2024:MLHC:582-DB
Serial No.01
HIGH COURT OF MEGHALAYA
Supplementary List
AT SHILLONG
Crl.A.No.14/2023
Reserved on: 09.05.2024
Pronounced on: 28.06.2024
Shri Lios Swer Vs. State of Meghalaya
Coram:
S. Vaidyanathan, Chief Justice
Hon’ble Mr. Justice
Hon’ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Appellant : Mr. A.S. Siddiqui, Sr.Adv with
Ms. A. Kharmyndai, Adv
For the Respondent : Mr. K. Khan, AAG with
Mr. S. Sengupta, Addl.P.P.
Mr. R. Gurung, GA
i) Whether approved for Yes
reporting in Law journals etc.:
ii) Whether approved for publication Yes
in press:
JUDGMENT
(Made by the
Hon’ble Chief Justice)
This Criminal Appeal is directed against the judgment and order
dated 09.03.2023, passed by the Special Judge (POCSO) / Addl.DC(J),
East Jaintia Hills District, Khilehriat, Meghalaya in Special (POCSO) Case
No.36 of 2020 and the accused / Appellant herein was convicted by the
Trial Court for the offence under Section 5(l)/6 of The Protection of
POCSO Act
Children from Sexual Offences Act, 2012 (in short ‘ , 2012’)
and Section 506 IPC and sentenced to undergo Rigorous Imprisonment for
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a period of 10 years and to pay a fine of Rs.10,000/-, in default to undergo
Simple Imprisonment for five months in respect of Section 5(l)/6 of
POCSO Act, 2012 and to pay a fine of Rs.5,000/- for the offence under
Section 506 IPC in default to undergo Simple Imprisonment for one month.
In addition, compensation of Rs.3,00,000/- was directed to be paid by the
accused to the victim girl.
Brief Prosecution Case:
2. A complaint was given by the mother of the victim girl on
22.06.2013 before Khliehriat Police Station, East Jaintia Hills District,
stating that the accused, namely, Lios Swer, who is a Teacher & the step
father of the victim girl, had committed aggravated penetrative sexual
assault on her daughter aged about 12 years and also raped her on
17.06.2013. Based on the complaint, FIR (Ex.P1) in Khliehriat P.S.Case
No.159 (06) 13 came to be registered on 22.06.2013 against the accused
under Sections 376(2)(f)/506 IPC and thereafter, Section 6 of the POCSO
Act, 2012 was included.
2.1. After investigation, initially, a charge sheet dated 03.12.2013
was laid before the Jowai ADM and after inclusion of Section 6 of the
POCSO Act, 2012, the case was transferred to Special Judge (POCSO),
Jowai and subsequently, after bifurcation of District Judiciary, the case was
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tried by the Special Judge (POCSO) / Addl.DC(J), East Jaintia Hills
District, Khilehriat, Meghalaya in Special (POCSO) Case No.36 of 2020
from 14.09.2020 and the Special Judge (POCSO), East Jaintia Hills District
had taken cognizance of the case. The prosecution, in order to substantiate
the commission of the offence against the accused, had examined as many
as 7 witnesses and marked 8 documents. On the side of the accused, 3
witnesses were examined and one document (Ex.D1) and Paper Marks (D1
to D7) were marked. Both statements under Sections 161 & 164 Cr.P.C.
were 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 offences and convicted him as stated supra.
3. The learned counsel for the appellant submitted that the
appellant has been convicted solely 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. That apart,
there were several contradictions and inconsistencies in the depositions of
P.Ws.1 & 2, namely, mother of the victim girl and the victim girl herself.
Moreover, there was no corroboration of the evidence of P.Ws.1 & 2 with
the medical documents, as the Doctor (P.W.4) in her cross examination had
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clearly opined that there was no external injury in the body of the victim
girl (P.W.2) and there is a possibility of hymen being torn due to sports
activities and other factors. The Doctor further opined that the presence of
mild vaginal discharge at the time of examination might be on account of
menstrual cycle during ovulation period. 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 as per the evidence
tendered by the appellant himself as D.W.1, P.W.1, who is his second wife
was in a compromising state with one Nilu Nath, who is the brother of her
late husband Kamal Nath in the year 2012 and upon enquiry, both had
confessed to have been in illegal relationship with each other for long time.
Thus, it was Nilu Nath, who could have sexually abused the victim girl and
P.W.1, in connivance with Nilu Nath falsely implicated the appellant in
this case. He pointed out that that there was a delay of five days in lodging
the complaint and there was no explanation forthcoming for the delay in
lodging a complaint and therefore, the presence of the victim girl at the
time incident with the appellant is highly doubtful, as she was in her home
town in Assam at that time.
