Crl.A./35/2022 of ARINDOM DAS Vs THE STATE OF MEGHALAYA on 25 July 2024

1. The fact of the case, as can be gathered from the materialsavailable on record, is that the appellant was a teacher in Dalu BengaliSecondary School wherein the survivor was a student of class VII inthe said school. The survivor used to go for private tuition to theappellant. On 21-05-2016, a written FIR was lodged by PW 1, thefather of the survivor, alleging that on 16-05-2016 (Monday) aftercompletion of tuition, the appellant dropped the survivor back homeand finding no one in the room, he started molesting the survivor. ThePW 4, the mother of the PW 1 (grandmother of the survivor), who wasin the adjacent room, thought that there was something wrong andsecretly saw the appellant molesting the survivor. Seeing this, shebecame nonplussed and the appellant somehow managed to leave theplace. The matter was informed to the committee member of theschool for taking necessary action, but nothing was done. On thebasis of the FIR, Tura Women PS Case No. 18 (05) 2016 underSection 7/8 of POCSO Act was registered and the matter wasinvestigated into. Upon completion of the investigation, a charge-sheet was filed against the appellant on 29-11-2016 under Section 7/8POCSO Act. Thereafter, charge under Section 8 read with Section 18of the POCSO Act was framed against the appellant by the Trial Court on 10-03-2017 to which the appellant pleaded not guilty and claimedtrial. The prosecution in support of its case examined 11 (eleven)witnesses and exhibited 8 (eight) documents. After completion of theprosecution evidence, the statement of the appellant was recordedunder Section 313 Cr.PC on 17-01-2022. The appellant also examined4 (four) witnesses in his defence. The case was thereafter heard andvide impugned Judgement and Order dated 11-10-2022, the appellantwas convicted under Section 8 read with Section 18 of the POCSOAct and by order dated 13-10-2022 sentenced to undergoimprisonment for a period of one and half year with fine of Rs.20,000/- and in default to undergo another period of six monthsimprisonment.

2. Mr. S. Deb, learned Counsel appearing for the appellant submitsthat the FIR was filed on 21-05-2016 after a delay of five days fromthe date of incident which allegedly took place on 16-05-2016 and theprosecution has not explained the reason for such delay. He submitsthat unexplained delay makes the FIR suspicious and unworthy forlegal consideration. The learned Counsel further submits that the FIRmentioned about the occurrence of a single incident whereas thedeposition of the survivor speaks of occurrence of multiple incidents,which is nothing but an exaggeration of the alleged incident. Hesubmits that the alleged fact and the date of incident mentioned in theFIR is totally contradictory to the fact narrated in the evidence of thesurvivor. The finding recorded by the Trial Court as to the occurrenceof 16-05-2016 is not in the line of what has been stated by the survivorin her deposition. He also submits that the evidences of DW1 and DW2 show beyond doubt that the appellant did not even enter theplace of occurrence on the day of the alleged incident. He furthersubmits that the statement of the appellant under Section 313 Cr.PCand the deposition of DW 3 make it clear that there was a disputebetween the appellant and the PW 1 with regard to payment of tuitionfees and the FIR was lodged by the PW 1 to seek revenge against theappellant for demanding tuition fees and for refusing to providefurther tuition to the survivor in case of non-payment of tuition fees.He contends that the learned Trial Court discarded the defenceevidence without any valid reason and proceeded to hold that theprosecution version of the case stood established for the reason ofnon-reliability of the defence evidence. He submits that theprosecution has failed to establish a case of its own and the evidenceof the prosecution witnesses are self-contradictory. The learnedCounsel submits that the PW 4, who claimed to be an eye-witness ofthe incident, in her deposition stated that she saw the incident througha window hung with a curtain, whereas the sketch-map of the place ofoccurrence (Exhibit 3) does not show existence of any window on thewall between the place of occurrence and the adjacent room fromwhere the PW 4 asserted to have seen the incident. He submits thatthe evidence of PW 4 suffers from serious contradiction and is totallyunreliable for proving the prosecution case. He submits that theconduct of the PW 1 in first approaching the Managing Committee ofthe school seeking action against the appellant, and after failing in hiseffort, filing of the FIR dated 21-05-2016 and supplementary FIRdated 23-05-2016 by exaggerating the allegation, is clear indication ofvindictive mindset of the PW 1 to wreak vengeance against the appellant. The learned Counsel submits that the Trial Court hasignored the evidences which were in favour of the defence andproceeded to convict the appellant solely on the basis of theprosecution version of the case without any supporting evidence. Hesubmits that the conviction recorded by the Trial Court is notsustainable in law and the impugned Judgment and Order and theorder of conviction are liable to be set aside and quashed.

