2024:MLHC:890-DB
Serial No. 01
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
Crl.A. No. 21 of 2024
Date of Decision: 30.09.2024
Shri. Elbert Marak
S/o Shri. Nikin Sangma
R/o Village, Sarjoan Balapara
P.S: Boithalangso,
District: Karbi- Anlong, Assam
………Petitioner
-VERSUS-
1. State of Meghalaya
Through Public Prosecutor
..….Respondent
Coram:
Hon’ble Mr. Justice W. Diengdoh, Judge
Hon’ble Mr. Justice B. Bhattacharjee, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. S.D. Upadhaya, Legal Aid Counsel
For the Respondent(s) : Mr. N.D. Chullai, AAG with
Mr. E.R. Chyne, GA
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
J U D G M E N T
Per W. Diengdoh, (J):
1. The judgment and order dated 01.04.2021 passed by the learned
Special Judge (POCSO), East Jaintia Hills District whereby the
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appellant herein was sentenced to undergo 7 years of rigorous
imprisonment with fine of ₹ 5000/- (rupees five thousand) only, in
default of payment of fine, to further undergo 1(one) month simple
imprisonment for an offence committed under Section 361 IPC and
further 10 years rigorous imprisonment with fine of ₹ 10,000/- (rupees
ten thousand) only and also in default of payment of such fine, to
further undergo another 3(three) months simple imprisonment for an
offence punishable under Section 6 POCSO Act is assailed herewith in
this instant appeal.
2. Briefly, the facts of the case is that on an FIR lodged by one
Smti. Durga Kanai before the Officer In-Charge, Khliehriat Police
Station, East Jaintia Hills District, on 17.11.2016 with the information
that her daughter who was staying at a place called Kseh, on
16.11.2016 while on her way home, was accompanied by three boys,
two of whom had since went on to their respective homes, one of them,
Shri. Elbert Marak along with her daughter did not return home that
night and is found missing. Hence the complaint.
3. On the basis of such information, the police accordingly
registered the FIR as Khliehriat P.S. Case No. 298(11) 16 under Section
361 IPC and an investigator was assigned to conduct the investigation.
The Investigating Officer (IO), in course of investigation had recovered
the said daughter, who was a minor at the relevant time along with
Shri. Elbert Marak from a place called Wahsarang. Thereafter, on
completion of the investigation, the IO found that a well-established
case under Section 361 IPC read with Section 6 of the POCSO Act is
made out against the accused Elbert Marak and he is sent up to face
trial before the Special Court (POCSO).
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4. In course of trial, the case being re-registered as Special Case
No. 14 of 2020, the learned Special Judge has examined five witnesses
and has also exhibited certain material evidence including documents
produced by the Prosecution. After due procedure is complied with, on
the basis of the findings thereon, the Court has found it fit to find the
accused person guilty on the said two charges, that is, under Section
361 IPC and Section 6 of the POCSO Act and he was accordingly
sentenced to face imprisonment as aforementioned.
5. Mr. S.D. Upadhaya, learned Legal Aid Counsel (LAC),
appearing for the appellant has submitted that though the factual aspect
of the matter as regard the relationship of the survivor and the appellant
is not disputed, however the circumstances surrounding the whole
episode has to be looked into to come to any conclusion as to the guilt
or innocence of the appellant herein.
6. The learned LAC has submitted that the complainant/mother of
the survivor in her deposition as PW1 has stated that “…One Saturday
my daughter went to stay with her father at Lum Mynkseh and on
Sunday she left Lum Mynkseh at around 4:30 PM along with Elbert
Marak, Ajay Langstang and another boy whom I know as Hunde
brother of Elbert Marak….” In her cross examination this witness has
admitted that the accused person/appellant is her neighbour and he
used to visit their house frequently as he is a close friend of her
children.
7. The survivor who has deposed before the trial court as PW2 has
also stated that “…On the day of the incident my elder sister Anika
Kanai requested Ajay Langstang, Admission Marak and Elbert Marak
to drop me home…” “…The accused person Elbert Marak asked me to
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go alongwith him and promise to give me some eatable so I went along
with him to his friend place but I do not know the place…” In her cross
examination the survivor has admitted to her relationship with the
appellant when she stated that “…We consider Elbert as a family
member. My parent respect and trust the accused person. It is a fact
that I am not scared of the accused person and I trust him…” She has
further stated that “…It is a fact that I have stated before the doctor
who medically examined me that I am in a relationship with the
accused person Elbert…” To interpret the above statements is but to
come to only one conclusion that is, that it is not a fact that the
appellant had enticed or kidnapped the survivor. Therefore, there is no
reason as to why the appellant should be convicted and sentenced as
was done so under Section 361 IPC, submits the learned LAC.