3.1. Learned counsel for the Appellant also pointed out that there
is no concrete evidence as to the age of the victim girl and in the absence of
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relevant documents to prove the age of the victim girl, it should be
vindicated through medical examination / documentary proof, which
admittedly had not been in this case, as the mother of the victim girl was
not sure about the age of the victim girl. Learned counsel for the Appellant
referred to a judgment of the Supreme Court in the case of P.Yuvaprakash
vs. State Rep. by Inspector of Police, reported in AIR 2023 SC 3525,
wherein the Apex Court had elaborately dealt with different aspects with
regard to determination of the age of a juvenile as under:
“12. In view of Section 34(1) of the POCSO Act, Section 94 of the JJ Act, 2015 becomes
relevant, and applicable. That provision is extracted below:
“94. Presumption and determination of age. - (1) Where, it is obvious to the Committee or
the Board, based on the appearance of the person brought before it under any of the
provisions of this Act (other than for the purpose of giving evidence) that the said
person is a child, the Committee or the Board shall record such observation stating the
age of the child as nearly as may be and proceed with the inquiry under section 14 or
section 36, as the case may be, without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding
whether the person brought before it is a child or not, the Committee or the Board, as
the case may be, shall undertake the process of age determination, by seeking evidence
by obtaining -
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate
from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification
test or any other latest medical age determination test conducted on the orders of the
Committee or the Board: Provided such age determination test conducted on the order
of the Committee or the Board shall be completed within fifteen days from the date of
such order.
(3) The age recorded by the Committee or the Board to be the age of person so brought
before it shall, for the purpose of this Act, be deemed to be the true age of that person.”
13. It is evident from conjoint reading of the above provisions that wherever the dispute
with respect to the age of a person arises in the context of her or him being a victim under the
POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act.
The three documents in order of which the Juvenile Justice Act requires consideration is that
the concerned court has to determine the age by considering the following documents:
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“(i) the date of birth certificate from the school, or the matriculation or equivalent
certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification
test or any other latest medical age determination test conducted on the orders of the
Committee or the Board.”
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 counsel appearing for the State contended
that the guilt of the accused had been established beyond reasonable doubt
through the evidence of P.Ws.1 & 2, which is consistent with the medical
evidence. The accused had committed aggravated sexual penetration on the
victim girl not once, but four times, which is evident from the statement
(Ex.P2) made under Section 164 Cr.P.C. by the victim girl. This statement
is fortified by the evidence of Doctor (P.W.4), who had stated in her
examination-chief that the finding is consistent with recent sexual
intercourse / assault. The version of the victim girl (P.W.2) was duly
supported by the evidence of P.W.1 (mother of the victim girl) that while
she was sent out of the house, the victim girl was inside the house with the
accused and she remained outside the house along with her just born baby
for the whole night. He further contended that under Section 29 of the
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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
mens rea,
a presumption of 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 when the victim girl came out of the house
in the morning at about 6.30 am, she was found crying and on enquiry, she
disclosed the fact that the accused had raped her and also threatened her
with dire consequences and she wanted to go back to her home town at
Karimganj, Assam. Thereafter, P.W.1, being helpless took her to Assam
and again came back to Khliehriat for lodging complaint against the
accused with the help of Headman and other Village Defence Party (VDP)
and after medical examination, the complaint was preferred against the
accused and therefore, the case of the prosecution cannot be simply thrown
away on account of the delay of five days in lodging the complaint.
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4.1. Learned Government Advocate appearing for the State also
contended by referring to the judgment of the Apex Court in the case of
Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, reported in (1983)
3 SCC 217, 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
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
f does not render it unworthy of credence,
‘probabilities actor’
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
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there is a likelihood of her having levelled such an
accusation on account of the instinct of self-preservation. Or
is found to be out of tune.
when the ‘probabilities factor’ ”
For all the afore-stated reasons, it was 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 of the victim girl
(P.W.1) had clearly deposed that since her daughter (P.W.2) continuously
crying on the day of occurrence, she had enquired as to what happened on
the last night, when she was with the accused inside the house. Due to her
insistence, the victim girl narrated the entire incident to her, stating that she
was raped by the accused and that she also informed that it was not the first
time he indulged in such activity, on earlier occasion also, he had done the
same act thrice. Based on her statement, a Police complaint was lodged
against the accused and she was subjected for medical examination on
22.06.2013 around 3.45pm, wherein it was determined that she had
experienced a recent sexual assault.
