Crl.A./21/2024 of ELBERT MARAK Vs STATE OF MEGHALAYA on 30 September 2024

J U D G M E N T

Per W. Diengdoh, (J):

1. The judgment and order dated 01.04.2021 passed by the learnedSpecial Judge (POCSO), East Jaintia Hills District whereby the appellant herein was sentenced to undergo 7 years of rigorousimprisonment with fine of ₹ 5000/- (rupees five thousand) only, indefault of payment of fine, to further undergo 1(one) month simpleimprisonment for an offence committed under Section 361 IPC andfurther 10 years rigorous imprisonment with fine of 10,000/- (rupees₹ten thousand) only and also in default of payment of such fine, tofurther undergo another 3(three) months simple imprisonment for anoffence punishable under Section 6 POCSO Act is assailed herewith inthis instant appeal.

2. Briefly, the facts of the case is that on an FIR lodged by oneSmti. Durga Kanai before the Officer In-Charge, Khliehriat PoliceStation, East Jaintia Hills District, on 17.11.2016 with the informationthat her daughter who was staying at a place called Kseh, on16.11.2016 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 thatnight and is found missing. Hence the complaint.

3. On the basis of such information, the police accordinglyregistered the FIR as Khliehriat P.S. Case No. 298(11) 16 under Section361 IPC and an investigator was assigned to conduct the investigation.The Investigating Officer (IO), in course of investigation had recoveredthe said daughter, who was a minor at the relevant time along withShri. Elbert Marak from a place called Wahsarang. Thereafter, oncompletion of the investigation, the IO found that a well-establishedcase under Section 361 IPC read with Section 6 of the POCSO Act ismade out against the accused Elbert Marak and he is sent up to facetrial before the Special Court (POCSO).

4. In course of trial, the case being re-registered as Special CaseNo. 14 of 2020, the learned Special Judge has examined five witnessesand has also exhibited certain material evidence including documentsproduced by the Prosecution. After due procedure is complied with, onthe basis of the findings thereon, the Court has found it fit to find theaccused person guilty on the said two charges, that is, under Section361 IPC and Section 6 of the POCSO Act and he was accordinglysentenced 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 aspectof the matter as regard the relationship of the survivor and the appellantis not disputed, however the circumstances surrounding the wholeepisode has to be looked into to come to any conclusion as to the guiltor innocence of the appellant herein.

6. The learned LAC has submitted that the complainant/mother ofthe survivor in her deposition as PW1 has stated that “…One Saturdaymy daughter went to stay with her father at Lum Mynkseh and onSunday she left Lum Mynkseh at around 4:30 PM along with ElbertMarak, Ajay Langstang and another boy whom I know as Hundebrother of Elbert Marak….” In her cross examination this witness hasadmitted that the accused person/appellant is her neighbour and heused to visit their house frequently as he is a close friend of herchildren.

7. The survivor who has deposed before the trial court as PW2 hasalso stated that “…On the day of the incident my elder sister AnikaKanai requested Ajay Langstang, Admission Marak and Elbert Marakto drop me home…” “…The accused person Elbert Marak asked me to go alongwith him and promise to give me some eatable so I went alongwith him to his friend place but I do not know the place…” In her crossexamination the survivor has admitted to her relationship with theappellant when she stated that “…We consider Elbert as a familymember. My parent respect and trust the accused person. It is a factthat I am not scared of the accused person and I trust him…” She hasfurther stated that “…It is a fact that I have stated before the doctorwho medically examined me that I am in a relationship with theaccused person Elbert…” To interpret the above statements is but tocome to only one conclusion that is, that it is not a fact that theappellant had enticed or kidnapped the survivor. Therefore, there is noreason as to why the appellant should be convicted and sentenced aswas done so under Section 361 IPC, submits the learned LAC.

