Meghalaya High Court
Date Of Decision: 18.06.2025 vs The State Of Meghalaya on 18 June, 2025
Author: W. Diengdoh
Bench: W. Diengdoh
2025:MLHC:520
Serial No. 01
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG
Crl.A. No. 15 of 2023
Date of Decision: 18.06.2025
Shri Phidalis Lamare,
Aged about 27 years
S/o Shri Shanter Langstang,
R/o Thadsning Village,
West Jaintia Hills District, Meghalaya
.....Appellant
- Versus-
The State of Meghalaya
Represented by the Public Prosecutor
......Respondent
Coram:
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. S. Deb, Adv.
For the Respondent(s) : Mr. K. Khan, P.P
Mr. S. Sengupta, Addl. P.P
Mr. A.H. Kharwanlang, Addl. P.P
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
JUDGMENT
1. This appeal is preferred against the Judgment and Order of
conviction dated 24.04.2023 and the order of sentencing dated 24.04.2023
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by the Ld. Sessions Judge, Khliehriat in Sessions Case No. 6 of 2020
wherein the Ld. Trial Court convicted the accused/appellant under Section
376 IPC and sentenced him to undergo 7(seven) years rigorous
imprisonment and a fine of ₹ 5000/- (Rupees Five Thousand) only and in
default to undergo 1(one) month simple imprisonment.
2. The factual matrix of the case is that on the 30.01.2017 an FIR was
lodged before the Officer-in-Charge, Khliehriat Police Station by the
victim-cum-complainant against the accused/appellant person alleging
that on the 29.01.2017 the accused person had sexually assaulted the
victim at her residence at Lad Sutnga.
3. FIR was registered as Khliehriat P.S. Case No. 30(01) of 2017 under
Section 376 IPC, an Investigating Officer (IO) was assigned to the case,
and the IO started the investigation and arrested the accused person on the
30.01.2017. During the initial stage of investigation, the IO recorded the
statement of the victim under Section 161 Cr.P.C. Thereafter, the
statement of the victim and the accused/appellant was also recorded under
Section 164 Cr.P.C by a Magistrate. Medical examination of both the
victim and the accused was also conducted by the doctor at Khiehriat CHC,
the biological samples were collected and the clothes of the victim were
seized and sent for FSL.
4. On completion of the investigation the IO submitted the charge
sheet vide C.S. No. 91 dated 12.09.2017 after taking all the necessary steps
for investigation with the opinion that a prima facie case is found well-
established against the accused/appellant who is said to have committed
an offence under Section 376 IPC.
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5. The Ld. Sessions Judge took cognizance of the said offence and
framed the charge against the accused/appellant under Section 376 IPC
and trial against him proceeded. 5(five) prosecution witnesses were
examined and material exhibits including the medical report were
produced before the Trial Court.
6. The Ld. Sessions Judge on conclusion of the recording of evidence
of the prosecution’s witnesses then recorded the statement of the
accused/appellant under Section 313 Cr.P.C and on the accused/appellant
calling 2(two) witnesses on his part, who were examined as DW-1 and
DW-2 respectively, on conclusion thereof, argument of the parties was
heard. On consideration of all the relevant evidence, the impugned
judgment and order was therefore passed.
7. Mr. S. Deb, learned counsel for the appellant has maintained that
the impugned judgment and order of sentence cannot be sustained as from
the evidence and the materials on record, including the medical report
based on the medical examination of the appellant and the victim, the same
would indicate that the entire episode was not an act of rape or sexual
assault upon the victim, but was actually an act of mutual consensual sex.
8. It is not denied that the victim and the appellant are known to each
other since from the evidence of the victim as PW-1, she has admitted that
the appellant used to come to her teashop for tea, submits the learned
counsel.