7. Let us analyze the statement made by the victim girl at various
point of time so as to ensure whether the versions of the victim girl instil
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confidence in the minds of this Court. In her 164 statement, she had
deposed as under:
th
“
On Sunday night i.e. 16 June, 2013 my step father
came home drunk and fought with my mother then he went to
to my
sleep. At around 3 O’clock in the morning, he came
room and sleep with me, my mother also came to my room and
chased him out but he started fighting again with her and
chased her out of the house and closed the door. Then he called
me to his room and threatened me not to shout otherwise he
will kill me. I went to his room and he raped me. This is not
the first time that he raped me he has already raped me four
times before this and threatened me not to tell my mother
otherwise he will kill both me and my mother. That’s all.”
In her examination-in-chief, she had elaborated the incident as under:
On the day of the incident I was at home at Khliehriat
“
while my mother and my younger brother are outside as they
had a quarrel with my step father Lios Swer who was
intoxicated. I also came out of the house but my step father
asked me to come back inside the house and enquired the
whereabouts of my mother and I replied that I do not know.
Then he asked me to go and sleep and he came and slept
with me.”
Her Cross Examination goes thus,
It is not a fact that my step-father Lios Swer did not commit
“
penetrative sexual assault on me.
”
8. To corroborate the evidence of P.Ws.1 & 2 medically and
scientifically, it is worthwhile to analyze as to what was the deposition of
P.W.4 (Doctor) and the deposition of Scientific Officer (P.W.5) in-chief
reads as follows:
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4. Upon opening the exhibit box the following
“
items were found which were reportedly collected from
the victim are as follows:-
i) One vulva swab marked as Ex-I
ii) One vaginal swab marked as Ex-II
iii) One anal swab marked as Ex-III
iv) One blood sample marked as Ex-IV
The following Exhibits reportedly collected
from the accused person are:-
I) One blood sample marked as Ex-V.
5. I then examined the Exhibits using standard
Forensic Biology procedure and the following result was
obtained:-
After thorough and careful examination of Ex-I, II,
III, neither blood nor semen was detected. Therefore, the
question of comparison does not arise. Bl
ood group ‘A’
was detected in Ex-
IV while blood group ‘B’ was
detected in Ex-V.
9. The Doctor (P.W.4) also opined that there is a possibility of
recent sexual assault and in the Medical Report marked as Ex.P4, it has
been stated as follows:
11. Examination for injuries
“
(look for bruises, Systematic Physical torture injuries, Nail
abrasions, Teeth bite marks, Cuts, Lacerations, head-injury,
any other injury)
Injury Site Size Colour Swelling Simple/Grievous
1
2 NONE
3
4
12. Local Examination of genital parts:
A. Pubic hair combing
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B. External Genitalia
i) Labia Majora Any swelling, tears, Abrasions present
edematous, bruises or on the inner side of
abrasions Labia majora
ii) Labia Minora Scratch, bruising, fingernail -
marks tear, infection:
iii) Fourchette Bleeding, tear:- Torn
iv) Vulva Any injury, bleeding, -
discharge:-
v) Perineum - -
10. On a close reading of the evidence of P.W.4, it is apparent
that the factum of sexual assault had been duly established and there was a
proper medical corroboration with the evidence of witnesses. Moreover,
the accused, while questioning him under Section 313 had not denied the
accusations levelled against him, as his answers to the questions were
mostly stereotyped, such as “it is not a fact” and “I did not rape her” and
there was no attempt made by the accused to disprove the allegations
leveled against him. Since the victim had washed her genitalia and clothes,
the Scientific Officer (P.W.5) was not in a position to give the exact picture
and therefore, the Medical Report alone could be relied upon to come to a
conclusion.
11. Insofar as the plea raised in respect of delay in lodging
complaint is concerned, it is not 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
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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:
18. The purpose of lodging the FIR in such type of
“ …
cases is primarily to intimate the police to initiate investigation of
criminal offences.
19. 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 a variety of reasons in genuine cases for delayed
lodgement of FIR. Unless kith and kin of the victim are able to
regain a certain level of tranquillity 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.”
12. The argument of illicit relationship of the mother of the
victim girl with one Nilu Nath, brother of her late husband is an
afterthought and concocted story only with an intention to cover up his
guilt, as rightly observed by the Trial Court.
13. When the testimony of the victim child inspires the
confidence of this Court and is found to be reliable, there is no necessity
for this Court to look for other corroborations.
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14. The Court below has properly applied its mind and imposed
Rigorous Imprisonment for a period of 10 years and to pay a fine of
Rs.10,000/-, in default to undergo Simple Imprisonment for five months in
respect of Section 5(l)/6 of POCSO Act, 2012 and to pay a fine of
Rs.5,000/- for the offence under Section 506 IPC in default to undergo
Simple Imprisonment for one month, which, in our considered opinion,
does not warrant any interference by this Court, as the punishment should
act as a deterrent so as to effectively handle offences against a child.