8. The learned LAC has further submitted that the main thrust of
the argument on behalf of the appellant is to question the age of the
survivor since there is nothing on record nor has it been proven in
course of evidence that the survivor is actually 12 years of age and that
she was a minor at the time when the incident took place. Even if one
takes the statement of PW1 who has stated that “…The victim girl was
12 years old at the time of the incident and studying in Class III
(Three)...”, such statement has been made without any documentary
proof of age. This fact was also reiterated by the IO who has deposed
as PW5, when in his deposition he has stated that “…The age of the
victim was given by her mother. It is a fact that no documents are there
to substantiate the age of the victim…” Under such circumstances, the
determination of the age of the survivor has to be carried out according
to the procedure laid down under Section 9 and 94 of the Juvenile
Justice (Care and Protection of Children) Act, 2015. The case of Jarnail
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Singh v. State of Haryana, (2013) 7 SCC 263 has been cited by the
learned LAC in support of this contention.
9. On the findings of the trial court that the appellant had
committed sexual assault on the person of the survivor, the learned
LAC has submitted that on careful scrutiny of the evidence rendered by
PW4 who is the Doctor who has medically examined the survivor at
the relevant point of time, what is apparent is that though this witness
has given her opinion that upon examination of the survivor a case of
recent sexual intercourse can be made out, however in the cross-
examination, this witness has admitted that “…It is a fact I mentioned
in my report that the hymen is torn with old tear and I want to state
that the old tear is more than a week…”. Since the appellant and the
survivor were together from 16.11.2016 to 18.11.2016 therefore, there
could not have been any sexual intercourse or sexual assault as alleged
taking into account the statement of PW4.
10. In view of the above, the learned LAC has submitted that the
learned trial court has come to a wrong finding without careful
appreciation of the evidence on record and also without due application
of mind and as such, the impugned judgment and conviction is liable to
be set aside and quashed by this Appellate Court.
11. However, the learned LAC has further submitted that in view of
the fact that the appellant has already undergone imprisonment of
about 8 years or so, no fruitful purpose would be served if this Court
remits the matter to the trial court for de novo trial to determine the age
of the survivor.
12. In support of his argument, the learned LAC has cited the
following authorities.
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i. Sunil v. State of Haryana, (2010) 1 SCC 742, para 23, 24
and 27;
ii. Massauddin Ahmed v. State of Assam, (2009) 14 SCC
541, para 10, 11, 14, 17 and 18; and
iii. Shri. Amit Kumar Gupta v. State of Meghalaya & Ors.,
High Court of Meghalaya order dated 08.12.2021 in Crl.
A. No. 1 of 2021, para 49, 50, 51, 52, 55, 58 and 69.
13. Per contra, Mr. N.D. Chullai, learned AAG while defending the
impugned judgment and order on behalf of the State respondent has
submitted that the argument and contention of the appellant through the
learned LAC is without basis and cannot be accepted by this Court.
14. On the contention that no case has been made out to convict the
appellant under Section 361 IPC the learned AAG has submitted that
the survivor in her deposition before the Court has clearly stated that
“…The accused person Elbert Marak asked me to go alongwith him
and promise to give me some eatable so I went along with him to his
friend place…”. This act of the appellant in offering eatables to the
survivor can only mean one thing that is, enticement. The word
“entice” involves an idea of inducement or allurement in another
through exciting hopes or desire in order to attract the child to go with
the offender. To elaborate on this contention, the learned AAG has
placed reliance on the case of State of Kerela v. Arumugham & Anr.
2023 SCC Online Ker 4983, para 14, 15 and 17.
15. As to the challenge that the age of the survivor has not been
determined, the learned AAG has submitted that the mother of the
survivor in her deposition as PW1 has clearly stated in her
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examination-in-chief that the age of the survivor was 12 years at the
time of the incident. This statement has not been contradicted in cross-
examination by the defence/appellant and no suggestion was ever put
to the witness that the survivor was not a minor at the time of the
incident. Even when the doctor who had medically examined the
survivor had recorded her age as 12 years, this statement in evidence
has also not been challenged by the defence counsel and as such, the
appellant cannot come at this stage to raise the issue of confirmation of
age of the survivor.