9. To solidify his contention that what happened was consensual
sex, the learned counsel has referred to the medical report which was
exhibited in court to say that the record of injuries present in both the
victim and the appellant would point to the fact that there was consensual
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sexual pleasure in the act of the parties and the victim’s testimony that she
was pulled and strangulated by the appellant cannot be proved in absence
of injuries like bruises and ligature marks on her body. Even the evidence
of the PW-2 who was the Doctor who has examined the victim and the
appellant, in deposition before the trial court has opined that “It is a fact
that the injury, bleeding, tenderness and tear at the fourchette could be
due to forceful pleasure.”
10. The learned counsel has further submitted that from the statement
of the accused/appellant made under Section 164 Cr.P.C as well as from
his response to the court’s questions put to him under Section 313 Cr.P.C,
he has been consistent to clarify that the incident was not a case of rape
but one of consent between the parties.
11. On lack of corroboration, the learned counsel has submitted that
PW-1 (victim) in her deposition before the court has stated that after the
act was done, she had called her husband over the phone who called one
Kleh from Thadsning village and Shri Kleh then came to the house and
asked the appellant why he was doing such a shameful act. After that the
accused/appellant left the house and Kleh also left at about 12.00 am.
However, this person, that is, Kleh was never brought to the witness box
to give his version of the story and if he had done so, it would probably
negate the prosecution’s case.
12. Again, the learned counsel has submitted that the fact that
the accused/appellant was drinking alcohol on the day of the incident after
which the victim had seduced him can be ascertained from the statement
made by the appellant before the concerned Magistrate under Section 164
Cr.P.C. This Magistrate in his deposition in court as PW-4 has also
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categorically stated that “The accused confessed that he had taken alcohol
in her shop to which later she took him to her house and she tried to seduce
him and when he tried to make love with her and she refused to do so, so
he left the house and went back to the truck and slept there.” The said
statement was also exhibited by PW-4 as P Exhibit 7.
13. Even the IO in her deposition before the court as PW-5, on being
cross-examined has admitted that “It is a fact that the accused was falsely
implicated in this case due to the refusal of the inducement being done by
complainant.” As such, the denial of the victim in her deposition before
the court that there was no consent or seduction by her in view of the
contradictory evidence in this regard would cast some doubt on the
prosecution’s story.
14. In this regard the learned counsel has submitted that it may be
pointed out from the statement of the victim (PW-1) that there are a
number of contradictions and unanswered questions which cannot be
proved by the prosecution, for example, when she had stated that after the
incident the appellant had given her ₹ 1000/- which money she returned to
his father and also that the father was the first person she had reported
about the incident, when actually she had also deposed that after the
appellant finished to commit the offence she had called her husband
through phone to inform him about the incident. The case of Abbas Ahmad
Choudhary v. State of Assam, (2010) 12 SCC 115 as well as the case of
Rajoo & Ors. v. State of M. P., AIR 2009 SC 858 was relied upon by the
appellant as far as the quality and character of the victim’s testimony is
concerned.
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15. The learned counsel has submitted that as pointed out, the
prosecution has failed to cite the father of the appellant and also her
husband as witnesses in the case, as such, the case of the prosecution on
this score stands weakened. Therefore, the process of investigation has
completely broken down which has severely prejudiced the appellant in so
far as material witnesses were never examined. In this connection, the case
of Takhaji Hiraji v. Thakore Kubersing Chamansing & Ors., (2001) 6 SCC
145, para 16, 17 and 18 was relied upon by the appellant.
16. The learned counsel has also reiterated that the explanation given
by the appellant/accused under Section 313 Cr.P.C have not been
considered by the learned Trial Judge and this too, has caused prejudice to
the case of the appellant. In this regard, the case of Punjabroa v. State of
Maharashtra, (2002) 10 SCC 371 as well as the case of Ajay Singh v. State
of Maharashtra, (2007) 12 SCC 341, para 12, 14, 19 and 22 was cited to
support this contention.
17. Finally, the learned counsel has submitted that from the
comprehensive appreciation of the evidence on record, the guilt of the
accused/appellant cannot be proved beyond reasonable doubt and the
appellant cannot be convicted on the principles of preponderance of
probability, as such, the impugned judgment and sentence is liable to be
set aside and quashed and the appellant/accused be acquitted and set at
liberty.
