LIOS SWER Vs. STATE OF MEGHALAYA

JUDGEMENT

(1.) This Criminal Appeal is directed against the judgment and order dtd. 9/3/2023, passed by the Special Judge (POCSO) / Addl.DC(J), East Jaintia Hills District, Khilehriat, Meghalaya in Special (POCSO) Case No.36 of 2020 and the accused / Appellant herein was convicted by the Trial Court for the offence under Sec. 5(l)/6 of The Protection of Children from Sexual Offences Act, 2012 (in short 'POCSO Act, 2012') and Sec. 506 IPC and sentenced to undergo Rigorous Imprisonment for Serial No.01 Supplementary List a period of 10 years and to pay a fine of Rs.10,000.00, in default to undergo Simple Imprisonment for five months in respect of Sec. 5(l)/6 of POCSO Act, 2012 and to pay a fine of Rs.5,000.00 for the offence under Sec. 506 IPC in default to undergo Simple Imprisonment for one month. In addition, compensation of Rs.3,00,000.00 was directed to be paid by the accused to the victim girl. Brief Prosecution Case:

(2.) A complaint was given by the mother of the victim girl on 22/6/2013 before Khliehriat Police Station, East Jaintia Hills District, stating that the accused, namely, Lios Swer, who is a Teacher and the step father of the victim girl, had committed aggravated penetrative sexual assault on her daughter aged about 12 years and also raped her on 17/6/2013. Based on the complaint, FIR (Ex.P1) in Khliehriat P.S.Case No.159 (06) 13 came to be registered on 22/6/2013 against the accused under Ss. 376(2)(f)/506 IPC and thereafter, Sec. 6 of the POCSO Act, 2012 was included. 2.1. After investigation, initially, a charge sheet dtd. 3/12/2013 was laid before the Jowai ADM and after inclusion of Sec. 6 of the POCSO Act, 2012, the case was transferred to Special Judge (POCSO), Jowai and subsequently, after bifurcation of District Judiciary, the case was tried by the Special Judge (POCSO) / Addl.DC(J), East Jaintia Hills District, Khilehriat, Meghalaya in Special (POCSO) Case No.36 of 2020 from 14/9/2020 and the Special Judge (POCSO), East Jaintia Hills District had taken cognizance of the case. The prosecution, in order to substantiate the commission of the offence against the accused, had examined as many as 7 witnesses and marked 8 documents. On the side of the accused, 3 witnesses were examined and one document (Ex.D1) and Paper Marks (D1 to D7) were marked. Both statements under Ss. 161 and 164 Cr.P.C. were obtained from the victim girl (P.W.2). The accused was questioned under Sec. 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 offences and convicted him as stated supra.

(3.) The learned counsel for the appellant submitted that the appellant has been convicted solely on the basis of the evidence of the victim girl (P.W.2) and as per the settled law, the sole testimony must have a sterling quality and instil confidence in the mind of the Court. That apart, there were several contradictions and inconsistencies in the depositions of P.Ws.1 and 2, namely, mother of the victim girl and the victim girl herself. Moreover, there was no corroboration of the evidence of P.Ws.1 and 2 with the medical documents, as the Doctor (P.W.4) in her cross examination had clearly opined that there was no external injury in the body of the victim girl (P.W.2) and there is a possibility of hymen being torn due to sports activities and other factors. The Doctor further opined that the presence of mild vaginal discharge at the time of examination might be on account of menstrual cycle during ovulation period. He further submitted that in the absence of medical corroboration, there was no sexual assault on the victim girl by the appellant herein. He also submitted that as per the evidence tendered by the appellant himself as D.W.1, P.W.1, who is his second wife was in a compromising state with one Nilu Nath, who is the brother of her late husband Kamal Nath in the year 2012 and upon enquiry, both had confessed to have been in illegal relationship with each other for long time. Thus, it was Nilu Nath, who could have sexually abused the victim girl and P.W.1, in connivance with Nilu Nath falsely implicated the appellant in this case. He pointed out that that there was a delay of five days in lodging the complaint and there was no explanation forthcoming for the delay in lodging a complaint and therefore, the presence of the victim girl at the time incident with the appellant is highly doubtful, as she was in her home town in Assam at that time.