Serial No.

OS
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG

Crl.A.N o.40/2023
Reserved on : 14.05.2024
Pronounced on: 08.07.2024
Shri Treda Sungoh ..... Appellant

Vs.
State of Meghalaya through the Commissioner and Secretary to the
Government of Meghalaya, Department of Home (Police), Civil
Secretariat, Meghalaya. . .... Respondent
Coram:
Hon'ble Mr. Justice S. Vaidyanathan, Chief Justice
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Appellant Mr. K.S. Kynjing, [Link] with
Mr. G. Syngkrem, Adv
For the Respondent Mr. K. Khan, AAG with
Mr. S. Sengupta, [Link]
Mr. K.P. Bhattacharjee, GA
i) Whether approved for Yes
reporting in Law journals etc.:
ii) Whether approved for publication Yes
m press:

JUDGMENT
(Made by the Hon 'hie Chief Justice)
This Criminal Appeal is directed against the judgment and order

dated 13.02.2023, passed by the Special Judge (POCSO), West Jaintia

Hills District, J owai in Special Sessions Case No.23 of 2021, by which

the accused / Appellant herein was convicted by the Trial Court for the

offence under Section 5(1)/6 of The Protection of Children from Sexual

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Offences Act, 2012 (in short 'POCSO Act, 2012') and Section 506 IPC

as follows:

[Link]. Offence Conviction and Sentence

I. Section 5(1) / 6 of the POCSO Act, To undergo Twenty Years Rigorous
Imprisonment with a fine of Rs. I 0,000/-in
2012 default to undergo Simple Imprisonment for 3
months and to pay a compensation of
Rs.1,50,000/- payable by the District Legal
Services Authority and recoverable from the
accused .

2. Section 506 IPC To undergo One Year Simple Imprisonment

The Trial Court held that the convict is entitled to the benefit of Section

428 Cr.P .C. and the period already undergone in prison was ordered to

be set off. Aggrieved by the judgment and order of the Special Judge

(POCSO), West Jaintia Hills District, Jowai, dated 13.02.2023, the

Appellant has preferred this Criminal Appeal before this Court.

Brief Prosecution Case:

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

23.08.2021 before the officer-in-charge, Women Police Station, Jowai,

West Jaintia Hills, stating that her daughter was raped by the accused

on 22.08.2021. On receipt of the complaint, the officer-in-charge,

Woman Police Station, Jowai registered a case vide Jowai PS Case

No.91 (8) 2021 under Sections 3(a)/4 of the POCSO Act, 2012 read

with Section 506 IPC and endorsed to one WPSI I. Kharpran for the

conduct of further investigation.

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 3. After a thorough investigation, a Charge Sheet No.67 of 2021

dated 09.09.2021 under Section 5(1)/6 of the POCSO Act of 2012 r/w

Section 506 IPC was laid and the Special Judge (POCSO) thereafter

proceeded for trial and arguments after receipt of written arguments

from the parties. The prosecution, in order to substantiate the

commission of the offence against the accused, examined as many as 4

witnesses and marked 6 exhibits and Paper Mark-I (Birth Certificate).

The accused neither produced witnesses nor marked any document in

support of his defence. Statement under Section 164 Cr.P.C. was

obtained from the victim girl (P. W.2). The accused was questioned

under Section 313 Cr.P.C. and he denied the charges levelled against

him. The Trial Court, after analyzing the evidence let in by the

prosecution, found the accused guilty of the offence under Section

5(1)/6 of the POCSO Act, 2012 and under Section 506 IPC and

convicted him as stated supra.