18. Mr. K. Khan, learned P.P in his submission has defended the
impugned judgment and sentence saying that there is no infirmity found
therein as the prosecution has proved its case beyond reasonable doubt on
the basis of the statement of the victim, the medical evidence and even
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from the corroboration found in the statement made under Section 164
Cr.P.C of both the victim and accused/appellant. The allegation of the
appellant that whatever happened was one of a consensual act, more so,
that the victim had seduced him into having sex, this has been refuted by
the victim in her deposition before the Trial Court in no uncertain terms.
19. It is the submission of the learned P.P that it is a fact that the
learned Trial Judge in the impugned judgment has ignored the statement
of the accused/appellant made under Section 164 Cr.P.C when at para 39
of the said judgment, the learned Trial Judge had chosen to ignore the
contents and purport of the statement of the accused/appellant made under
Section 165(5) Cr.P.C on the ground that the same was taken on oath and
has thus violated the provisions of Article 20(3) of the Constitution.
However, the learned P.P has submitted that this aspect of the matter has
been decided by this Court in the case of Demansing Kynter v. State of
Meghalaya reported in 2022 SCC Online Meg 217 at para 14 wherein this
Court has observed as follows:
“14. In the context of Section 164 of the Code, the mandate
therein is to scrupulously follow the safeguards to ensure that the
confession is voluntarily made. The safeguards indicated in the
provision are the substantive content of the law laid down therein
and the exemption of the maker of a confessional statement from
being administered oath is merely procedural so that any part of
the confession, if subsequently discovered to be false, leaves him
immune to prosecution for perjury. If the statutory safeguards as
enumerated in Section 164 of the Code are followed while
recording a confessional statement, the mere fact that oath may
have been administered to the maker of the statement would not
vitiate the same or rob the confession of its evidentiary value.
However, the immunity against perjury would still be in place
despite the confessional statement being obtained under oath.”
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20. This being the case, this Court can reverse the said finding and
take into cognizance the statement made by the accused/appellant under
Section 164 which would corroborate the testimony of the victim
inasmuch as he has admitted that after having consumed alcohol with his
two friends at the shop of the victim, when he asked for some more alcohol
and she said that there is no more in the shop he followed to her house and
there, he had one or two pegs of alcohol after which he claimed that she
started seducing him and since she showed no resistance he tried to have
sex with her and on being rebuked by her, he stopped and sat on her bed.
She then scratched his chest and bite around his shoulder and in return he
bit her back around her stomach. Thereafter she called her husband and
told him that he had raped her. This, accordingly to the learned P.P is a
corroboration of whatever has been stated by the victim in her deposition
in court except for the fact that she had categorically stated that the said
act was not consensual and that it is not a fact that she had seduced him.
21. To further solidify this contention, the learned P.P has led this
Court to the provision of Section 80 of the Evidence Act, 1872 which
speaks of any document produced before any Court be it a statement or
confession by any prisoner or accused person, taken in accordance with
law, and purporting to be signed by any Judge or Magistrate, the Court
shall presume that the document is genuine; that any statements as to the
circumstances under which it was taken purporting to be made by the
person signing it, are true, and that such evidence, statement or confession
was duly taken. In this case, the said statement of the accused/appellant
made under Section 164 having been brought into evidence by the PW-4
the same would corroborate the statement made by the victim and can be
accepted as the truth.
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22. The learned P.P went on to submit that the fact that the appellant
and the victim had engaged in sexual intercourse cannot be denied. As to
the assertion of the appellant that it was consensual, such assertion was
refuted by the victim when in her cross-examination she has stated that “It
is not a fact that I seduce the accused person.” and further “I did not
consent with the accused person.” This according to the learned P.P would
put the case to rest as far as the guilt of the appellant is concerned, as such
the impugned judgment and sentence may not be disturbed by this
appellate court.