15. Finding that the prosecution has established the charges
against the appellant, we do not find any ground to interfere with the
judgment and order passed by the Court below.
16. It is very unfortunate that the appellant/accused, who is a
Teacher and also the step father of the victim child, in the guise of
providing shelter to her and her widowed mother, indulged in the
commission of the offence of rape / sexual assault, which is unbecoming of
a School Teacher.
17. The Hon’ble Supreme Court in the case of Avinash Nagra
Vs. Navodaya Vidyalaya Samiti and others, reported in (1997) 2 SCC
534 has observed as follows about teacher:
“Before answering the question whether the order
terminating the services of the appellant in terms of his
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appointment letter is in violation of the Rules or the
principles of natural justice, it is necessary to consider the
need for the education and the place of the teacher in that
behalf. Article 45 of the constitution enjoins the State to
endeavour to provide free and compulsory education to all
children, till they complete the age of 14 years. The
Supreme Court has held that right to education is a
fundamental right and the State is required to organise
education through its agencies or private institutions in
accordance with the law and the regulations or the scheme.
The State has taken care of service conditions of the
teacher and he owes dual fundamental duties to himself
and to the society. As a member of the noble teaching
profession and a citizen of India he should always be
willing, self disciplined, dedicated with integrity to remain
ever a learner of knowledge, intelligently to articulate and
communicate the imbibe in his students, as social duty, to
impart education, to bring them up with discipline,
inculcate to abjure violence and to develop scientific
temper with a spirit of enquiry and reform constantly to
rise to higher levels in any walk of life nurturing
constitutional ideals enshrined in Article 51 A so as to
make the students responsible citizens of the country. The
quality, competence and character of the teacher are,
therefore, most significant to mould the institutions and to
sustain them in their later years of life as a responsible
citizen in different responsibilities.”
10. Mahatma Gandhi, the Father of the Nation has
stat
ed that “a teacher cannot be without character. If he
lacks it, he will be like salt without its savour. A teacher
must touch the hearts of his students. Boys imbibe more
from the teacher’s own life than they do from books. If
teachers impart all the knowledge in the world to their
students but do not inculcate truth and purity amongst
them, they will have betrayed them. ...
.....Dr.S.Radhakrishnan has stated that “we in our country
look upon teacher as gurus or, as acharyas. An Acharya is
one whose aachar or conduct is exemplary. He must be an
example of Sadachar or good conduct. He must inspire the
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pupils who are entrusted to his care with love of virtue and
goodness. ....”
11. It is in this backdrop, therefore, that the Indian
society has elevated the teacher as
“Guru Brahma,
. As Brahma,
Gurur Vishnu, Guru Devo Maheswaraha”
the teacher creates knowledge, learning, wisdom and also
creates out of his students, men and women, equipped with
ability and knowledge, discipline and intellectualism to
enable them to face the challenges of their lives. As
Vishnu, the teacher is preserver of learning. As
Maheswara, he destroys ignorance. .....
”
18. In yet another judgment in the case of The Secretary, Sri
Ramakrishna Vidhyalayam High School, Tirupparaithurai,
Tiruchirapalli District Vs. State of Tamil Nadu, Rep.by Special
Commissioner and Secretary to Government and others, reported in
1990 WLR 62, Madras High Court categorically held as follows:
. It is very lamentable state of affairs that in this
“59
country, a teacher who was considered as equal to God,
should fall from the high pedestal to the lowest level. Our
scriptures command the students to consider the teacher as
a God (Acharya in
Devo Bhava). The term ‘Acharya’
Sanskrit means a person who not only teaches lessons to
students, but also ensures good conduct of his pupils. The
more important part of the definition is that he shall
himself practice what he preaches. In Sanskrit language,
the term ‘Guru’ also means teacher. The syllable “Gu”
represents darkness (symbolishing ignorance). The syllable
“Ru” represents the removal thereof. Thus, a Guru is so
called as he removes the darkness and the ignorance from
the minds of the students. In fact, there is a saying that it is
only with the blessings of a teacher that a person blossoms
into a full man.
”
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As father and as teacher, the convict/appellant has accomplished
negative roles and projected himself as a wrong figure to the society.
19. In the result, this Crl.A.No.14 of 2023 stands dismissed. As
ordered by the Trial Court, the compensation of Rs.3,00,000/- shall be paid
by the accused to the victim girl.
(W.Diengdoh) (S.Vaidyanathan)
Judge Chief Justice
Meghalaya
28.06.2024
Lam DR-
“ PS”
PRE-DELIVERY JUDGMENT IN
Crl.A.No.14 of 2023
LAMPHRANG Digitally signed by
LAMPHRANG KHARCHANDY
KHARCHANDY Date: 2024.06.28 11:34:56
+05'30'
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