3. Per contra, Mr. N. D. Chullai, learned AAG submits that therewas no inordinate delay in filing the FIR as the offence alleged is withregard to sexual offence concerning a minor girl and question of delayis not at all material in cases of such offence. He submits that theprosecution case cannot be thrown out merely on the ground that therewas some delay in lodging the FIR. The learned AAG contends thatthere is no major contradiction in the evidence adduced by theprosecution and the sole testimony of the survivor is enough forbasing conviction in a case involving sexual offence. By referring tothe evidence of the survivor, the learned AAG submits that theincidences which are narrated therein have occurred on 16-05-2016,and minor confusion, if any, is due to the reason that the survivor wasonly about 12 years old at the time of the incident. He submits thatthe Court should examine the broader probabilities of a case and notget swayed away by insignificant discrepancies in the statement of thesurvivor. He submits that the supplementary FIR dated 23-05-2016has not been acted upon and has no significance in the trial andconviction of the appellant. In response to the argument of theappellant that the evidence of the PW 4 is contradictory to the Exhibit 3, the learned AAG refers to the evidences of PW 5 and PW 6 andsubmits that both the witnesses have stated that there is a bamboo wallbetween the place of occurrence and the adjacent room and the PW 4peeped through the gap on the bamboo wall and saw the appellantcommitting the crime. On the question of delay and reliability ofevidence of the survivor, the learned AAG places reliance on adecision of the Apex Court reported in (2020) 10 SCC 573, GanesanVs. State represented by its Inspector of Police (para 10.1) and theJudgment of this Court rendered by a Division Bench in Crl. A. No.31 of 2023, Shri. Mihkahtngen Sarubai Vs. State of Meghalaya & Anr.(para – 13). He submits that there is no merit in the present appealand prays for dismissal of the same.

4. The submissions made by the respective parties are carefullyconsidered and also perused the materials available on record.

5. The PW 1, the complainant and the father of the survivor, in hisexamination-in-chief before the Trial Court stated that the occurrencetook place on 16-05-2016 in his mother’s (PW 4) house at about 8.30pm and on that date, he was not at home and had gone out along withhis wife. He stated that his mother’s house is situated near his house.On the day of the incident, the survivor had gone to the house of theappellant for private tuition and was dropped back home by theappellant. The appellant told his mother that further teaching wasrequired and wanted to teach the survivor in his mother’s house. Hismother asked them to study in the room of his brother while she wasin the adjacent room. After noticing some sound coming from theroom where the survivor was taking tuition from the appellant, his

mother entered the room and at that time the appellant quietly ranaway. PW 1 further deposed that later he was informed by thesurvivor that the appellant used to teach her separately in his houseand the other students used to study at the verandah. The appellanthad threatened the survivor prior to the incident that if she revealedanything to anyone regarding anything wrong which he would commitagainst her, he would get the survivor failed in class and also kill herbrother. The PW 1 also stated that he came to know about the incidenton 18-05-2016 and thereafter informed the School ManagingCommittee on the same date. As the School Managing Committee didnot take any action against the appellant, he filed the FIR before theDalu Police Station on 21-05-2016 and exhibited the said FIR asExhibit-1. PW 1 stated that on the basis of the information receivedfrom his wife basing on the narration made by the survivor at the timeof her medical examination, he filed the supplementary FIR exhibitedas Exhibit-2. He stated that the police visited the place of occurrenceand had drawn the rough sketch map of the place of occurrence andexhibited the sketch map as Exhibit -3.

In his cross-examination, the PW 1 stated that the appellant washis best friend for a long time and her daughter used to take tuitionfrom him. Since the appellant was his friend, no tuition fee was fixedbut the appellant told him to pay as per his wish. He did not paytuition fee for more than last one year to the appellant. He denied thathe lodged a false case against the appellant as the appellant demandedtuition fee and there was an altercation between him and the appellant.He admitted that there was a delay in lodging the FIR but denied that it was afterthought and conspiracy against the appellant just toimplicate him in a false case.

