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2010 DIGILAW 908 (GAU)

Watseng Marak v. State of Meghalaya

2010-12-03

ANIMA HAZARIKA

body2010
JUDGMENT Anima Hazarika, J. 1. Invoking power under Rule 22 of the Rules for Administration of Justice and Police in Garo Hills District, 1937, three Appellants in the two appeals have questioned the legality and validity of the judgment of conviction and sentence dated 12.02.10 passed in Case No. S/C No. 7 of 2004 by the learned Ad-hoc Judge, Fast Track Court, West Garo Hills, Tura sentencing the Appellants to undergo 5 (five) years Rigorous Imprisonment ('RJ' for short) and fine of Rs. 5,000/- with a default stipulation under Section 376(2)(g) of the Indian Penal Code ('IPC' for short). These two appeals therefore heard together and being disposed of by this common judgment. 2. Keeping in mind the provisions of Section 228A of the IPC, this Court is refrained from disclosing the identity of the victim against whom an offence under Section 376 IPC is found to have been committed and hence, this Court has chosen to describe her as victim in these appeals. 3. Heard Mr. R. Kar, learned Counsel for the Appellants. Also heard Mr. H. Kharmih, learned Addl. Public Prosecutor, Meghalaya. 4. Background facts as projected by the prosecution in a nutshell is as follows: The mother of the victim girl lodged the First Information Report ('FIR' for short) on 1.10.02 with the Officer-in-Charge('O/C' for short) Chanmari Beat House contending inter alia that on 29.9.02, at about 10 a.m., her daughter went to the Church but she did not come back home and on the next day, i.e. 30.9.02 at 6 p.m., the victim girl came to the rented house of one Phillarson Sangma situated at Lower Wadanang and became unconscious. Later on, it came to light that the victim was gang raped by some unknown miscreants. On receipt of the FIR, police registered a case being Tura PS Case No. 85(10)09/02 corresponding to GR Case No. 157/02 under Section 376/34 IPC. 5. During investigation by the police, it has come to light that on 29.9.02 at about 7.30 p.m. the victim was raped by the accused persons viz. Sri Watseng R Marak, Sri. Walseng M. Momin and Sri Tengsang M. Sangma @ Novino M. Sangma at Hawakhana School and on that day, they dropped the victim near the Donbosco School by an auto and accordingly, the victim girl was proceeding towards house on foot. Sri Watseng R Marak, Sri. Walseng M. Momin and Sri Tengsang M. Sangma @ Novino M. Sangma at Hawakhana School and on that day, they dropped the victim near the Donbosco School by an auto and accordingly, the victim girl was proceeding towards house on foot. As soon as she reached near the Wadanang Graveyard, one red colour Maruti Van came behind and picked up her towards Edenbari side. On arrival there, the victim was raped by the abovenamed accused persons along with their friends whom she did not know by name and face. On 30.9.02, at about 6 p.m., they dropped the victim girl near the house of one Phillarson Sangma of Lower Wadanang in an unconscious state. 6. The police recorded the statements of the victim girl and on the basis of the statements the accused persons were arrested. The police also recorded the statements of the witnesses and sent the victim girl for medical examination, Test Identification Parade ('TIP' for short) was held on 21.10.02. The accused persons were also sent for medical examination. Two witnesses viz. Ms. Ringchi N. Marak and Melonini Ch. Marak were sent to the Magistrate for recording their confessional statements and on completion of the investigation, police submitted charge sheet under Sections 376/34 IPC against all the three accused persons. However, they pleaded not guilty and hence stand for trial. 7. The prosecution has examined nine witnesses in all to prove the guilt of the heinous crime committed by the accused persons to satisfy their lust. The mother of the victim girl was examined as PW 1 who had filed the FIR vide Ext-1 wherein her signature is Ext-1(1), deposed that on coming to know that her daughter is in the house of Phillarson Sangma at Lower Wadanang she went there and saw her daughter lying in unconscious state. PW1 alongwith her brothers brought the victim to Wadanang Beat House and therefrom she was brought to the Civil Hospital. The victim girl was hospitalized under the care of Dr. M. H. Sangma. PW 1 put her signature on the seizure list vide Ext-2 and her signature is Ext-2(1). 