Crl.A./21/2022 of AJAYBIRTH MARAK Vs THE STATE OF MEGHALAYA AND 3 ORS. on 14 October 2024

1. An undated FIR was filed by the mother of a minor girl, wherein was narrated an incident which allegedly took place on 24.01.2013 at about8:00 pm or so accusing the appellant herein that he had molested the saidminor girl at her residence.

2. The said FIR addressed to the Officer-In-Charge, Williamnagar Women Police Station was immediately registered on 24.01.2013 itself atabout 9:20 pm as Women P.S Case No. 01(01) 2013 under Section 354 IPCand investigation was launched.

3. In due course, the Investigating Officer (I/O) after completion of the investigation, filed the final report under Section 173 Cr.P.C. and in the charge sheet, the brief story of the prosecution’s case was noted to say thaton 24.01.2013, the appellant had molested the said minor girl at herresidence and accordingly, in course of investigation, the minor girl wastaken to the hospital for medical examination which revealed that there aresome scratch marks on the right side of her breast. The appellant wasapprehended and, on his being, arrested, the I/O then proceeded to examinerelevant witnesses, including recording of the statement of the complainantand the survivor. Eventually, the I/O found that a prima facie case underSection 354 IPC r/w Section 10 of the POCSO Act, 2012 is found wellestablished against the appellant/accused person and he was directed to standtrial.4.The learned Special Judge (POCSO), Williamnagar, East GaroHills District then proceeded with the trial in the case, the same beingnumbered as Special (POCSO) Case No. 3 of 2018. After charges wereframed, the learned Trial Court then examined as many as 9(nine)prosecution’s witnesses. On the conclusion of the recording of the depositionof the witnesses, the court then recorded the statement of the appellant underSection 313 Cr.P.C. Finally, after hearing the argument of the parties, the learned Trial Court came to the conclusion that the charges have been madeout against the accused person/appellant and vide judgment and order dated31.05.2022, has accordingly convicted him under Section 10 POCSO Act,imposing a concurrent sentence of 5(five) years with fine of ₹ 10,000/-(Rupees ten thousand) in default thereof, to undergo a further simpleimprisonment of two months.

5. This appeal filed under Section 374(2) Cr.P.C. is to challenge thelegality of such impugned judgment and order dated 31.05.2022 preferred bythe accused person, Shri Ajaybirth Marak.

6. Heard Mr. P.T. Sangma, learned counsel for the appellant, who has submitted that admittedly, the appellant is known to the family of thesurvivor being a frequent visitor of their home. On the day of the allegedincident, he was invited for a birthday party and accordingly, he went to thehouse for such purpose.

7. It is the further submission of the learned counsel that on thatday, after having dinner, the appellant was sitting in the sitting room and thesurvivor was there, she did sit on his lap as he used to treat her as his

daughter, but he did not commit any offensive act. In fact, there is nomalafide intention or mens rea as far as he is concerned.

8. As to the evidence of the prosecution’s witnesses, the learnedcounsel has submitted that the first objection is to the deposition of thecomplainant, who as PW-1 has admitted that she did not remember what waswritten in the FIR as her neighbour was helping her write the same, but shehad only signed in the said FIR. This according to the learned counsel is tobe taken seriously as the filing of the FIR was not proper.

9. The learned counsel has also submitted that the version of thecomplainant’s evidence as PW-1 has to be tested as to its truthfulness whenshe stated that when she came to the sitting room, she saw the appellantcommitting the crime, after which he stopped the act, however, in her cross-examination, she has stated that she peeped from her room and she saw theappellant keeping her daughter in his lap and touching her breast, thecontradiction in such statement can only lead to a presumption that the PW-1has not been able to state the actual facts.

10. Again, on the evidence of the Doctor who has examined thesurvivor soon after the incident has happened in which she has found thatthere was a small scratch mark on the breast of the survivor, the learnedcounsel has submitted that this Doctor who was examined as PW-8 hasadmitted in her cross-examination that she does not know who has madesuch scratch mark. Therefore, it may not have been made by the appellant,submits the learned counsel.

11. The learned counsel has referred to the statement of the appellantmade under Section 313 Cr.P.C to say that the appellant has not made anystatement to discriminate himself, rather he has denied any suggestion thathe was guilty of the offences alleged.