6. The PW 2, the survivor, in her examination-in-chief stated thaton 16-05-2016 the appellant called her in his home to give her privatetuition. When she reached the house of the appellant, his niece wasalso studying there. The appellant sent his niece on the pretext thatshe was called for food by her mother. The appellant, thereafter,asked the survivor to promise not to reveal anything to anybody and ifshe revealed, her brother would be dead and she would be detained inthe class (not promoted). She promised not to reveal anythingthinking that the appellant was going to give her question paper forexam. On her promise, the appellant asked her to sleep with him towhich she replied that she would reveal the matter to her mother. Theappellant quietly came out of the room. She did not reveal the matterto anybody and as usual used to go for tuition. After few days of thefirst occurrence, on the fateful day, the date which she did not exactlyremember, she went to the house of the appellant for the tuition andafter the tuition was over, the appellant came to drop her home alongwith two others. After dropping the other two students, the appellantcame with her in her house and her grandmother (PW 4) made himseat in her room as her parents and her younger brother was notpresent at home. Then, in the room of her grandmother the appellantasked her to write a note from the rough copy. While she was writingthe note, the appellant put his hand on her breast. She pushed awayhis hand but again he put his hand on her breast. At that moment, shefound one scale nearby and struck him with the scale. Thereafter, the appellant made her lie down on the bed and covered her mouth withhis hand and he tried to insert his private part into her private part buthis private part could not reach her private part. Her grandmotherhearing some sound entered the room and on seeing her grandmother,the appellant fled away from the room. Her grandmother asked her asto what the appellant was doing and she narrated everything to herwhat the appellant had done to her. Thereafter her father, on beinginformed of the incident reported the matter to the police. She wastaken for medical examination to hospital at Tura. Her statement wasalso recorded by Magistrate at Tura which was exhibited as Exhibit-4.She stated that she was studying Class VIII and was going to the sameschool. After the incident she did not see the appellant coming to theschool.

In her cross-examination, the survivor stated that she used to goto take tuition to the house of the appellant thrice in a week i.e.Monday, Wednesday and Friday. She stated that she could not say thetime of the incident and when it took place but the incident took placein her house in the room of her grandmother. At the time of theincident her aunt and her grandmother were present in the house. Sheadmitted that during the course of the ordeal, she did not scream,shout or resist the appellant but denied that no such incident hadoccurred. She also denied that there was a hot altercation between herfather and the appellant because of demand of payment of tuition feesby the appellant which resulted in institution of the false case againstthe appellant.

7. The PW 3, the mother of the survivor, in her examination-in-chief before the Trial Court stated that she received the informationabout the incident from her mother-in-law on 18-05-2016. On thedate of the incident, she and her husband were not at home and onlythe survivor and her mother-in-law (PW 4) were present in the housewhen the incident took place. On hearing about the incident, sheenquired it from the survivor who affirmed what was stated by hermother-in-law. She also stated that the next date they informed thematter to the school authorities and finding no response, they went toDalu Police Station and lodged the FIR after two or three days. Sheaccompanied the survivor for medical examination. The PW 3 alsostated that during the course of medical examination, the survivorfurther revealed that the appellant wanted to rape her on the day ofincident and had forcibly pulled down the undergarment of thesurvivor but due to the sudden intervention of her mother-in-law, theappellant could not succeed and escaped from there. In her cross-examination, the PW 3 stated that she received the information of theincident after two days as her mother-in-law out of fear could notinform the matter immediately. She admitted that her mother-in-lawdid not see anything regarding pulling of inner garment of the survivorby the appellant. She admitted that the appellant was the private tutorof the survivor at a monthly tuition fee of Rs.500/- and stated that shewas not sure whether tuition fees for around one year was paid or notby her husband. She denied that when the appellant demanded hisarrear tuition fees from her husband, a dispute had arisen, which led tothe filing of the case against the appellant. She admitted that thesurvivor before the incident never lodged any complaint against the appellant. She exhibited Exhibit-5, the seizure list, by which the copyof birth certificate of the survivor was seized.