4. Learned Senior Counsel for the appellant submitted that

though the complaint was lodged in the name of the mother (P. W.1) of

the victim girl (P. W.2), pursuant to her illiteracy, the Headman had

written the complaint on her behalf without even explaining about the

contents thereof. P. W. l (Mother) deposed that the victim girl was

working in a tea stall and as such, the age of the girl is highly doubtful,

despite production of birth certificate to prove her date of birth as

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26.02.2006. Learned Senior Counsel for the appellant further submitted

that there were inconsistencies, contradictions and improvements in the

evidences of [Link].1 & 2 and especially, the evidence of the victim girl

does not inspire confidence in convicting the appellant. Even as per the

evidence of the Doctor (P.W.3), there was no bleeding from the hymen

during medical examination and was also not sure whether tear in the

hymen was the recent one or the old. Thus, it can be inferred that the

entire prosecution case was a cock and bull story with an intention to

book the appellant under the POCSO Act, 2012. Learned Senior

Counsel for the appellant also submitted that the chain of event had not

been established by the prosecution beyond reasonable doubt, as the

samples were not sent for DNA analysis for the reason that it had

already expired and there was a violation of procedural law and the

appellant has been made as a scapegoat and convicted by the Trial

Court by surmises. Hence, learned Senior Counsel for the appellant

sought interference by this Court in the conviction and sentence

awarded by the Trial Court.

5. Per contra, learned Additional Advocate General appearing for

the State contended that as per the statement of the victim girl (Ex.P3 ),

under Section 164 Cr.P.C., the accused, in the guise of dropping the

victim girl (P. W.2) in a shop, forcibly took her to a jungle, where the

accused, aged about 3 5 years, had undressed her and raped her twice
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 brutally throughout the night. He further contended that the evidence of

P.W.2 was duly corroborated by the Medical Report (Ex.P2), which

states that the recent sexual assault cannot be ruled out. He also

contended that the age of the victim girl was clearly proved by

production of her birth certificate duly issued by the Department of

Health & Family Welfare, Government of Meghalaya. Thus, in all

probabilities, the prosecution has proved the guilt of the accused

without any room , for suspicion through oral and documentary

evidences. Hence, it was prayed that the present Criminal Appeal is

liable to be dismissed.

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6. We have carefully considered the submissions made on either
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, 'I'-'* W<l",;'~ ~'>;,' side and perused the material documents available on record.
~ / 7
7. It was alleged by the prosecution that the accused, in order to

satiate his sexual appetite, had spoiled the life of the victim girl (P. W.2)

to the hilt and he had taken her to a secluded place / jungle and

committed the offence of aggravated sexual intercourse with the victim

girl, who was a minor at the time' of incident, attracting the provisions

of the POCSO Act, 2012. Learned Senior Counsel for the appellant

vehemently argued that the mother (P. W.1) of the v~ctim girl, without

even knowing the contents in the FIR, had simply signed thereon and

thereafter, the case had been developed by the Police. However, on a

perusal of the statement of the victim girl (Ex.P3) under Section 164
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Cr.P.C., the factum of sexual intercourse had been duly established by

the prosecution. In the statement, the victim girl had stated as follows:

"The incident took place on 22 nd August 2021. I left

home to buy something from Madan. I met Tre Sungoh and he
asked me where was I going. I told him I was going to buy
something. He asked me if I know a shop nearby to which I
replied that you go ahead and ask around. He requested me to
accompany him as I scared of my parents. He insisted and as
such I gave in and went along with him in his car. He kept on
driving and I do not know the destination. He stopped the car
in the roadside. I did not want to get down from the car. Tre
pulled me out forcefully from the car to the forest. He held my
hand and pushed me to the ground. He laid on top of me. He
took off my pants and my underwear. He took off his pants and
inserted his penis inside my vagina. Once he's done, I beg
begged him to drop me home. He refused and we stayed the ....
night in the forest. That night, he raped me again. The next
morning-early morning, he dropped me at Lumpyrtuh
Community Hall. I ran home and infonned my parents about
what happened. My parents called Tre and we all went to the
Police Station and filed an FIR.
That is all I have to say."