23. This Court on consideration of the contention and submission of
the learned counsels for the parties is made to understand that the
accused/appellant was convicted for an offence under Section 376 of the
India Penal Code and was sentenced to undergo rigorous of 7(seven) years
with fine of ₹ 5000/- (Rupees Five Thousand) only, in default thereof, to
undergo further imprisonment of 1(one) month.
24. The impugned judgment as well as the evidence on record
including the materials found therein was also scrutinised by this Court to
get to the root of the matter. Basic facts not being controverted, the version
of the victim as to what actually transpired on the day of the incident is
contrary to what the appellant would assert inasmuch as both the victim
and the appellant did not deny that they had sexual intercourse, however,
the victim asserts that it was rape whereas the appellant reiterated that it
was consensual in nature.
25. This Court would also seek to find substance to the rival
contentions of the victim and the accused/appellant by sifting through the
evidence and the materials on record. It is a fact that the victim in her
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deposition on being cross-examined has denied that the said sexual act was
consensual, but had insisted that it was the accused/appellant who had
forcefully sexually assaulted her, therefore, the core issue to be decided
herein is whether such act of sexual intercourse between the two was
consensual or not. The learned counsel for the appellant has sought to cast
doubt on the testimony of the victim by asserting that her evidence is not
strong enough to procure the result it had, that is, the conviction of the
appellant.
26. Before proceeding further, it would be relevant to discuss the
objection raised by the learned counsel for the appellant, firstly, that the
statement of the appellant under Section 164 as well as that made under
Section 313 while answering the query of the court qua the incriminating
evidence found against him from the records was not taken into account,
which would sustain his assertion that the version of the victim as to what
happened on the day of the incident was not entirely true.
27. It is well settled that the statement under Section 164 can be used
for corroboration of the evidence of a witness, or to contradict a witness.
It is the insistence of the appellant that in his 164 statement he had given
his side of the story to say that while he was drinking alcohol and had
followed the victim to her house to get some more alcohol, it was then that
she had seduced him. This statement was also repeated by him when he
was confronted by the Trial Judge to explain the incriminating
circumstances found in the evidence against him.
28. As to why the learned Trial Judge had not taken into account the
statement of the appellant made under Section 164, as has been submitted
by the learned P.P, the issue is now settled by reference to the case of
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Dimansing Kynter (supra). In this context, even if the statement of the
appellant is taken into consideration, on perusal of the deposition made by
the victim as PW-1, it would appear that in her cross-examination, she was
confronted by questions and suggestions to make her commit or to reveal
the truth that the whole incident was one of a consensual act. But in many
places of the cross-examination, she had maintained that she had not
invited the accused/appellant to her house, that she had not undressed
herself but the accused/appellant had undressed himself, that she had not
given her consent to the accused and more particularly at para 17 she had
said “It is not a fact that I seduce the accused person.”
29. In the light of what the victim has stated, there being no effective
evidence by the appellant as even on perusal of the evidence produced by
him through DW-1 and DW-2, nothing can be proved that there was
consensual sex between the two.
30. As to whether the evidence of the victim if properly weigh can
be considered as one of sterling quality, what is sterling quality as far as
evidence of a witness is concerned has to be examined. There are a number
of authorities on this, one of such being cited herein, that is, the case of
Naresh alias Nehru v. State of Haryana reported in (2023) 10 SCC 134 at
para 16 which is quoted herein below as:
“16. As noticed hereinabove, the evidence of the eyewitness
should be of very sterling quality and calibre and it should not
only instil confidence in the court to accept the same but it should
also be a version of such nature that can be accepted at its face
value. This Court in the case of Rai Sandeep v. State (NCT of
Delhi) [(2012) 8 SCC 21] has held: (SCC p. 29, para 22)
“22. In our considered opinion, the “sterling witness”
should be of very high quality and calibre whose version
should, therefore, be unassailable. The court considering
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the version of such witness should be in a position to accept
it for its face value without any hesitation. To test the
quality of such a witness, the status of the witness would
be immaterial and what would be relevant is the
truthfulness of the statement made by such a witness. What
would be more relevant would be the consistency of the
statement right from the starting point till the end, namely,
at the time when the witness makes the initial statement and
ultimately before the court. It should be natural and
consistent with the case of the prosecution qua the accused.