12. It is the submission of the learned counsel that the learned TrialJudge have not appreciated the composite evidence to notice thecontradiction and variation found in the testimonies of the witnesses andsince no incriminating materials are found against the appellant, his guilt nothaving been proved beyond reasonable doubt, the learned Trial Court has therefore come to a wrong conclusion by holding the appellant guilty of thealleged offence.

13. It is therefore prayed that the impugned judgment and order maybe set aside and quashed and the appellant be acquitted and released fromcustody forthwith.

14. Per contra, Mr. K. Khan, learned PP appearing for the Staterespondents, while defending the impugned judgment and order, hassubmitted that the prosecution has been able to prove the charges beyondreasonable doubt, when in cases of these kind involving sexual assault, thetestimony of the survivor is very material, but in this case, not only has thesurvivor been able to bring home the fact as regard the guilt of the appellant,even the complainant who is her mother has also confirmed the fact of theincident, since she was an eye witness to the same.

15. The learned PP has further submitted that the survivor herself hasbeen consistent in her testimony as to what actually happened on the date ofthe incident, narrating the events as it happened, before the police with herstatement recorded under Section 161 Cr.P.C and also her statement made

Conclusion

under Section 164 and finally, when she deposed as PW-2 before the TrialCourt. The defence or rather the appellant have not been able to dislodge orshake the evidence of the survivor, who has also confirmed that her mother(PW-1) has also witnessed the appellant touching her breast inside hersweater. There could be no other clinching evidence than this to prove theguilt of the appellant, submits the learned PP, and as such, the impugnedjudgment and order cannot be faulted, the same deserves to be upheld.

16. This Court on perusal of the relevant records and the impugnedjudgment and order, would notice that the allegation against the appellant isthat of aggravated sexual assault and outraging the modesty of a woman.However, since the learned Special Judge had considered it fit to proceedwith the trial focussing mainly on the aspect of aggravated sexual assault ona minor girl, the relevant provision under the POCSO Act was taken intoconsideration in course of the trial, especially when the sentence waspronounced, wherein Section 42 of the POCSO Act was taken recourse toimpose the much heavier punishment as far as the period of imprisonment isconcerned.

17. However, this Court cannot, but notice that when the chargeswere framed, the same was under two heads, one under Section 354 IPC andthe other under Section 10 of the POCSO Act. Section 10 of the POCSO Actis the prescribed punishment for aggravated sexual assault and therefore,cannot be the charged section. On an overall analysis of the facts andcircumstances of this case, particularly considering the fact that the survivorinvolved is a child of 8(eight) years old, the appropriate section under whichthe accused person/appellant ought to have been charged should have beensub-Section (m) of Section 9 of the POCSO Act which reads as follows:

“9. Aggravated Sexual Assault. – (a)…

(m) whoever commits sexual assault on a child belowtwelve years; or …”

18. Accordingly, this Court hereby alters the charge by replacingSection 10 in the original charge sheet with Section 9(m) POCSO Act.However, no additional or further evidence is required in this regard as theevidence on record is sufficient to prove a charge under Section 9(m) of thePOCSO Act.

Accordingly, this Court hereby alters the charge by replacing

19. Coming back to the appreciation of evidence in this case, the factthat the appellant had committed the offence as alleged, has been proven bythe testimony of the survivor herself when she has stated before the courtthat “2. After sometime, accused person, Ajaybirth Ch. Marak took me in hislap and embraced me and put his hand inside my clothes from the top andtouched my breast…” This evidence was corroborated by the complainantwho is her mother when as PW-1, in her evidence, she has stated that “1. …Iwas in my bedroom, accused person Ajaybirth Ch. Marak was sitting in thesitting room and he took my minor daughter, then aged about 8 years, whowas in the sitting room, in his lap and touched her breast inappropriately.Ajaybirth Ch. Marak pushed his hand inside the cloth while touching herbreast. 2. When I came to the sitting room, I saw the accused personcommitting the said crime and he suddenly stopped and I scolded him…”

20. The other aspect of the matter is the medical report of thesurvivor, wherein, on being sent for medical examination, the doctor whohad examined her when she appeared at the witness box as PW-8 hasdeposed that on examination of the survivor, she found finger nails scratcheson the left side of the breast of about 3 cm in length. In her cross-

examination, she has further admitted that “the scratch mark which I foundon the victim was a fresh scratch mark”. Of course, this witness is notcertain as to who had made the scratch mark on the victim. Even thesurvivor has not said anything about being scratched by the accused or anyother person. Even if this piece of evidence is not given much credence,suffice it say that the overwhelming evidence to clinch the case of theprosecution is the testimony of the survivor herself.