16. On the contention of the appellant that the learned trial court has
come to the conclusion that the appellant had committed sexual assault
on the survivor on the relevant date, which fact was also corroborated
by none other than the accused/appellant himself in his examination
under Section 313 Cr.P.C, the learned AAG has submitted that though
the appellant has stated that the act of sexual intercourse was with the
consent of the survivor, however the survivor being a minor at the
relevant point of time, such consent even if proven to be true, will not
hold good in law as it is well settled that consent by a minor is
immaterial in sexual relationship.
17. This Court has duly considered the argument of the respective
parties, the facts of the case have been enumerated hereinabove and
reference to the same would be to the contextual aspect only.
18. The appellant it appears, has only stressed on the issue of age
determination of the survivor to content that since the age of the
survivor has not been established through evidence, it is the prerogative
of the appellant to seek determination of the same even at this stage of
the proceedings.
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19. The appellant has however failed to put forward any argument as
far as the determination of age of the survivor is concerned to say that
according to him she was of majority age at the relevant period, no
definite or even estimated age of the survivor has been proffered. Be
that as it may, this Court will look into this aspect of the matter before
proceeding further.
20. Whenever there is a challenge to the age of a survivor in cases of
this kind, as has been laid down under the relevant statutes and rules in
a number of judicial pronouncements by the Apex Court and various
High Courts, the accepted procedure for determination of age is found
under Rule 12 of the Juvenile Justice (Care and Protection of Children)
Rules, 2007 which in turn derives its authority from Section 94 of the
Juvenile Justice (Care and Protection of Children) Act, 2000. In fact, it
is pertinent to mention here that when it comes to the issue of
determination of age of a victim of crime, the authority set out in the
case of Jarnail Singh (supra) also cited by the learned LAC would
elucidate this aspect prominently, reference being made to para 22 and
23 of the same which are reproduced herein below as:
“22. On the issue of determination of age of a minor, one only
needs to make a reference to Rule 12 of the Juvenile Justice
(Care and Protection of Children) Rules, 2007 (hereinafter
referred to as “the 2007 Rules”). The aforestated 2007 Rules
have been framed under Section 68(1) of the Juvenile Justice
(Care and Protection of Children) Act, 2000. Rule 12 referred to
hereinabove reads as under:
“12. Procedure to be followed in determination of age.–(1)
In every case concerning a child or a juvenile in conflict
with law, the court or the Board or as the case may be, the
Committee referred to in Rule 19 of these Rules shall
determine the age of such juvenile or child or a juvenile in
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conflict with law within a period of thirty days from the
date of making of the application for that purpose.
(2) The court or the Board or as the case may be the
Committee shall decide the juvenility or otherwise of the
juvenile or the child or as the case may be the juvenile in
conflict with law, prima facie on the basis of physical
appearance or documents, if available, and send him to the
observation home or in jail.
(3) In every case concerning a child or juvenile in conflict
with law, the age determination inquiry shall be conducted
by the court or the Board or, as the case may be, the
Committee by seeking evidence by obtaining–
(a)(i) the matriculation or equivalent certificates, if
available; and in the absence whereof;
(ii) the date of birth certificate from the school (other
than a play school) first attended; and in the absence
whereof;
(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of
clause (a) above, the medical opinion will be sought
from a duly constituted Medical Board, which will
declare the age of the juvenile or child. In case exact
assessment of the age cannot be done, the court or the
Board or, as the case may be, the Committee, for the
reasons to be recorded by them, may, if considered
necessary, give benefit to the child or juvenile by
considering his/her age on lower side within the
margin of one year,
and, while passing orders in such case shall, after taking into
consideration such evidence as may be available, or the medical
opinion, as the case may be, record a finding in respect of his age
and either of the evidence specified in any of the clauses (a)(i),
(ii), (iii) or in the absence whereof, clause (b) shall be the
conclusive proof of the age as regards such child or the juvenile
in conflict with law.
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(4) If the age of a juvenile or child or the juvenile in conflict
with law is found to be below 18 years on the date of
offence, on the basis of any of the conclusive proof
specified in sub-rule (3), the court or the Board or as the
case may be the Committee shall in writing pass an order
stating the age and declaring the status of juvenility or
otherwise, for the purpose of the Act and these rules and a
copy of the order shall be given to such juvenile or the
person concerned.
(5) Save and except where, further inquiry or otherwise is
required, inter alia, in terms of Section 7A, Section 64 of
the Act and these Rules, no further inquiry shall be
conducted by the court or the Board after examining and
obtaining the certificate or any other documentary proof
referred to in sub-rule (3) of this Rule.