There should not be any prevarication in the version of such
a witness. The witness should be in a position to withstand
the cross-examination of any length and howsoever
strenuous it may be and under no circumstance should give
room for any doubt as to the factum of the occurrence, the
persons involved, as well as the sequence of it. Such a
version should have co-relation with each and every one of
other supporting material such as the recoveries made, the
weapons used, the manner of offence committed, the
scientific evidence and the expert opinion. The said version
should consistently match with the version of every other
witness. It can even be stated that it should be akin to the
test applied in the case of circumstantial evidence where
there should not be any missing link in the chain of
circumstances to hold the accused guilty of the offence
alleged against him. Only if the version of such a witness
qualifies the above test as well as all other such similar tests
to be applied, can it be held that such a witness can be
called as a “sterling witness” whose version can be
accepted by the court without any corroboration and based
on which the guilty can be punished. To be more precise,
the version of the said witness on the core spectrum of the
crime should remain intact while all other attendant
materials, namely, oral, documentary and material objects
should match the said version in material particulars in
order to enable the court trying the offence to rely on the
core version to sieve the other supporting materials for
holding the offender guilty of the charge alleged.”
31. This Court is convinced that the evidence of the victim is reliable
and believable since no one would deny an act done with consent (taking
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into account the suggestion that there was filial relationship between the
appellant and the victim), if the same is true. However, since the victim
has vehemently denied such consent, therefore the contrary has to be the
reason.
32. The objection raised by the appellant as to why some of the
alleged vital witnesses have not been examined, again, it is well settled
that it is for the Investigating Officer to cite witnesses in support of the
prosecution case when the charge sheet is filed. If certain witnesses have
not been cited, the court or the defence has the opportunity to have any
such witnesses produced in course of trial. This is provided in Section 311
of the Code of Criminal Procedure. This process was not resorted to by the
defence or by the appellant in course of trial. Be that as it may, in view of
the finding of the learned Trial Judge and this Court as far as the quality
of evidence is concerned, which evidence has gone in favour of the
prosecution even if such witnesses, for example, Shri Kleh, the husband of
the victim or the father of the appellant are produced before the witness
box, it would not improve the case of the appellant. The authorities cited
by the learned counsel for the appellant in this regard would not come to
his rescue.
33. The only defence of the appellant that the said sexual act was
consensual in nature is because of the presence of certain injuries on the
person of the victim as well as on him as has been medically determined.
These injuries include bite and scratch marks, which according to the
appellant would only indicate that there was pleasurable sex between the
two of them. However, it cannot be contemplated that every act of
consensual sex has to be accompanied by such kind of injuries. On the
other hand, the victim has stated that it was the accused who had bit the
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upper parts of her body and hands and he has also tried to strangulate her
while threatening her that if she shouts, he will insert his male organ inside
her mouth. There being no contradiction to this piece of evidence, the
contention of the appellant in this regard cannot be accepted at this point
of time. It is not a case where the victim has not been able to explain how
she has sustained her injuries.
34. In view of the observations and findings made hereinabove, this
Court can only come to the conclusion that the judgment and sentence
passed against the appellant by the learned Trial Judge has to be sustained,
with the modification made herein.
35. The authorities cited by the appellant, not specifically discussed
would be considered not relevant to the particular facts and circumstances
of this case.
36. In the final analysis, this appeal is hereby dismissed as devoid of
merits and is accordingly disposed of with no costs.
37. Let the Trial Court records be sent back.
Judge
Signature Not Verified
Digitally signed by
TIPRILYNTI KHARKONGOR
Date: 2025.06.18 15:33:27 IST 14