21. It is well settled that the testimony of a child witnessed under thePOCSO Act, if found to be worthy of credence and is reliable, wouldrequires no corroboration for the court to convict the accused on suchtestimony. In the case of Ganesan v. State represented by its Inspector of Police reported in (2020) 10 SCC 573, para 10.1, the Hon’ble SupremeCourt has observed as follows:

“10.1. Whether, in the case involving sexual harassment,molestation, etc., can there be conviction on the soleevidence of the prosecutrix, in Vijay, (2010) 8 SCC 191,it is observed in paras 9 to 14 as under: (SCC pp. 195-98)

“9. In State of Maharashtra v. ChandraprakashKewalchand Jain, (1990) 1 SCC 550, this Court held that a woman, who is the victim of sexual assault, is not anaccomplice to the crime but is a victim of anotherperson's lust and, therefore, her evidence need not betested with the same amount of suspicion as that of anaccomplice. The Court observed as under: (SCC p. 559,para 16)

"16. A prosecutrix of a sex offence cannot be puton a par with an accomplice. She is in fact a victim of thecrime. The Evidence Act nowhere says that her evidencecannot be accepted unless it is corroborated in materialparticulars. She is undoubtedly a competent witnessunder Section 118 and her evidence must receive thesame weight as is attached to an injured in cases ofphysical violence. The same degree of care and cautionmust attach in the evaluation of her evidence as in thecase of an injured complainant or witness and no more.What is necessary is that the court must be alive to andconscious of the fact that it is dealing with the evidenceof a person who is interested in the outcome of thecharge levelled by her. If the court keeps this in mind andfeels satisfied that it can act on the evidence of theprosecutrix, there is no rule of law or practiceincorporated in the Evidence Act similar to Illustration(b) to Section 114 which requires it to look forcorroboration. If for some reason the court is hesitant toplace implicit reliance on the testimony of the prosecutrixit may look for evidence which may lend assurance toher testimony short of corroboration required in the caseof an accomplice. The nature of evidence required tolend assurance to the testimony of the prosecutrix mustnecessarily depend on the facts and circumstances ofeach case. But if a prosecutrix is an adult and of fullunderstanding the court is entitled to base a convictionon her evidence unless the same is shown to be infirmand not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that theprosecutrix does not have a strong motive to falselyinvolve the person charged, the court should ordinarilyhave no hesitation in accepting her evidence."

10. In State of U.P. v. Pappu, (2005) 3 SCC 594,this Court held that even in a case where it is shown thatthe girl is a girl of easy virtue or a girl habituated tosexual intercourse, it may not be a ground to absolve theaccused from the charge of rape. It has to be establishedthat there was consent by her for that particularoccasion. Absence of injury on the prosecutrix may notbe a factor that leads the court to absolve the accused.This Court further held that there can be conviction onthe sole testimony of the prosecutrix and in case, thecourt is not satisfied with the version of the prosecutrix,it can seek other evidence, direct or circumstantial, bywhich it may get assurance of her testimony. The Courtheld as under: (SCC p. 597, para 12)

"12. It is well settled that a prosecutrixcomplaining of having been a victim of the offenceof rape is not an accomplice after the crime. Thereis no rule of law that her testimony cannot beacted upon without corroboration in materialparticulars. She stands at a higher pedestal thanan injured witness. In the latter case, there isinjury on the physical form, while in the former itis both physical as well as psychological andemotional. However, if the court of facts finds itdifficult to accept the version of the prosecutrix onits face value, it may search for evidence, direct orcircumstantial, which would lend assurance to hertestimony. Assurance, short of corroboration asunderstood in the context of an accomplice, woulddo."