8. The version of the victim girl appears to be real and natural

and there is no cloud of suspicion over her evidence and does inspire

confidence in the minds of this Court and we have no good reasons to

doubt her asservations. Moreover, P. W.3 I Doctor, in her deposition, had

categorically stated as under:

"Details regarding sexual violence, there was penetration

into the genitalia area by penis and also by finger. There was
penetration into the anus by penis. There is force masturbation of
self by survivor. There is masturbation of assailant by survivor,
force manipulation of genital of assailant by survivor. There is
kissing, licking or sucking of survivor body. There is
touching/fondling of survivor' s body. According to the survivor
she had changed her clothes, undergarment, passed urine, stool
Page 6 of 12
 '
and rinsing of mouth after the incident. According to the victim
there was bleeding from the vagina after the history of sexual
violence. There is history of pain while passing urine.

On examinations there was abrasions, two linear lines on

the right zygomatic bone area of the victim. Genital examination
- there is tear at multiple sides in the hymen, no active bleeding,
there is 2cm linear tear with bleeding in the perineum . Sample
was collected for HIV, VDRL, HbsAg. Urine test for pregnancy
was conducted. Swabs from stains on the body was collected.
Scalp hair was collected and oral swabs was collected. Pubic hair
was collected. Two vulva! swab were collected, two vaginal
swabs were collected and two anal swabs were collected. All the
samples were handed over to the Police."

9. It was the statement of the Doctor (P.W.3) before the Court

that there is 2cm laceration of perineum with active bleeding with

unintact hymen. Her medico-legal report was marked as Ex.P2,

wherein, based on the medical examination on the victim girl (P.W.2),

the following final opinion had been given in the report (Ex.P2):

"Recent Sexual intercourse cannot be ruled out."

10. Even in her cross-examination, she had stated that there was a

tear in the hymen, but she was unable to identify whether the tear

occurred recently or already existed in it. Be that as it may, it was

obvious that there was an aggravated sexual assault on the victim girl,

which is evident from the detailed medical examination under Column

l 5F and the same are reproduced hereunder:

Oral sex performed by assailant on survivor y Don 't know

N
DNK
Forced Masturbation of self by survivor y N DNK
Masturbation of Assailant by Survivor, Forced Manipulation of y N DNK
enitals of assailant b survivor

Page 7 of 12
 y
Exhibitionism (perpetrator displaying genitals) N DNK
Did ejaculation occur
(va ina/anus/mouth/urethra)?
outside body orifice Y N DNK
If yes, describe where on the body
Kissing, licking or sucking any part of survivor' s body y N If yes describe
Touching/fond ling y N If yes describe
Condom used* y DNK
N
y
If yes status condom N DNK
y
Lubricant used* N DNK
If yes, describe kind oflubricant used
If object used, describe object:
Any other forms of sexual violence

11 . The sexual abuse of the victim girl by the accused was duly

established by the prosecution through medical evidence and thus, there

was proper corroboration of the evidence of P. Ws.1 & 2 with the

medical documents. Above all, the answer given by the appellant, when

he was questioned under Section 313(l)(b) Cr.P.C., is only the ipse

dixit of the appellant and no attempt was made by him to disprove the

version of the prosecution and the victim girl as well.

12. It was not in dispute that the victim girl (P.W.2) was born on

26 .02.2006 as per the birth certificate marked as Paper Book-I, as per

which, the age of the victim girl was around 15 years only on the day of

occurrence. Thus, we are convinced that the prosecution was able to

prove the guilt of the accused beyond reasonable doubt both through

ocular and medical evidence. As per the dictum laid down by the

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

SC 5019, the statement of the prosecutrix, if found to be worthy of

Page 8 of 12
credence and reliable, reqmres no corroboration and the court may

convict the Accused on the sole testimony of the prosecutrix.