8. The learned LAC has further submitted that the main thrust ofthe argument on behalf of the appellant is to question the age of thesurvivor since there is nothing on record nor has it been proven incourse of evidence that the survivor is actually 12 years of age and thatshe was a minor at the time when the incident took place. Even if onetakes the statement of PW1 who has stated that “…The victim girl was12 years old at the time of the incident and studying in Class III(Three)...”, such statement has been made without any documentaryproof of age. This fact was also reiterated by the IO who has deposedas PW5, when in his deposition he has stated that “…The age of thevictim was given by her mother. It is a fact that no documents are thereto substantiate the age of the victim…” Under such circumstances, thedetermination of the age of the survivor has to be carried out accordingto the procedure laid down under Section 9 and 94 of the JuvenileJustice (Care and Protection of Children) Act, 2015. The case of Jarnail Singh v. State of Haryana, (2013) 7 SCC 263 has been cited by thelearned LAC in support of this contention.

9. On the findings of the trial court that the appellant hadcommitted sexual assault on the person of the survivor, the learnedLAC has submitted that on careful scrutiny of the evidence rendered byPW4 who is the Doctor who has medically examined the survivor atthe relevant point of time, what is apparent is that though this witnesshas given her opinion that upon examination of the survivor a case ofrecent sexual intercourse can be made out, however in the cross-examination, this witness has admitted that “…It is a fact I mentionedin my report that the hymen is torn with old tear and I want to statethat the old tear is more than a week…”. Since the appellant and thesurvivor were together from 16.11.2016 to 18.11.2016 therefore, therecould not have been any sexual intercourse or sexual assault as allegedtaking into account the statement of PW4.

10. In view of the above, the learned LAC has submitted that thelearned trial court has come to a wrong finding without carefulappreciation of the evidence on record and also without due applicationof mind and as such, the impugned judgment and conviction is liable tobe set aside and quashed by this Appellate Court.

11. However, the learned LAC has further submitted that in view ofthe fact that the appellant has already undergone imprisonment ofabout 8 years or so, no fruitful purpose would be served if this Courtremits the matter to the trial court for de novo trial to determine the ageof the survivor.

12. In support of his argument, the learned LAC has cited thefollowing authorities.

i.Sunil v. State of Haryana, (2010) 1 SCC 742, para 23, 24and 27;and 27;

ii.Massauddin Ahmed v. State of Assam, (2009) 14 SCC541, para 10, 11, 14, 17 and 18; and541, 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.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 theimpugned judgment and order on behalf of the State respondent hassubmitted that the argument and contention of the appellant through thelearned LAC is without basis and cannot be accepted by this Court.

14. On the contention that no case has been made out to convict theappellant under Section 361 IPC the learned AAG has submitted thatthe survivor in her deposition before the Court has clearly stated that“…The accused person Elbert Marak asked me to go alongwith himand promise to give me some eatable so I went along with him to hisfriend place…”. This act of the appellantin offering eatables to thesurvivor can only mean one thing that is, enticement. The word“entice” involves an idea of inducement or allurement in anotherthrough exciting hopes or desire in order to attract the child to go withthe offender. To elaborate on this contention, the learned AAG hasplaced 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 beendetermined, the learned AAG has submitted that the mother of thesurvivor in her deposition as PW1 has clearly stated in her examination-in-chief that the age of the survivor was 12 years at thetime of the incident. This statement has not been contradicted in cross-examination by the defence/appellant and no suggestion was ever putto the witness that the survivor was not a minor at the time of theincident. Even when the doctor who had medically examined thesurvivor had recorded her age as 12 years, this statement in evidencehas also not been challenged by the defence counsel and as such, theappellant cannot come at this stage to raise the issue of confirmation ofage of the survivor.

16. On the contention of the appellant that the learned trial court hascome to the conclusion that the appellant had committed sexual assaulton the survivor on the relevant date, which fact was also corroboratedby none other than the accused/appellant himself in his examinationunder Section 313 Cr.P.C, the learned AAG has submitted that thoughthe appellant has stated that the act of sexual intercourse was with theconsent of the survivor, however the survivor being a minor at therelevant point of time, such consent even if proven to be true, will nothold good in law as it is well settled that consent by a minor isimmaterial in sexual relationship.

17. This Court has duly considered the argument of the respectiveparties, the facts of the case have been enumerated hereinabove andreference to the same would be to the contextual aspect only.

18. The appellant it appears, has only stressed on the issue of agedetermination of the survivor to content that since the age of thesurvivor has not been established through evidence, it is the prerogativeof the appellant to seek determination of the same even at this stage ofthe proceedings.