11. In State of Punjab v. Gurmit Singh, (1996) 2SCC 384, this Court held that in cases involving sexualharassment, molestation, etc. the court is dutybound todeal with such cases with utmost sensitivity. Minorcontradictions or insignificant discrepancies in thestatement of a prosecutrix should not be a ground forthrowing out an otherwise reliable prosecution case.Evidence of the victim of sexual assault is enough forconviction and it does not require any corroborationunless there are compelling reasons for seekingcorroboration. The court may look for some assurancesof her statement to satisfy judicial conscience. Thestatement of the prosecutrix is more reliable than that ofan injured witness as she is not an accomplice. TheCourt further held that the delay in filing FIR for sexualoffence may not be even properly explained, but if foundnatural, the accused cannot be given any benefit thereof.The Court observed as under: (SCC pp. 39496 & 403,paras 8 & 21)

"8. ... The court overlooked the situation inwhich a poor helpless minor girl had found herselfin the company of three desperate young men whowere threatening her and preventing her fromraising any alarm. Again, if the investigatingofficer did not conduct the investigation properlyor was negligent in not being able to trace out thedriver or the car, how can that become a ground todiscredit the testimony of the prosecutrix? Theprosecutrix had no control over the investigatingagency and the negligence of an investigatingofficer could not affect the credibility of thestatement of the prosecutrix. ... The courts must,while evaluating evidence, remain alive to the factthat in a case of rape, no selfrespecting woman

would come forward in a court just to make ahumiliating statement against her honour such asis involved in the commission of rape on her. Incases involving sexual molestation, supposedconsiderations which have no material effect onthe veracity of the prosecution case or evendiscrepancies in the statement of the prosecutrixshould not, unless the discrepancies are suchwhich are of fatal nature, be allowed to throw outan otherwise reliable prosecution case. ... Seekingcorroboration of her statement before relying uponthe same, as a rule, in such cases amounts toadding insult to injury. ... Corroboration as acondition for judicial reliance on the testimony ofthe prosecutrix is not a requirement of law but aguidanceofprudenceundergivencircumstances. ...

* * *

21. ... The courts should examine thebroader probabilities of a case and not get swayedby minor contradictions or insignificantdiscrepancies in the statement of the prosecutrix,which are not of a fatal nature, to throw out anotherwise reliable prosecution case. If evidence ofthe prosecutrix inspires confidence, it must berelied upon without seeking corroboration of herstatement in material particulars. If for somereason the court finds it difficult to place implicitreliance on her testimony, it may look for evidencewhich may lend assurance to her testimony, shortof corroboration required in the case of anaccomplice. The testimony of the prosecutrix mustbe appreciated in the background of the entirecase and the trial court must be alive to its responsibility and be sensitive while dealing withcases involving sexual molestations."

(emphasis in original)

12. In State of Orissa v. Thakara Besra, (2002) 9SCC 86, this Court held that rape is not mere physicalassault, rather it often distracts (sic destroys) the wholepersonality of the victim. The rapist degrades the verysoul of the helpless female and, therefore, the testimonyof the prosecutrix must be appreciated in the backgroundof the entire case and in such cases, nonexaminationeven of other witnesses may not be a serious infirmity inthe prosecution case, particularly where the witnesseshad not seen the commission of the offence.

13. In State of H.P. v. Raghubir Singh, (1993) 2SCC 622, this Court held that there is no legalcompulsion to look for any other evidence to corroboratethe evidence of the prosecutrix before recording an orderof conviction. Evidence has to be weighed and notcounted. Conviction can be recorded on the soletestimony of the prosecutrix, if her evidence inspiresconfidence and there is absence of circumstances whichmilitate against her veracity. A similar view has beenreiterated by this Court in Wahid Khan v. State of M.P,(2010) 2 SCC 9 placing reliance on an earlier judgmentin Rameshwar v. State of Rajasthan, AIR 1952 SC 54.

14. Thus, the law that emerges on the issue is tothe effect that the statement of the prosecutrix, if found tobe worthy of credence and reliable, requires nocorroboration. The court may convict the accused on thesole testimony of the prosecutrix."

22. In view of the above findings and observations, this Court isconvinced that the appellant has indeed committed the offence as allegedand under the circumstances, the sentence imposed by the learned TrialCourt cannot be upset.

23. This appeal is accordingly dismissed as devoid of merits.

24. Matter disposed of. No costs.

25. Registry is directed to send back the Trial Court records.

Judge