8. PW 4, the grandmother of the survivor, in her examination-in-chief before the Trial Court stated that on the day of the incident, theappellant came to her house and chose to take tuition of the survivorin her living room. She saw the survivor sitting on a chair and theappellant sitting on the edge of the bed and despite her persuasion toget a chair, the appellant refused the request, she left the room andwent to the other room of the house and while preparing tea for theappellant, she could clearly witness from the window hung with acurtain that the appellant had grabbed the breast of the survivor and hewas pulling the pant of the survivor. On seeing the incident, she wentto the tuition room and when she entered there, she saw the survivorhitting the appellant with a scale and on seeing her, the appellant leftthe place. The next day at around 10 a.m. she informed the incident toPW 6. She also deposed that the survivor told her that very evening ofthe incident that the appellant misbehaved with her at his tutorial placein the past and had warned the survivor not to disclose the same toothers or else her education would be ruined.

In her cross-examination, she stated that she did not rememberthe date of the incident but stated that on the day of incident, PW 1and PW 3 were not at home. She denied the suggestion that no suchincident had taken place and stated that when she entered the room,both the appellant and the survivor were sitting on the bed. When theappellant tried to pulled down the pant of the survivor, she did not raise her voice. She reported the matter to the parents of the survivoron the next day.

9. The PW 5, in his examination-in-chief stated that on 17-5-2016his nephew told him about the incident of 16-05-2016. He stated thatPW 4 saw the incident by peeping through the wall of the place ofoccurrence which was made of bamboo and there was a gap inbetween. He stated that he informed about the incident to the PW 1 on18-05-2016 in the afternoon. He also stated that as soon as heinformed the PW 1, he got angry. The witness further stated that hetold the PW 1 to cool down as he was a committee member of theDalu Bengali Secondary School and within 10 minutes, he informedthe Secretary of the said school of the incident. Within 10 minutes,the Secretary came to meet him and PW 1 at Dalu Rama Krishna SevaSanga. He narrated everything about the incident to the Secretary towhich the Secretary said that he would hold enquiry about the incidentas the appellant is working under him. In his cross-examination, thePW 5 stated that on 17-05-2016 he went to the house of his nephewwhere his sister-in-law narrated the incident to him. He also statedthat at that relevant period, he was one of the members of ExecutiveCommittee of Dalu Bengali Secondary School and at his instance theappellant was put under suspension.

10. The PW 6, in his examination-in-chief also stated that the PW 4saw the incident by peeping through the gap of the bamboo wall. Hestated that he informed the PW 5 about the incident who, in turn,informed the parents of the survivor and, thereafter PW 5 and PW 1informed the matter to the Managing Committee of Dalu Bengali School where the appellant was a teacher. In his cross-examination,the PW 6 stated that he heard about the incident from his mother on17-05-2016 at about 3.00 p.m. and, thereafter he informed the matterto his uncle, the PW 5, on 18-05-2016.

11. The PW 7 is a medical witness and the PW 8 is a seizurewitness. Their evidences are found to be of not much relevance fordeciding this appeal. The learned Counsel for the appellant has alsonot referred to the evidences of the said witnesses in his argumentbefore this Court.

12. The PW 9 is the police officer who received the FIR on 22-05-2016 on being forwarded by Dalu P.S. to Women P.S. Tura andregistered the case and endorsed to PW 10 for investigation. The saidwitness also had sent the survivor for medical examination to theMaternity and Child Hospital, Tura and exhibited P-Exhibit 7, theseizure list, before the Trial Court.

13. The PW 10, the Investigating Officer of the case, in herexamination-in-chief stated that the survivor was sent for the medicalexamination. After the medical examination of the survivor, theappellant was arrested and forwarded to the Court. The statement ofthe complainant and other witnesses were recorded by her at TuraWomen P.S. The statement of the survivor was also recorded underSection 164 Cr.PC. The birth certificate of the survivor was seized byher during the course of the investigation. After completion of theinvestigation, she submitted the charge-sheet against the appellant basing on the statement of the survivor, complainant and otherwitnesses and exhibited the charge-sheet as P-Exhibit 8.