13 . In yet another case, the Apex Court in Rai Sandeep alias

Deepu v. State (NCT of Delhi), reported in (2012) 8 SCC 21

elaborately dealt with the reliability of "sterling witness", by observing

as follows:

22. In our considered opm1on, the "sterling witness"

should be of a very high quality and calibre whose version
should, therefore, be unassailable. The court considering the
version of such witness should be in a position to accept it for
its face value without any hesitation. To test the quality of such
a witness, the status of the witness would be immaterial and
what would be relevant is the truthfulness of the statement
made by such a witness. What would be more relevant would
be the consistency of the statement right from the starting point
till the end, namely, at the time when the witness makes the
initial statement and ultimately before the court. It should be
natural and consistent with the case of the prosecution qua the
accused. There should not be any prevarication in the version of
such a witness. The witness should be in a position to withstand
the cross-examination of any length and howsoever strenuous it
may be and under no circumstance should give room for any
doubt as to the factum of the occurrence, the persons involved,
as well as the sequence of it. Such a version should have co-
relation with each and every one of other supporting material
such as the recoveries made, the weapons used, the manner of
offence committed, the scientific evidence and the expert
opinion. The said version should consistently match with the
version of every other witness. 1t can even be stated that it
should be akin to the test applied in the case of circumstantial
evidence where there should not be any missing link in the
chain of circumstances to hold the accused guilty of the offence
alleged against him. Only if the version of such a witness
qualifies the above test as well as all other such similar tests to
be applied, can it be held that such a witness can be called as a
"sterling witness" whose version can be accepted by the court
without any corroboration and based on which the guilty can be
Page 9 of 12
 punished. To be more precise, the version of the s~id witness on
the core spectrum of the crime should remain intact while all
other attendant materials, namely, oral, documentary and
material objects should match the said version in material
particulars in order to enable the court trying the offence to rely
on the core version to sieve the other supporting materials for
holding the offender guilty of the charge alleged."

14. On evaluating the deposition of the victim on the touchstone

of the law laid down by the Apex Court, we are of the opinion that the

sole testimony of the PW3-victim is absolutely trustworthy and

unblemished and her evidence is of sterling quality. In this case, in

addition to the deposition of the victim girl (P. W .2 ), this Court do not

find any prevarication in the version of P. W. l (mother of the victim

girl). The evidences of P. Ws. l & 2 had duly been fortified by the
'
medical examination. The Apex Court in the case of State of U.P. Vs.

Babu/ Nath, reported in 1994 (6) SCC 29 observed that even an attempt

to penetration will constitute the offence.

15. At this juncture, we want to necessarily reiterate the

observations made by the Supreme Com1 in State of Puniab v. Gurmit

Singh, reported in (1996) 2 SCC 384, to the extent that the physical

sexual assault not only leaves worst memories, but also ruins the entire

life of the victim and while the murder shatters the body of a person, the

rape is destructive of personal liberty of a helpless/ noble creature. The

relevant passage of the judgment is extracted hereunder:

Page 10 of 12
 "21. ... We must remember that a rapist not only violates
the victim's privacy and personal integrity, but inevitably cause
serious psychological as well as physical harm in the process.
Rape is not merely a physical assault - it is often destructive of
the whole personality of the victim. A murderer destroys the
physical body of his victim a rapist degrades the very soul of the
helpless female. The courts, therefore, shoulder a great
responsibility while trying an accused on charges of rape. They
must deal with such cases with utmost sensitivity. 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 case
involving sexual molestations."

16. Though learned Senior Counsel for the appellant pointed

out that some of the vital witnesses had not been examined in this

case, it is pertinent to mention here with reference to the judgment of

the Supreme Court in the case of State of Himachal Pradesh vs.

Raghubir Singh, reported in (1993) 2 SCC 622 that evidence has to

be weighed and not counted and 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.

Page 11 of 12
 17. 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.

18. In the result, this Crl.A.N o.40/2023 stands dismissed and the

judgment and the order passed by the Special Judge (POCSO), West

Jaintia Hills District, Jowai is hereby upheld.

~d ),_ Sd f ~
([Link]) ([Link])
Judge Chief Justice

PRE-DELIVERY JUDGMENT IN
Crl.A.N o.40/2023

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