SAI SUCHEN Vs. STATE OF MEGHALAYA

JUDGEMENT

(1.) The fact of the case is that an FIR dtd. 15/12/2021 was lodged by the complainant-cum-survivor before the Officer-in-Charge, Mukatapur Police Patrolling Party (Muktapur PPP) alleging that on 15/12/2021 at around 11AM the appellant Shri. Sai Suchen had attempted to rape her at her resident in Lumpyngngad village. The said FIR was received by the Muktapur PPP on 16/12/2021 vide GDE No.3. Thereafter the FIR was forwarded to the Dawki Police Station wherein it was received vide another GDE No.11 dtd. 16/12/2021 and a cognizable case being Dawki PS Case No. 31(12)2021 under Sec. 7/8 POCSO Act was registered against the appellant. Upon completion of the investigation, a charge-sheet vide Charge Sheet No.02/2022 dtd. 26/2/2022 under Sec. 7/8 POCSO Act was filed against the appellant. The charge against the appellant under Sec. 7/8 POCSO Act was framed by the Trail Court on 6/7/2022. In support of the charge, the prosecution examined 4 (four) witnesses and exhibited 5(five) documents and also a copy of the birth certificate as Paper Mark' 1. After the completion of the prosecution witness, the statement of the appellant under Sec. 313 Cr.P.C. was recoded on 16/2/2023. No defence evidence was adduced by the appellant. Thereafter the parties were finally heard and the impugned judgement and order of sentence was passed by the Trial Court.

(2.) Assailing the impugned judgement, the learned counsel for the petitioner submits that the survivor has made contradictory statements in her evidence before the Trial Court in as much in her statement under Sec. 164 Cr.P.C., she stated that the occurrence took place at the entrance of her grandmother's house, whereas in her evidence before the Trial Court, she stated that place of occurrence was at the entrance of her house. She also stated before the Trial Court that she did not tell about the incident to anyone and only informed to her mother after she returned back, whereas in her statement under Sec. 164 Cr.P.C., she stated that she had informed her grandmother. The learned counsel further submits that the conduct of the survivor post incident is very unnatural as can be derived from the evidence of PW1 and PW2 that she screamed for help and ran after the appellant with a dao but did not care to inform about the incident to her grandmother, cousins and aunt who were present near the place of occurrence. The learned counsel further submits that as per the evidence of the survivor, her younger sister was present at the time of the incident with her, but the prosecution has not cited the sister of the survivor as a witness in the case. He contends that the sister of the survivor was a material witness whose evidence was necessary for unfolding the truth of the prosecution case. The grandmother of the survivor was also an essential witness, but the prosecution failed to examine her in the case. The learned counsel strongly argues that the appellant is considerably prejudiced in his defence by reason of the aforesaid omissions on the part of the prosecution. The learned Counsel refers to the decisions of the Apex Court reported in (1953) 2 SCC 231, Habeeb Mohd. Vs. State of Hyderabad (Para ' 13), (1973) 1 SCC 490, Sahaj Ram and Others Vs. The State of U. P. (Para ' 12), (1973) 1 SCC 512, State of U. P. Vs. Iftikhar Khan and Others. (Para ' 22) to contend that the prosecution is duty bound to examine all material witnesses to the unfolding of the narratives on which the prosecution is based and failure on the part of the prosecution should result in drawing adverse inference against the prosecution. The learned Counsel submits that there is no corroboration of the statement of the survivor and the prosecution having failed miserably to discharge its duties in the present case, the conviction recorded against the appellant cannot be sustained in law and liable to be interfered by this Court.

(3.) The learned GA appearing for the State-respondents, on the other hand, submits that there is no major contradiction insofar as the evidence of the survivor and the prosecution witnesses are concerned. He submits that there may be some inconsistency which does not go to the root of the matter. He also submits that there remains no confusion with regard to the identity of the place of occurrence and the same stands clarified and established by Exhibit"3 and the deposition of PW3 and PW4. The learned GA contends that non-examination of the sister and grandmother of the survivor has not much bearing in the prosecution case as the occurrence of the incident stood established by the evidence of the survivor. He also submits that if according to the appellant, the non-examination of the sister and grandmother of the survivor has caused prejudice to the appellant, the defence could have filed an application for summoning them under Sec. 311 Cr.P.C. The learned GA further submits that conviction can be founded on the sole testimony of the victim of sexual offence and in the present case there is a statutory presumption with respect to the guilt of the appellant under the POCSO Act which the defence has failed to rebut. He submits that there is nothing on record to remotely suggest that the survivor had any grudge against the appellant and hence, her evidence cannot be termed as not trustworthy. The learned GA places reliance on the decisions of the Apex Court in (1983) 3 SCC 217, Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat (para 11) and (1996) 2 SCC 384, State of Punjab Vs.Gurmit Singh and Others (para 8) to impress upon the court that sole testimony of the prosecutrix is sufficient to convict a charged person accused of committing sexual offence.