19. The appellant has however failed to put forward any argument asfar as the determination of age of the survivor is concerned to say thataccording to him she was of majority age at the relevant period, nodefinite or even estimated age of the survivor has been proffered. Bethat as it may, this Court will look into this aspect of the matter beforeproceeding further.

20. Whenever there is a challenge to the age of a survivor in cases ofthis kind, as has been laid down under the relevant statutes and rules ina number of judicial pronouncements by the Apex Court and variousHigh Courts, the accepted procedure for determination of age is foundunder Rule 12 of the Juvenile Justice (Care and Protection of Children)Rules, 2007 which in turn derives its authority from Section 94 of theJuvenile Justice (Care and Protection of Children) Act, 2000. In fact, itis pertinent to mention here that when it comes to the issue ofdetermination of age of a victim of crime, the authority set out in thecase of Jarnail Singh (supra) also cited by the learned LAC wouldelucidate this aspect prominently, reference being made to para 22 and23 of the same which are reproduced herein below as:

“22. On the issue of determination of age of a minor, one onlyneeds to make a reference to Rule 12 of the Juvenile Justice(Care and Protection of Children) Rules, 2007 (hereinafterreferred to as “the 2007 Rules”). The aforestated 2007 Ruleshave been framed under Section 68(1) of the Juvenile Justice(Care and Protection of Children) Act, 2000. Rule 12 referred tohereinabove reads as under:

“12. Procedure to be followed in determination of age.–(1)In every case concerning a child or a juvenile in conflictwith law, the court or the Board or as the case may be, theCommittee referred to in Rule 19 of these Rules shalldetermine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from thedate of making of the application for that purpose.

(2) The court or the Board or as the case may be theCommittee shall decide the juvenility or otherwise of thejuvenile or the child or as the case may be the juvenile inconflict with law, prima facie on the basis of physicalappearance or documents, if available, and send him to theobservation home or in jail.

(3) In every case concerning a child or juvenile in conflictwith law, the age determination inquiry shall be conductedby the court or the Board or, as the case may be, theCommittee by seeking evidence by obtaining–

(a) (i) the matriculation or equivalent certificates, ifavailable; and in the absence whereof;

(ii) the date of birth certificate from the school (otherthan a play school) first attended; and in the absencewhereof;

(iii) the birth certificate given by a corporation or amunicipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) ofclause (a) above, the medical opinion will be soughtfrom a duly constituted Medical Board, which willdeclare the age of the juvenile or child. In case exactassessment of the age cannot be done, the court or theBoard or, as the case may be, the Committee, for thereasons to be recorded by them, may, if considerednecessary, give benefit to the child or juvenile byconsidering his/her age on lower side within themargin of one year,

and, while passing orders in such case shall, after taking intoconsideration such evidence as may be available, or the medicalopinion, as the case may be, record a finding in respect of his ageand either of the evidence specified in any of the clauses (a)(i),(ii), (iii) or in the absence whereof, clause (b) shall be theconclusive proof of the age as regards such child or the juvenilein conflict with law.

(4) If the age of a juvenile or child or the juvenile in conflictwith law is found to be below 18 years on the date ofoffence, on the basis of any of the conclusive proofspecified in sub-rule (3), the court or the Board or as thecase may be the Committee shall in writing pass an orderstating the age and declaring the status of juvenility orotherwise, for the purpose of the Act and these rules and acopy of the order shall be given to such juvenile or theperson concerned.

(5) Save and except where, further inquiry or otherwise isrequired, inter alia, in terms of Section 7A, Section 64 ofthe Act and these Rules, no further inquiry shall beconducted by the court or the Board after examining andobtaining the certificate or any other documentary proofreferred to in sub-rule (3) of this Rule.

(6) The provisions contained in this Rule shall also apply tothose disposed of cases, where the status of juvenility hasnot been determined in accordance with the provisionscontained in sub-rule(3) and the Act, requiring dispensationof the sentence under the Act for passing appropriate orderin the interest of the juvenile in conflict with law.”