In her cross-examination, she stated that the FIR was filed on21-05-2016 without explaining delay. There was a supplementary FIRdated 23-05-2016 filed by the complainant but it was not registeredand no separate investigation was made on the basis of the allegationmade therein. She admitted that as per the rough sketch of the placeof occurrence drawn by the PW 11, there was no window in theparticular room. The biological samples collected from the survivorwere not sent for FSL examination as she found that it was a case ofmolestation. She denied that she has not done the investigationproperly and filed a false charge-sheet against the appellant.

14. The appellant, in his statement under Section 313 Cr.PC hasdenied the entire allegation against him and claimed the case to be afalse case. The appellant stated that 16-05-2016 when he went to dropthe survivor there was other students present along with him. He alsostated that on 19-05-2016 at around 5.30 p.m. he had a quarrel withthe PW 1 regarding payment of tuition fee for one year five monthswhich was long overdue. When he asked for payment, the PW 1refused to pay, for which he said that he would not be taking tuition ofsurvivor anymore. Then the PW 1 threatened him and stated that hewould not be able to take tuition of others and also would not be ableto teach in the school.

15. The DW 1, in her examination-in-chief stated that on 16-05-2016 she along with six other students including the survivor were dropped by the appellant. When they reached to the residence of thesurvivor, she called her mother but her mother was not available athome, however, her grandmother came out and took the survivorinside. Thereafter, the appellant dropped her at her resident. Therewere still five students remaining to be dropped and saw the appellantwent to drop them. She stated that while dropping, the appellant didnot enter the residence of the survivor. In her cross-examination, shestated that she did not know whether after dropping all the students theappellant had returned back to the house of the victim or not.

The DW 2, also deposed in the line of DW 1 and in her cross-examination stated that she did not know after dropping her whetherthe appellant had returned back to the house of the victim or not.

16. The DW 3, in her deposition stated that on 19-05-2016 shealong with four-five friends were standing in front of the house of theappellant. The appellant was also present there and he met with PW 1.There was heated argument and altercation between them with regardto the error of tuition fees for more than one year of the survivor whois the daughter of the PW 1. When PW 1 said that he would not payany tuition fee, the appellant told that he would not give any furthertuition to the survivor. Then PW 1 threatened the appellant that hewould not allow taking of tuition of any student and he would furthermake the appellant terminated from school as his relative was in theManaging Committee of the School. In her cross-examination, thesaid witness stated that she knew the survivor but her tuition timingwas different. On 19-05-2016, she along with her friend were waiting for tuition as they came early at 5.30 p.m., half an hour early to thescheduled time.

17. An analysis of the evidences as summarized above wouldundoubtedly establish that on 16-05-2016, the survivor went fortuition to the place of the appellant and she was brought back home bythe appellant. The survivor and the PW 4 in their evidences before theTrial Court clearly stated that on the day of incident the appellant wasthere in the place of occurrence on the pretext of giving tuition to thesurvivor. The appellant in his cross-examination of both the aforesaidwitnesses has nowhere disputed his presence in the place ofoccurrence. The cross-examination of the said witnesses was confinedonly to the questions relating to the commission of actual crime.Although, the appellant subsequently tried to dispute his presence inthe place of occurrence by adducing evidence of DW1 and DW2, butthe said defence witnesses in their cross-examination categoricallystated that they did not know whether after dropping them, theappellant went back to the place of occurrence or not. That apart, thesurvivor in her evidence before the Trial Court specifically stated thaton the day of the incident, the appellant came to drop her along withother two students and after dropping the other two, came with her toher house. The said evidence of the survivor was not challenged by theappellant in her cross-examination. Thus, the evidences of DW1 andDW2 do not create any doubt over acceptability of the evidences ofthe survivor and the PW4 with regard to the appellant’s presence at theplace of occurrence on the day of the incident.