(6) The provisions contained in this Rule shall also apply to
those disposed of cases, where the status of juvenility has
not been determined in accordance with the provisions
contained in sub-rule(3) and the Act, requiring dispensation
of the sentence under the Act for passing appropriate order
in the interest of the juvenile in conflict with law.”
23. Even though Rule 12 is strictly applicable only to determine
the age of a child in conflict with law, we are of the view that the
aforesaid statutory provision should be the basis for determining
age, even of a child who is a victim of crime. For, in our view,
there is hardly any difference insofar as the issue of minority is
concerned, between a child in conflict with law, and a child who
is a victim of crime. Therefore, in our considered opinion, it
would be just and appropriate to apply Rule 12 of the 2007
Rules, to determine the age of the prosecutrix VW, PW 6. The
manner of determining age conclusively, has been expressed in
sub-rule (3) of Rule 12 extracted above. Under the aforesaid
provision, the age of a child is ascertained, by adopting the first
available basis, out of a number of options postulated in Rule
12(3). If, in the scheme of options under Rule 12(3), an option is
expressed in a preceding clause, it has overriding effect over an
option expressed in a subsequent clause. The highest rated option
available, would conclusively determine the age of a minor. In
the scheme of Rule 12(3), matriculation (or equivalent)
certificate of the concerned child, is the highest rated option. In
case, the said certificate is available, no other evidence can be
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relied upon. Only in the absence of the said certificate, Rule
12(3), envisages consideration of the date of birth entered in the
school first attended by the child. In case such an entry of date of
birth is available, the date of birth depicted therein is liable to be
treated as final and conclusive, and no other material is to be
relied upon. Only in the absence of such entry, Rule 12(3)
postulates reliance on a birth certificate issued by a corporation
or a municipal authority or a panchayat. Yet again, if such a
certificate is available, then no other material whatsoever is to be
taken into consideration, for determining the age of the child
concerned, as the said certificate would conclusively determine
the age of the child. It is only in the absence of any of the
aforesaid, that Rule 12(3) postulates the determination of age of
the child concerned, on the basis of medical opinion.”
21. This Court would agree with the learned LAC that none of the
above steps were taken to determine the age of the survivor herein,
however, since no challenge was made to the assertion of the PW1,
who is the mother of the survivor when she has stated that the age of
the survivor at the relevant period of time was 12 years of age, the
same being also referred to by PW4, the Doctor who has reiterated that
the age of the survivor was 12 years according to what the mother has
stated to her, in the absence of any confrontation by the
accused/appellant in the cross-examination of such witnesses, this
Court has to accept the fact that the age of the survivor at the relevant
point of time was 12 years of age. Another factor which may have been
missed out in observation is the further assertion of the PW1 that at that
point of time, her daughter was studying in class III (Three), which
could not be expected of a girl of 18 years or so to be studying is such
class under normal circumstances.
22. Having held that the survivor was a minor at the time when the
incident took place, also taking note of the fact that she has clearly
stated in her deposition as PW2 that the appellant had promised to give
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her some eatables if she go along with him, which she eventually did
and did not return home until after two days or so, this piece of
evidence would only prove that the minor child was enticed by the
appellant to accompany him without the consent of the parent who are
her lawful custodians.
23. The case of Arumugham (supra) relied upon by the learned AAG
to canvass the issue of enticement is found relevant by this Court, when
a perusal of para 14, 15 and 17 of the same, duly reproduced herein, set
in juxtaposition with the facts of the case of the appellant, only one
conclusion can be drawn, that is, that the survivor in this case has
indeed been enticed by the appellant to accompany him, thus attracting
the provision of section 361 IPC. The findings of the learned Trial
Court in this respect cannot be faulted.
“14. The Supreme Court later considered the scope of
expressions ‘takes’ and ‘entice’ in State of Haryana v. Raja Ram
(1973) 1 SCC 544: AIR 1973 SC 819 = 1973 KHC 478. In that
case, the Apex Court held thus:-
“The object of this section seems as much to protect the
minor children from being seduced for improper purposes
as to protect the rights and privileges of guardians having
the lawful charge or custody of the minor wards. The
gravamen of this offence lies in the taking or enticing of a
minor under ages specified in this section, out of the
keeping of the lawful guardian without the consent of the
guardian. The words “takes or entices any minor…out of
the keeping of the lawful guardian of such minor” in
Section 361, are significant. The use of the word
“Keeping” in the context connotes the idea of charge,
protection, maintenance and control: further the guardian’s
charge and control appears to be compatible with the
independence of action and movement in the minor, the
guardian’s protection and control of the minor being
available, whenever necessity arises. On plaint reading of
this section the consent of the minor who is taken or
enticed is wholly immaterial: it is only the guardian’s
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consent which takes the case out of its purview. Nor is it
necessary that taking or enticing must be shown to have
been by means of force or fraud. Persuasion by the
accused person which creates willingness on the part of
the minor to be taken out of the keeping of the lawful
guardian would be sufficient to attract the section.”
