Meghalaya High Court: In a criminal appeal challenging the order of conviction by the Trial Court, the Division Judge Bench of Sanjib Banerjee*, C.J. and W. Diengdoh, J., dismissed the appeal and upheld the order of conviction by the Trial Court. under Section 376(2)(i) and (n) of Penal Code, 1860 (“IPC”) along with Section 5 of Protection of Children from Sexual Offences Act, 2012 (“POCSO”), and sentenced Julius Dorphang (‘Julius’) to 25 years of rigorous imprisonment with fine of Rs. 15 lakhs. In the matter at hand, the victim, about 14 years of age at the time of incident left her home due to the parlous state of her home. An elderly lady lured her to leave home and brought her to Shillong and made her live with a Muslim family. During her stay with the family, she had her first menstrual periods and thereafter, she was taken by her foster parents to a guesthouse wherein she was intoxicated before her first forceful sexual encounter. The victim was taken to another hotel wherein Julis raped her for the second time. Later, the victim left her foster parents’ home and with the help of two acquaintances she was put in touch with the State Child Welfare Committee Officials. The Trial Court convicted Julius under Section 376(2)(i) and (n) of IPC along with Section 5 of POCSO and was sentenced to 25 years of rigorous imprisonment with fine of Rs. 15 lakhs.
Aggrieved by the conviction of the Trial Court, Julius appealed before the High Court and challenged the sentence.
Issues:
1. Whether minority of the victim was established in course of the trial?
The Court said a mini trial of sorts, within the proceedings, was conducted by the Sessions Court to ascertain the age of the victim. It was consistent assertion of the victim in her statements that she was below 15 years at the time of incident. Further, the victim’s father established that her age was about 15 years in 2018. The dental surgeon was called in by the Sessions Court to assess the age of the victim, and the examination of her dental structure established her age to be below 16 years when the test was conducted in December 2016. Thus, the Court noted that the age of the victim was approximately 16 years of age or below at the time of incident.
2. Whether the two FIRs lodged against the convict should have been seen as part of a solitary case and dealt with accordingly based on the first FIR?
The Court said that it might be possible that when two similar acts are complained of against the same person, they may be taken up for consideration in the same trial. However, when two separate offences are shown to have been committed in different points of time and at different places, there is no law to prevent different complaints in such regard being filed and such complaints being pursued separately in accordance with law, irrespective of how similar the nature of the offences alleged may have been. The Court noted that it is true that the Trial court did investigate some records pertaining to the first FIR but the conviction in the present matter was solely confined only to the FIR of the second incident.
3. Whether the Trial Court failed to give opportunity to Julius under Section 313 of Code of Criminal Procedure, 1973 (CrPC”)?
The Court stated that the Trial Court allowed the defence to cross-examine all the witnesses called in the Court at the late stage of the trial. It was established that the defence itself declined to cross-examine the relevant witness. There is no doubt that the Trial Court had adequate authority under Section 311 of CrPC to seek further evidence on any aspect that the Trial Court deemed necessary to arrive at a just decision. As long as such exercise was conducted upon notice to Julius and the witnesses called were presented to Julius for cross-examination, Julius cannot complain of having suffered any prejudice during the trial.
Therefore, the Court considered that a thorough examination under Section 313 of CrPC had been previously concluded, the fact that the defence lawyer was afforded a chance to cross-examine the further witnesses called but was not presented a second opportunity under Section 313 of CrPC would not vitiate the conviction or the course of action adopted by the trial court.
4. Whether the various statements of the victim suffer from apparent inconsistencies?
The Court said that the victim who was about 16 or 17 at the most when she was recounting the trauma that she had to live through when she was barely 15. Indeed, there was a remarkable untutored consistency in how she detailed what had happened on the relevant night of the second incident, how she was dragged from the bed to the carpet to another bed and even illtreated the morning after. The Court pointed that the victim made two statements before the Child Welfare Committee officials, both the statements were made on different dates but were highly consistent with the detailed recollection of her trauma that she rendered in course of her testimony at the trial. The Court considered the victim’s statement to be extremely believable and said that it did not suffer from any inconsistencies.
5. Is the quantum of sentence given to the convict appropriate?
The Court said that Julius has been appropriately convicted under Section 5 of POCSO and justly convicted and punished under Section 376(2) of IPC, both for committing rape on a woman below 16 years of age and for committing rape repeatedly on the same woman. The punishment awarded under Section 376(2) of IPC is as per the principle embodied in Section 71 of IPC.
Further, the Court mentioned that indeed, the two independent limbs of Section 5 of POCSO were applicable in the present case:
— the first for the position that he occupied at the time of the commission of the offence;
— and the second for his conduct which was established beyond reasonable doubt at the trial.
The Court noticed that the evidence conclusively revealed that Julius had committed penetrative sexual assault on the victim more than once or repeatedly on the night of second incident thus, Section 5(l) of POCSO would come into play for the offence to be regarded as aggravated penetrative sexual assault. Thus, the Court said that there was no glaring infirmity in the judgment of the conviction pronounced by the Trial Court.
Therefore, the criminal appeal was dismissed. The State was ordered to ensure the well-being of the victim till she reaches the age of 25 and compensation of Rs. 20 lakhs to be paid by the State by way of investments that would mature on a periodic basis.
[Julius Kitbok Dorphang v. State of Meghalaya, 2023 SCC OnLine Megh 161, decided on 05-04-2023]
*Judgment authored by: Chief Justice Sanjib Banerjee.
Advocates who appeared in this case :
For the Appellant: Advocate K. Ch. Gautam;
Advocate C.B. Sawian;
For the Respondents: Assitant Advocate General N.D. Chullai;
Additional Public Prosecutor S. Sengupta;
General Advocate A.H. Kharwanlang.