18. The DW 3 was examined on behalf of the appellant to supporthis stand that there was a heated argument and altercation betweenhim and the complainant which resulted in filing of a false caseagainst the appellant. The DW 3, a student of the appellant, in hisdeposition stated that on 19-05-2016 he arrived half an hour early fortuition and was standing in front of the house of the appellant alongwith the appellant and other friends. There they met the complainantand a heated argument and altercation ensued between the appellantand the complainant over payment of tuition fee of the survivor. Thelearned Trial Court did not accept the evidence of the said witness onthe ground that the evidence was not above suspicion. Out of themany reasons given by the Trial Court, the arrival of the said witnessfor tuition half an hour before the scheduled time without any specificreason inspite of the fact that he was staying in the same locality hasbeen held as one of the reasons for not believing his evidence. Thecreation of suspicion in the mind of the Trial Court while dealing withthe evidence of DW 3 does not seem to be unjustified. The evidenceof the DW 3 revealed that they were standing in front of the house ofthe appellant and the appellant was standing with them. While it isunderstandable that because of early arrival before the scheduled timefor tuition, the DW 3, being a student was waiting outside, but whatmade the appellant to wait outside along with the student is beyondany logical explanation. The evidence of DW 3 did not indicate thatthe complainant was supposed to come there and the appellant waswaiting outside to meet him. The evidence of the DW 3, therefore, ishighly doubtful and not worth acceptance.

19. Moreover, the appellant did not put any specific question withregard to the incident of 19-05-2016 to the PW 1, the complainant,while he was cross-examined. The appellant did put some questionsconcerning non-payment of tuition fees by the complainant anddemand of tuition fee by the appellant which resulted in altercationand heated argument between them, but without specifying any date ortime. There is also nothing on record to suggest that the appellant hadinformed about the incident of 19-05-2016 to the InvestigatingAuthority at the stage of investigation. No assertion has been madethat the appellant was prevented from disclosing the occurrence of 19-05-2016 to the Investigating Authority. In addition, the PW 10, theInvestigating Officer, was also not cross-examined on the point thatthe FIR filed by the complainant was an outcome of the altercationand the heated arguments between the appellant and the complainant.In fact, the mention of occurrence of 19-05-2016 does not find placeanywhere in the entire record of the case prior to the recording ofstatement of the appellant under Section 313 Cr.PC. If there was at allan incident of 19-05-2016, the appellant would not have remainedsilent for such a long time and would have definitely disclosed itbefore the Investigating Authority at the time of the investigation ofthe matter. The appellant’s version of the case, as such, is not at allbelievable.

20. The PW 1, in his evidence has stated that he came to knowabout the incident on 18-05-2016 and on the same day informed theSchool Managing Committee. The PW 5, in his evidence stated thathe was informed about the incident by the PW 1 on 18-05-2016 and on the same date informed the Secretary of the Dalu SecondaryBengali School about the incident. The Secretary came to meet himand the PW 1 at the Dalu Ramkrishna Seva Sanga within 10 minutesof the information. The above evidences were not disputed by theappellant while cross-examining the said witnesses. The appellantexamined the DW 4, the Secretary of the School, to bring on recordthe complaint filed by the complainant to the Managing Committee ofthe school apparently to project that the complaint of the PW 1,exhibited as DExhibit-1(OSR), was made on 20-05-2016, i.e., after thedate of taking place of the incident of 19-05-2016. The DW 4, in hisevidence stated that the complaint was received by the previousSecretary of the School. Hence, the disclosure made by the DW 4 wasfrom the information derived from the school record and not from hispersonal knowledge. The mention of the date on the complaint wouldnot necessarily mean that the then Secretary of the School did notreceive any information with regard to the incident of 16-05-2016 on18-05-2016 as stated by the PW 1 and PW 6. Receiving informationdoes not always mean receiving written information, it can well beverbal. The evidence of DW 4 at the best would prove that the writtencompliant from the complainant was received on 20-05-2016, but noway would disprove the evidences of the PW 1 and the PW 6 that theinformation was given to the then Secretary of the School on 18-05-2016. The appellant has not examined the person who was function asthe Secretary of the School at that relevant point of time of theincident to disprove the evidences of the PW 1 and the PW 6 and,hence, the contention that the FIR was lodged as an outcome of theincident of 19-05-2016 cannot be accepted.

