Victim's Expression "Came On Top Of Me" Must Be Construed As 'Penetrative Sexual Assault' Under POCSO Act: Meghalaya High Court

"The later statement of the victim recorded in course of her deposition at the trial must be seen in the milieu of how a woman in this country, particularly a girl child, would be intimidated in the foreign and suffocating atmosphere of a court and in the presence of rank strangers to describe how she had been violated. The expression, "came on top of me" must be seen to be a euphemism for the offender having violated her in the sense of having committed penetrative sexual assault."

Facts of the Case:

According to the statement of the victim made under Section 164 of the Code, on the relevant day, she was asked by her mother to buy kwai (betel nut), whereupon she went to the market and bought kwai. While returning home, a man (appellant herein) who was sitting on the road called out to her. The victim claimed that she recognised the face of the man and answered his call as she perceived that he also wanted betel nut.

The victim went near the man. He asked her to enter a shop where he made her lie down on a bed, removed her panties while the man also took off his trousers and underpants. Thereafter, he took out his penis and inserted it inside the private parts of the victim. The girl said that she was in pain and even after substantial passage of time, she still felt some pain. The victim narrated that she felt scared as the offender had threatened to kill her if she let anyone know about the matter. She recalled that after some time she told her cousin about the incident.

The trial court referred to the oral evidence in great detail and dwelt on the principal plank of the defence argument that it was a case of mere sexual assault without any penetration. It took note how the victim described the incident in her statement recorded under Section 164 of the Code and the simple and categorical admission of the appellant in his statement voluntarily made under Section 164 of the Cr.P.C.

Contentions:

Dr. N. Mozika, Legal Aid Counsel on behalf of the appellant, submitted that the above version of the victim was not maintained by her in course of her oral evidence at the trial. Further, he refers to the deposition of the cousin of the victim. According to such cousin, the victim told her that a man once called her into a shop and then asked her to open her underwear. She also expressed that the victim informed her that upon the victim not doing so, the offender opened her underwear by himself and he also took off his trousers and underwear "and then went on top of her."

Hence, he suggested that in the light of both the victim and the person in whom the victim first confided indicating that the appellant only came on top of the victim and no more, it may be a case of 'sexual assault' under Section 7 of the POCSO Act and attracting a punishment of not more than five years, together with fine, under Section 8 of the Act.

He also pointed out that the medical examiner, who examined the victim shortly after the complaint was lodged, reported that he found the victim's hymen torn and perceived that the victim could have had sexual intercourse. However, the doctor did not find any sign of injury and in his cross-examination, he accepted that it was possible for the hymen to be torn other than as a result of sexual intercourse.

He was critical of the manner in which the questions were put to the appellant in course of the court summarising the oral evidence adduced under Section 313 of the Code. He submitted that the appellant's response to the second and sixth questions at such stage must be seen in the backdrop of the questions put to him and not as any 'independent admission' on the appellant's part of having committed rape or indulged in penetrative sexual assault on the victim. In this way, the appellant sought to explain away as clear a statement as attributed to him and recorded under Section 164 of the Code that "I raped her."

Observations and Decision of the Court:

At the time that the appellant gave his statement under Section 164 of the Code, he was more than 25 years old. When no objection as to such recording was taken in course of the trial and it was accepted by the appellant that his statement amounted to the appellant having said that he had raped the victim, the connotation of "rape" would be seen to be understood by the appellant at the time of making the admission.

The Court further stressed that the minor victim, then aged about nine years, clearly and categorically described the incident in course of her statement recorded under Section 164 of the Code and, there could not have been a more lucid description of penetrative sexual assault than as narrated by her. It observed,

"The situation may be better understood in the context of how a girl child in this country grows up by being made ashamed of her body and being accused of not keeping her body to herself even if she is subjected to an undesirably aggressive touch by a man. In the strange atmosphere of a court room, the girl child may have been inhibited in being more explicit than she was in course of her one-on-one with the lady magistrate before whom she recorded her statement under Section 164 of the Code."

In view of the unambiguous admission of the appellant that he had raped the victim and, in particular, his answers to the second and sixth questions at the stage of being examined under Section 313 of the Code, the Court held that there is little room for doubt as to the nature of the offence committed by the appellant.

It further affirmed that the trial court has appropriately inferred that there was an assertion of penetrative sexual assault by the victim and an independent admission of the commission of the offence of rape by the accused before the trial court and duly arrived at the reasoned finding that the case of penetrative sexual assault had been made out and proved beyond reasonable doubt against the appellant herein. Accordingly, the appeal was dismissed.

Case Title: Morningstar Nongsiej v. State of Meghalaya

Case No.: Crl.A. No. 29 of 2019

Judgment Dated: 30 March 2022

Coram: Chief Justice Sanjib Banerjee and Justice W. Diengdoh

Judgment Authored By: Chief Justice Sanjib Banerjee

Counsel for the Appellant: Dr. N. Mozika, Legal Aid Counsel with Ms. L. Jana, Adv.

Counsel for the Respondent: Mr. S. Sengupta, Addl. PP

Citation: 2022 LiveLaw (Meg) 12