8. The victim girl was examined as PW 2. PW1 alongwith her brothers brought the victim to Wadanang Beat House and therefrom she was brought to the Civil Hospital. The victim girl was hospitalized under the care of Dr. M. H. Sangma. PW 1 put her signature on the seizure list vide Ext-2 and her signature is Ext-2(1). 8. The victim girl was examined as PW 2. The statement of PW 2 was recorded under Section 164of the Code of Criminal Procedure ('Code' for short) before the Magistrate, wherein she has categorically disclosed the name of the accused Appellants herein who raped her. She has further deposed that though she did not know the accused persons from before but the accused persons were known to Smti. Ringchi N. Marak and Smti. Melonini Ch. Marak. PW 2, the victim girl was brought to the District Jail, Tura during the TIP held on 21.10.02 at about 11.30 p.m. wherein 15 (fifteen) persons were allowed to stand in a line alongwith three accused Appellants. In the said TIP, Smti. M.T. Sangma, the Magistrate, Sri. D.N. Goswami, Superintendent, District Jail, Tura and Sri A.C. Basak, Jailor, District Jail, Tura were present with a view to identify the real culprit by the victim. During TIP, the victim identified Sri Walseng Momin, who is having six fingers on the right hand thumb and identified the other accused Watseng Marak and Tengsang Sangma. She stated that on the evening of 29.9.02, she was picked up by them and they raped her. PW 2 gave her statement before the Magistrate under Section 164 of the Code vide Ext-3 (A) and her signatures are Ext-3(A)(1), (2), (3) and (4). As per the statement before the Magistrate and deposition before the Court during the trial on 3.12.09 her case is that the three accused persons raped her forcibly on 29.9.02 at Hawakhana School verandah at about 8 p.m. and later on, the accused Watseng Marak drove her to near Donbosco School and left her there, though she cried and requested him to drop her home but he just left her there and she proceeded alone on foot. Thereafter. PW 2 when reached near Wadanang graveyard one Maruti Van red in colour reached near her and there were eight boys in the van covering their faces and opened the door and forcibly took her inside the van. She screamed but they covered her mouth with their hands. Thereafter. PW 2 when reached near Wadanang graveyard one Maruti Van red in colour reached near her and there were eight boys in the van covering their faces and opened the door and forcibly took her inside the van. She screamed but they covered her mouth with their hands. She could not identify the other persons but identified Walseng Momin. Watseng Marak and Tengsang Sangma. PW 2 stated that Watseng and Tengsang could be identified from their voice whereas Walseng Marak from his finger who has six fingers on his right hand thumb. They turned the van and took her to Bolchugitoh Edenbari and on the way, she was forced to drink some liquor from small bottle and she became almost senseless. By that time, all of them forcibly gang raped her one after another which she knew but she had no power to resist and later on, when she came to her senses she was lying at civil hospital bed having pain all over the body. 9. The prosecution has examined the younger sister of the victim girl as PW 3 but her evidence does not throw any light relating to rape committed by the accused persons. Ms. Ringchi N. Marak, whose statement was also recorded under Section 164 of the Code was examined as PW 4. In her statement made under Section 164 of the Code vide Ext-6(3) on 29.9.02 she has stated that the victim, herself and Menolini went towards Hawakhana where they met Watseng Marak and Walseng Momin in an auto and they invited them to go with them to circuit house and there in the culvert they forced them to drink liquor and bidi. So they drank and from there they proceeded to Nehru Park and on the way, from Tetengkot junction, Watseng picked up one boy and six of them proceeded to Rubber garden near Nehru Park and till around 5.30 p.m. they were in the garden, but when the girls wanted to come Watseng, Walseng and Tengsang forcibly detained them. From there, they came to ITI complex at around 6 p.m. Later, they came via Tetengkot towards Government College Girls' Hostel near Jerusalem. From there, they came to ITI complex at around 6 p.m. Later, they came via Tetengkot towards Government College Girls' Hostel near Jerusalem. There also the girls were forced to stay with them but the girls refused and all