A Division Bench of Meghalaya High Court comprising of Chief Justice Sanjib Banerjee and Justice W. Diengdoh, on an appeal filed by the accused Swill Lhuid of POCSO Act, held that Penetrative sexual assault, for the purpose of the relevant provision, does not require deep or complete penetration. The slightest amount of penetration would suffice for the purpose. The medical examination report revealed penetration, albeit at the level of the introitus. Even though the hymen may have been intact so as to indicate that the extent of penetration may not have been to any great length, the factum of penetration was medically established."

Answering the question that mere failure to obtain or produce the FSL report would be fatal to the case made out by the prosecution, the court held that an 11 years old survivor made a statement under section 164 CRPC and her statement before the court after 4 years was very much corroborative whereas the statement of the accused under the investigation note and under section 313 CRPC were contradictory.

FIR of the incident was lodged by the mother of the survivor on 04.03.2018 claiming that the incident took place on 02.03.2018 for the rape of her seven and half years old daughter being raped by the appellant. Prior to the lodgment of the FIR, the girl child was taken to the district hospital on 033.03.018 by her mother, aunt, and another. It was contended in the FIR that a 10-year-old neighbor informed the complainant that he saw the girl near the jungle with the appellant. Upon being asked, her daughter told her that the man "Sexually assaulted her after luring her with Rs. 10/- and bought "Rum Rum".

The medical examiner recorded that her vegina has been penetrated by the appellant's penis and there was ejaculation on her private part. 

The appellant contended that he was not medically examined to ascertain if he was capable performing sex since he was 60 years of age at the relevant time. Medical examination of the girl was conducted after 24 hours of the incident and the opinion was tentative in the report.

Answering the issue of FSL report, the bench held that "There is no doubt that the material collected in course of the medical examination should have been tested and the forensic report presented at the time of the trial. But judicial notice has also to be taken of the inordinate time – sometimes running into years – taken by the forensic science laboratories or of reports not being collected in the tardy process of investigation that is conducted in this country. Oftentimes, because of the lack of sufficient personnel, the investigating agency is severely handicapped in the conduct of the several investigations simultaneously." 

The Trial Court convicted the accused for 15 years of Rigorous Imprisonment and a fine of Rs. 10,000/- under section 5(m) of the Protection of Children from Sexual Offences Act, 2012 which got confirmed by the High Court and appeal of the accused was dismissed.

Case Details:-

Crl.A.No.17/2022
Swill Lhuid   ...Appellant

Vs.

State of Meghalaya & ors   ...Respondents