15. In Shahjahan v. State of Kerela (2010 (4) KHC 294) this
Court considered expressions ‘takes’ and ‘entices’, contained in
Section 361 of IPC, in paragraph 20 of the judgment, which
reads thus:-
“20. There is and can be difference between the
expressions “takes” and “entices” in S. 361 I.P.C. in
certain cases, the meaning may overlap also. The
expression “takes” may ordinarily refer to the gross
physical act of taking away manually. But the expression
must cover not merely the gross overt act of physically
carrying away a minor. Subtle variants of the act of taking
must also fall within the sweep of the expression ‘takes’ in
S. 361 I.P.C. it would be incorrect to assume that ‘taking’
is a culpable act which can take place only without
consent of the minor. A rule of the thumb that if the
consent of the minor is there, the contumacious act of
“taking” can never take place would be too unrealistic and
impermissible. This distinction between “take” and
“entice” cannot certainly be consent and absence of
consent of the minor. Several subtle varieties of taking
may take place with the consent of the minor and without
the actual physical act of moving the minor. ‘Enticing’ a
minor in language simply means luring or tempting or
prompting a minor to move out of the custody of the
guardian. Here also no gross physical act is necessary.
Assurance given to a minor that if she comes out of the
keeping of the guardian, the minor shall be protected and
patronised must also necessarily fall within the range of
contumacious conduct under S. 361. In short to me it
appears that the expression “takes” and “entices” must
together cover all acts by which it is ensured by the
offender that the minor moves out of the keeping of the
lawful guardian. To give true effect to the purpose of
rational of the penal provision in S. 361 I.P.C., those
expressions must be given such a comprehensive and
exhaustive sweep.”
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17. That statutory provision and the precedence referred to above
lead us to conclude thus:-
(1) The consent of the minor who is taken or enticed is
wholly immaterial.
(2) It is only the guardian’s consent which takes the case out
of the purview of the penal provision.
(3) It is not necessary that the taking or enticing must be
shown to have been by means of force or fraud. Persuasion
by the accused person, which creates willingness on the part
of the minor to be taken out of the keeping of the lawful
guardian, will be sufficient to attract the section.
(4) With the consent of the minor, without any element of
fraud, force or deceit, the minor can be moved out of the
custody of the guardian, and that would attract the expression
‘takes’ or ‘entice’ under Section 361 of IPC.”
24. Coming to the culmination of the charge against the appellant,
that is, the allegation of sexual assault, the law under the POCSO Act,
is very clear, any form of sexual exploitation against the person of a
minor will attract the rigors of the relevant provisions of the POCSO
Act, depending on the gravity of such act, it may entail punishment
either under Section 4 or 6 of the said Act.
25. A reading of the whole body of evidence would give a picture of
the relationship between the appellant and the survivor, inasmuch as
what is evident is that they are known to each other, the survivor is also
comfortable in the company of the appellant and according to her she
was in a relationship with him. The survivor has however also related
the sequence of events right from the time the appellant enticed her to
follow him to an unknown place, later on she said that the place was a
labour camp about three hours journey from her home. As she relates
the fact that the appellant has committed penetrative sexual assault on
her, the appellant has failed to refute such assertion when she was
cross-examined by him, or rather his defence counsel. As has been
indicated hereinabove, the fact that there has been sexual intercourse
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between the two of them was fortified by the evidence of the Doctor as
PW4.
26. In the light of such evidence, the statement of the survivor who
is the victim of the crime, more particularly in cases of sexual assault
where more often than not, no eye-witnesses could be found, in the
facts and circumstances of this case, we find that the statement of the
survivor has to be believed.
27. Consequently, on a final analysis of the evidence on record and
on appreciation of the impugned judgment and order, we find that the
same has been rendered taking everything into consideration. Thus, no
infirmity can be found in such order, the same is hereby upheld.
28. This appeal is therefore found to be devoid of merits and is
accordingly dismissed.
29. Appeal disposed of. No costs.
30. The lower court records to be sent back.
(B. Bhattacharjee) (W. Diengdoh)
Judge Judge
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