21. The PW 4, in her deposition stated that she saw the incident on16-05-2016 from a window hung with a curtain. The appellantchallenged the said version of the evidence by contending that theExhibit-3, the sketch map of the place of occurrence, showed thatthere exists no window on the wall between the place of occurrenceand the adjacent room from where the PW 4 has claimed to have seenthe occurrence. The record of evidence reveals that the sketch map ofthe place of occurrence was exhibited by the PW 1 during the courseof his examination before the Trial Court on 12-05-2017. The PW 4was examined by the Trial Court on 14-05-2019, much after theevidence of the PW 1, but the Exhibit-3 was not put before her toconfront her when she was cross-examined. The depositions of PW 5and PW6 revealed that there exists a bamboo wall between the placeof occurrence and the room from where the PW 4 had seen theoccurrence and there were gaps on the bamboo wall. The abovedepositions of the PW 5 and PW 6 were not disputed by the appellantwhile cross-examining the said witnesses. In the circumstances, itcannot be said that the evidence of PW 4 is in total contradiction ofthe Exhibit-3 and it was impossible for her to see the occurrence on16-05-2016.

22. The learned Counsel for the appellant is correct in hiscontention that the facts stated in the FIR speaks of occurrence of oneincident whereas the statement of the survivor under Section 164Cr.PC as well as her evidence before the Trial Court disclosesoccurrence of more than one incident. The statement of the survivorunder Section 164 Cr.PC and her evidence before the Trial Court are not confined to the incident stated in the FIR. The statement underSection 164 Cr.PC of the survivor did not refer to any particular dateof incident. The survivor stated that she did not remember the date.In her evidence before the Trial Court, the survivor mentioned about16-05-2016, but wrongly stated the date to be the date of occurrenceof the first incident which took place at the residence of the appellant.While narrating about the incident which actually took place on 16-05-2016, she stated that she did not remember the date. Apart fromthe above discrepancy in the date of occurrence, there appears to be noother major contradiction having bearing on the material aspect of theprosecution case. The survivor, in her evidence before the Trial Courtstated that on the day of incident the appellant put his hand on herbreast and made her to lie down on the bed and attempted to touch herprivate part. The grandmother (PW 4) of the survivor hearing somesound entered the room which made the appellant ran away from theplace. In her statement recorded under Section 164 Cr.PC, thesurvivor narrated the same incident. The evidence and the statementof the PW 2 under Section 164 Cr.PC are in the line of the allegationmade in the FIR and stood unshaken at the trial. Just because theevidence of the prosecution made disclosure of more facts beyond thefacts stated in the FIR, the entire prosecution case cannot be rejected.The additional fact revealed by the survivor at the trial did not diluteor alter the allegation made in the FIR. What matters most in acriminal trial is that the fact basing on which the accused was chargedand made to face the trial, has been proved beyond reasonable doubtor not. A comparative reading of the statement under Section 164Cr.PC and the evidence of the survivor recorded during the course of trial does not point out any serious contradiction leading to formationof doubt in the prosecution case. Having regard to the fact that thesurvivor was less than 13 years old at the time of the occurrence of theincident, a wrong statement with regard to the date of occurrence ofthe incident is considered to be insignificant. The evidence adducedby the survivor fully support the material fact of the prosecution caseand the defence has failed to rebut same.

23. The decisions relied upon by the learned AAG relate to thequestion of delay in lodging FIR and importance and weightage ofevidence of victim in a case involving sexual offence. In the case ofShri. Mihkahtngen Sarubai Vs. State of Meghalaya & Anr. (supra), aDivision Bench of this courtwhile deliberating on the issue of delay inlodging FIR in respect of sexual offence held that: - “13. The Hon’ble Supreme Court, in the case of State ofHimachal Pradesh Vs. Prem Sing, reported in AIR 2009SC 1010, had considered the issue of delay in respect ofoffences involving sexual assault at length and observedas under:- “So far as the delay in lodging the FIR inquestion is concerned, the delay in a case of sexualassault, cannot be equated with the case involving otheroffences. There are several factors which weigh in themind of the prosecutrix and her family members beforecoming to the police station to lodge a complaint. In atradition bound society prevalent in India, moreparticularly, rural areas, it would be quite unsafe tothrow out the prosecution case merely on the ground thatthere is some delay in lodging the FIR…”.

24. Further, the Apex Court in the case of Ganesan Vs. Staterepresented by its Inspector of Police(supra) observed as under: - “10.1. Whether, in the case involving sexual harassment,molestation, etc., can there be conviction on the soleevidence of the prosecutrix, in Vijay v. State of M.P., it isobserved in paras 9 to 14 as under : (SCC pp.195-98)

“9………………………….