23. Even though Rule 12 is strictly applicable only to determinethe age of a child in conflict with law, we are of the view that theaforesaid statutory provision should be the basis for determiningage, 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 isconcerned, between a child in conflict with law, and a child whois a victim of crime. Therefore, in our considered opinion, itwould be just and appropriate to apply Rule 12 of the 2007Rules, to determine the age of the prosecutrix VW, PW 6. Themanner of determining age conclusively, has been expressed insub-rule (3) of Rule 12 extracted above. Under the aforesaidprovision, the age of a child is ascertained, by adopting the firstavailable basis, out of a number of options postulated in Rule12(3). If, in the scheme of options under Rule 12(3), an option isexpressed in a preceding clause, it has overriding effect over anoption expressed in a subsequent clause. The highest rated optionavailable, would conclusively determine the age of a minor. Inthe scheme of Rule 12(3), matriculation (or equivalent)certificate of the concerned child, is the highest rated option. Incase, the said certificate is available, no other evidence can be

relied upon. Only in the absence of the said certificate, Rule12(3), envisages consideration of the date of birth entered in theschool first attended by the child. In case such an entry of date ofbirth is available, the date of birth depicted therein is liable to betreated as final and conclusive, and no other material is to berelied upon. Only in the absence of such entry, Rule 12(3)postulates reliance on a birth certificate issued by a corporationor a municipal authority or a panchayat. Yet again, if such acertificate is available, then no other material whatsoever is to betaken into consideration, for determining the age of the childconcerned, as the said certificate would conclusively determinethe age of the child. It is only in the absence of any of theaforesaid, that Rule 12(3) postulates the determination of age ofthe child concerned, on the basis of medical opinion.”

21. This Court would agree with the learned LAC that none of theabove 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 ofthe survivor at the relevant period of time was 12 years of age, thesame being also referred to by PW4, the Doctor who has reiterated thatthe age of the survivor was 12 years according to what the mother hasstated to her, in the absence of any confrontation by theaccused/appellant in the cross-examination of such witnesses, thisCourt has to accept the fact that the age of the survivor at the relevantpoint of time was 12 years of age. Another factor which may have beenmissed out in observation is the further assertion of the PW1 that at thatpoint of time, her daughter was studying in class III (Three), whichcould not be expected of a girl of 18 years or so to be studying is suchclass under normal circumstances.

22. Having held that the survivor was a minor at the time when theincident took place, also taking note of the fact that she has clearlystated in her deposition as PW2 that the appellant had promised to give her some eatables if she go along with him, which she eventually didand did not return home until after two days or so, this piece ofevidence would only prove that the minor child was enticed by theappellant to accompany him without the consent of the parent who areher lawful custodians.

23. The case of Arumugham (supra) relied upon by the learned AAGto canvass the issue of enticement is found relevant by this Court, whena perusal of para 14, 15 and 17 of the same, duly reproduced herein, setin juxtaposition with the facts of the case of the appellant, only oneconclusion can be drawn, that is, that the survivor in this case hasindeed been enticed by the appellant to accompany him, thus attractingthe provision of section 361 IPC. The findings of the learned TrialCourt in this respect cannot be faulted.

“14. The Supreme Court later considered the scope ofexpressions ‘takes’ and ‘entice’ in State of Haryana v. Raja Ram(1973) 1 SCC 544: AIR 1973 SC 819 = 1973 KHC 478. In thatcase, the Apex Court held thus:-

“The object of this section seems as much to protect theminor children from being seduced for improper purposesas to protect the rights and privileges of guardians havingthe lawful charge or custody of the minor wards. Thegravamen of this offence lies in the taking or enticing of aminor under ages specified in this section, out of thekeeping of the lawful guardian without the consent of theguardian. The words “takes or entices any minor…out ofthe keeping of the lawful guardian of such minor” inSection 361, are significant. The use of the word“Keeping” in the context connotes the idea of charge,protection, maintenance and control: further the guardian’scharge and control appears to be compatible with theindependence of action and movement in the minor, theguardian’s protection and control of the minor beingavailable, whenever necessity arises. On plaint reading ofthis section the consent of the minor who is taken orenticed is wholly immaterial: it is only the guardian’s consent which takes the case out of its purview. Nor is itnecessary that taking or enticing must be shown to havebeen by means of force or fraud. Persuasion by theaccused person which creates willingness on the part ofthe minor to be taken out of the keeping of the lawfulguardian would be sufficient to attract the section.”

