Shillong, May 19: The Meghalaya High Court affirmed the conviction of Rishan Marwein for raping his minor sister-in-law.
The court dismissed his appeal against a 20-year sentence awarded by the Special POCSO Court in Nongstoin.
The division bench comprising Chief Justice Revati Mohite Dere and Justice W Diengdoh, order passed on May 18, said no interference was warranted with the September 22, 2023 order of the Special Judge (POCSO), West Khasi Hills District, which had found Marwein guilty under Section 6 of the POCSO Act, 2012.
He was sentenced to the statutory minimum of 20 years imprisonment and fined Rs 30,000, with three months simple imprisonment in default.
The trial court had also recommended Rs 1,00,000 compensation to the survivor through the Meghalaya State Legal Services Authority.
The case pertains to two incidents in October 2020.
The prosecution said Marwein, who is married to the survivor’s elder sister and has two children, picked up the 16-year-old from school on October 12, 2020, took her to Aroma Restaurant in Nongstoin, and sexually assaulted her in the toilet. He allegedly assaulted her again on October 17, 2020, at his home when his wife was not present
The survivor disclosed the incidents to her parents on October 18, 2020, following which her sister, PW1, filed an FIR at Nongstoin Police Station on October 20, 2020.
During trial, the survivor, PW2, testified that after lunch at the restaurant, Marwein “grabbed her hand and pulled her inside the toilet, kissed her, undressed her, undressed himself and committed penetrative sexual assault on her.”
She said the second incident took place at her sister’s house when she was called there alone. When she told him she did not want to continue the physical relationship, he “took a blade and threatened to cut himself, to death, if she left him.” Her date of birth, as per the birth certificate produced by her father PW3, was 16.03.2004.
Medical Officer Dr Diamond Marwein, PW4, who examined her on October 20, 2020, deposed that her hymen was found not intact.
Senior Counsel H.L. Shangreiso, appearing for Marwein, argued that the relationship was consensual and relied on two Supreme Court decisions to contend it was not a case of sexual assault.
Government Advocate R Gurung countered that consent was immaterial since the survivor was 16, and said Marwein had “misused and abused his relationship” with his sister-in-law. He also pointed out that the appellant failed to discharge the presumption under Section 29 of the POCSO Act.
The High Court held that “under the POCSO Act, consent given by a child below the age of 18 years is irrelevant and immaterial” and found the judgments cited by the appellant “clearly distinguishable.”
The bench observed that Marwein had “completely abused the sanctity of the relationship between him and the survivor, who was his sister-in-law, aged 16 years and despite being a family man with two children, had taken advantage of the survivor and abused the relationship of trust.”
It noted there was “no challenge as to the date of birth of the survivor” and that in his statement under Section 313 Cr.P.C., the appellant denied both sexual assault and a consensual relationship.
“Considering the aforesaid evidence on record and the fact, that the appellant (brother-in-law of the survivor) had abused the relationship of trust between him and the survivor, who is his sister-in-law, aged 16 years and had taken advantage of the survivor’s young age, no interference is warranted in the impugned judgment and order,” the Court said while dismissing the appeal.
The bench directed the Secretary, District Legal Services Authority, West Khasi Hills, to file a report within six weeks on whether the Rs 1,00,000 compensation has been disbursed to the survivor.
The matter will be taken up for compliance on June 18.
