 9 to 14 as under :(SCC pp.195-98)

                   “9……………

                   10………….

                   11. In State of Punjab v. Gurmit Singh, this Court held that in cases involving sexual harassment, molestation, etc. the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under…….

                   8……….

                   21…. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestation.’

                   12…….

                   13. In State of H.P v. Raghubir Singh this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan.

                   14.….”

27. The position which emerges from above is that in cases involving sexual offence, minor contradictions or insignificant discrepancies in the statement of a victim should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual offence is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The Court should examine the broader probability of a case and not get swayed away by minor contradiction or insignificant discrepancies to throw out and otherwise reliable prosecution case. Thus, the contention of the appellant that the brother of the survivor was not examined by the prosecution as a witness, is also of no help to the appellant. The totality of the circumstances appearing in the case does not disclose that the survivor had a strong motive to falsely involve the appellant and, therefore, there should not be any hesitation on the part of the Court in accepting her evidence adduced during the course of trial.

28. It is also clear from the case of Ganeshan (supra) that the delay in filing FIR for sexual offence cannot be equated with the case involving other offences. The delay in case of sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. Furthermore, in the case of Shri. Mihkahtngen Sarubai Vs. State of Meghalaya & Anr, Crl.A.No.31 of 2023, a Division Bench of this court while deliberating on the issue of delay in lodging FIR in respect of sexual offence held that: -

                   “13. The Hon’ble Supreme Court, in the case of State of Himachal Pradesh Vs. Prem Sing, 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 in question 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, 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…”.

29. In view of the discussions made above, the appellant has failed to make out a case for interference with the Judgment of conviction dated 16.08.2022 and Order of Sentence of even date passed by the learned Sessions Judge, West Jaintia Hills District, Jowai, in Sessions Case No.63 of 2014. There is no merit in this appeal and the same stands dismissed.

30. Let an authenticated copy of this Judgment be furnished to the appellant, free of cost.

31. The Trial Court Record be returned forthwith.