10……………..

11. In State of Punjab v. Gurmit Singh, this Court heldthat in cases involving sexual harassment, molestation,etc. the court is duty-bound to deal with such cases withutmost sensitivity. Minor contradictions or insignificantdiscrepancies in the statement of a prosecutrix should notbe a ground for throwing out an otherwise reliableprosecution case. Evidence of the victim of sexualassault is enough for conviction and it does not requireany corroboration unless there are compelling reasonsfor seeking corroboration. The court may look for someassurances of her statement to satisfy judicialconscience. The statement of the prosecutrix is morereliable than that of an injured witness as she is not anaccomplice. The Court further held that the delay infiling FIR for sexual offence may not be even properlyexplained, but if found natural, the accused cannot begiven any benefit thereof. The Court observed asunder…….

8……….

21…. The Courts should examine the broaderprobabilities of a case and not get swayed by minorcontradictions or insignificant discrepancies in thestatement of the prosecutrix, which are not of a fatalnature, to throw out an otherwise reliable prosecutioncase. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration ofher statement in material particulars. If for some reasonthe court finds it difficult to place implicit reliance on hertestimony, it may look for evidence which may lendassurance to her testimony, short of corroborationrequired in the case of an accomplice. The testimony ofthe prosecutrix must be appreciated in the background ofthe entire case and the trial court must be alive to itsresponsibility and be sensitive while dealing with casesinvolving sexual molestation.’

12……….

13. In State of H.P v. Raghubir Singh this Court heldthat there is no legal compulsion to look for any otherevidence to corroborate the evidence of the prosecutrixbefore recording an order of conviction. Evidence has tobe weighed and not counted. Conviction can be recordedon the sole testimony of the prosecutrix, if her evidenceinspires confidence and there is absence of circumstanceswhich militate against her veracity. A similar view hasbeen reiterated by this Court in Wahid Khan v. State ofM.P. placing reliance on an earlier judgment inRameshwar v. State of Rajasthan.

14……..”

25. The position which emerges from above is that the delay infiling FIR for sexual offence cannot be equated with the caseinvolving other offences. The delay in case of sexual assault may notbe even properly explained, but if found natural, the accused cannotbe given any benefit thereof. Furthermore, in cases involving sexualoffence, minor contradictions or insignificant discrepancies in thestatement of a victim should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexualoffence is enough for conviction and it does not require anycorroboration unless there are compelling reasons for seekingcorroboration. The Court should examine the broader probability of acase and not get swayed away by minor contradiction or insignificantdiscrepancies to throw out and otherwise reliable prosecution case.

26. In the present case, the incident took place on 16-05-2016 andthe FIR was lodged on 21-05-2016 i.e. after four days of the incident.The delay, as such, is not very long and cannot be termed asunreasonable or unnatural requiring proper explanation under law inthe factual background of the case. Further, the discrepancy in theevidence of the survivor with regard to the date of occurrence whichhas been pointed out by the appellant does not go to the root of theprosecution case. The Trial Court also has based its judgement andorder of conviction on the facts on which the charge against theappellant was framed at the trial and not by placing reliance on anyother additional fact.

27. Insofar as, the contention of the appellant of exaggeration ofallegation on the basis of the supplementary FIR (Exhibit 2) isconcerned, the PW 10 in her deposition stated that the said FIR wasnot registered and no separate investigation was conducted on theallegation made therein. Hence, the contention appears to be of notmuch relevance as there is nothing to show that the allegation made inthe supplementary FIR has been relied on by the Trial Court to recordany finding against the appellant.

28. For what has been discussed above, no ground has been madeout by the appellant to interfere with the Judgment and Order ofconviction and Order of Sentence passed by the learned Special Judge(POCSO), West Garo Hills, Tura in Special (POCSO) Case No. 22 of2016 (G.R. No. 132/2016) and the appeal stands dismissed. The bailbonds of the appellant, if any, are hereby cancelled. The appellant isdirected to surrender before the Trial Court and be taken into custodyforthwith to serve the sentence.

29. Let an authenticated copy of this Judgment and Order befurnished to both the parties immediately, free of cost.

JUDGE

Meghalaya25.07.2024“Biswarup-PS”