15. In Shahjahan v. State of Kerela (2010 (4) KHC 294) thisCourt considered expressions ‘takes’ and ‘entices’, contained inSection 361 of IPC, in paragraph 20 of the judgment, whichreads thus:- “20. There is and can be difference between theexpressions “takes” and “entices” in S. 361 I.P.C. incertain cases, the meaning may overlap also. Theexpression “takes” may ordinarily refer to the grossphysical act of taking away manually. But the expressionmust cover not merely the gross overt act of physicallycarrying away a minor. Subtle variants of the act of takingmust also fall within the sweep of the expression ‘takes’ inS. 361 I.P.C. it would be incorrect to assume that ‘taking’is a culpable act which can take place only withoutconsent of the minor. A rule of the thumb that if theconsent of the minor is there, the contumacious act of“taking” can never take place would be too unrealistic andimpermissible. This distinction between “take” and“entice” cannot certainly be consent and absence ofconsent of the minor. Several subtle varieties of takingmay take place with the consent of the minor and withoutthe actual physical act of moving the minor. ‘Enticing’ aminor in language simply means luring or tempting orprompting a minor to move out of the custody of theguardian. Here also no gross physical act is necessary.Assurance given to a minor that if she comes out of thekeeping of the guardian, the minor shall be protected andpatronised must also necessarily fall within the range ofcontumacious conduct under S. 361. In short to me itappears that the expression “takes” and “entices” musttogether cover all acts by which it is ensured by theoffender that the minor moves out of the keeping of thelawful guardian. To give true effect to the purpose ofrational of the penal provision in S. 361 I.P.C., thoseexpressions must be given such a comprehensive andexhaustive sweep.”

17. That statutory provision and the precedence referred to abovelead us to conclude thus:-

(1) The consent of the minor who is taken or enticed iswholly immaterial.wholly immaterial.

(2) It is only the guardian’s consent which takes the case outof the purview of the penal provision.of the purview of the penal provision.

(3) It is not necessary that the taking or enticing must beshown to have been by means of force or fraud. Persuasionby the accused person, which creates willingness on the partof the minor to be taken out of the keeping of the lawfulguardian, will be sufficient to attract the section.(4) With the consent of the minor, without any element offraud, force or deceit, the minor can be moved out of thecustody of the guardian, and that would attract the expression‘takes’ or ‘entice’ under Section 361 of IPC.” shown to have been by means of force or fraud. Persuasionby the accused person, which creates willingness on the partof the minor to be taken out of the keeping of the lawfulguardian, will be sufficient to attract the section.(4) With the consent of the minor, without any element offraud, force or deceit, the minor can be moved out of thecustody 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 aminor will attract the rigors of the relevant provisions of the POCSOAct, depending on the gravity of such act, it may entail punishmenteither under Section 4 or 6 of the said Act.

25. A reading of the whole body of evidence would give a picture ofthe relationship between the appellant and the survivor, inasmuch aswhat is evident is that they are known to each other, the survivor is alsocomfortable in the company of the appellant and according to her shewas in a relationship with him. The survivor has however also relatedthe sequence of events right from the time the appellant enticed her tofollow him to an unknown place, later on she said that the place was alabour camp about three hours journey from her home. As she relatesthe fact that the appellant has committed penetrative sexual assault onher, the appellant has failed to refute such assertion when she wascross-examined by him, or rather his defence counsel. As has beenindicated hereinabove, the fact that there has been sexual intercourse between the two of them was fortified by the evidence of the Doctor asPW4.

26. In the light of such evidence, the statement of the survivor whois the victim of the crime, more particularly in cases of sexual assaultwhere more often than not, no eye-witnesses could be found, in thefacts and circumstances of this case, we find that the statement of thesurvivor has to be believed.

27. Consequently, on a final analysis of the evidence on record andon appreciation of the impugned judgment and order, we find that thesame has been rendered taking everything into consideration. Thus, noinfirmity can be found in such order, the same is hereby upheld.

28. This appeal is therefore found to be devoid of merits and isaccordingly dismissed.

29. Appeal disposed of. No costs.

30. The lower court records to be sent back.

(B. Bhattacharjee) (W. Diengdoh)

Judge Judge