of them got down but Watseng forcibly drove away the victim and PW 4 does not know where the victim girl was taken after that. In her deposition before the Court as PW 4 has stated that she and her friend Menolini Marak were known to Walseng and Watseng. She visited the victim in the hospital to enquire about her condition. But she deposed that the victim informed her that Watseng and Walseng did not rape her. But the victim deposed that she never told Menolini that the persons who raped her are Watseng, Walseng and Tengscng, who in fact are the persons alongwith five others, who forcibly raped her. 10. PW 5, Minty Marak is a resident of Williamnagar. He could not through any light in the case. His evidence, therefore, is of little value. 11. The prosecution examined Dr. S. K. Gurung as PW 6, who examined the victim on 30.9.02 at 8.45 p.m. on requisition by police. According to PW6, the victim was brought in an unconscious condition, her garments were torn, mixed with mud and her underwear was missing. She found difficulty in walking. There were abrasions with swelling in her private parts. Hymen was missing. According to the clinical findings she was the victim of gang rape. The offence of rape could have been committed about 4-5 hours before she was brought to the hospital. The doctor PW 6 deposed that she was gang raped based on the fact that her clothes were torn, her inner wearing was missing and the nature of her injury on the private parts. Ext-5 is the report of the doctor wherein Ext-5(1) is his signature. PW 6 has collected vaginal swab from the victim girl and also her wearing apparel which he handed over to the police. The seizure list is Ext-6 and his signature is Ext-6(1). 12. The prosecution has examined another doctor as PW 7. Dr. A. Montu A. Sangma, who deposed that on 6.10.02, he was on duty at Tura Civil Hospital and at about 7.57 p.m., three boys namely, Watseng R. Marak, Tengsang R. Sangma and Walseng Momin were brought by police for medical examination. 12. The prosecution has examined another doctor as PW 7. Dr. A. Montu A. Sangma, who deposed that on 6.10.02, he was on duty at Tura Civil Hospital and at about 7.57 p.m., three boys namely, Watseng R. Marak, Tengsang R. Sangma and Walseng Momin were brought by police for medical examination. They were referred by the police as having involved in sexual offence of rape. His reports are at Exts-7 and 8, wherein his signatures are at Exts-7(1) and 8(1). PW 7 has stated that he could not find any sign of recent sexual intercourse but they were habituated for sexual intercourse. They were examined about a week after the incident which caused disappearance of any sign. According to his experience those youngsters who were habituated to sex could also commit rape. He did not find any injury on the accused. It could be due to delay in examination. He has collected some vials containing blood, saliva and of urine swab from the three accused and handed over to police vide seizure list Ext-9 wherein his signature is at Ext. 9(1). 13. The prosecution could not examine the I/O, P. Ali (as in the meanwhile he expired) and therefore, Mr. R. Koch, who was serving as CI Sadar PS Tura was summoned as PW -8 to verify and identify the handwriting of late P. Ali. PW 8 who was aware of handwriting of late P. Ali had proved Ext-4, which is the sketch map of place of occurrence where there are two signatures of late P. Ali, Exts-4(2) and 4(3). Ext-9 is the seizure list wherein P. Ali's signature is at Ext-9(2). Ext. 2 is also the seizure list where the signature of late P. Ali is found vide Ext-2(3). Ext -10 is the petition of late P. Ali who made a prayer thereby for recording the statements of witnesses (1) Ms. Ringchi Marak & (2) Ms. Menolini Marak. Ext-16 is the charge sheet charging the accused under Section 376 IPC. Ext-16(1) is his signature thereon. 14. The prosecution has examined Mr. D. Goswami, the Superintendent of Tura District Jail as PW 9, who was a witness of TIP and his signature is at Ext -5(2). 15. Ringchi Marak & (2) Ms. Menolini Marak. Ext-16 is the charge sheet charging the accused under Section 376 IPC. Ext-16(1) is his signature thereon. 14. The prosecution has examined Mr. D. Goswami, the Superintendent of Tura District Jail as PW 9, who was a witness of TIP and his signature is at Ext -5(2). 15. The learned trial Court after hearing the parties and after going through all the relevant records came to conclusion that it is a case of gang, rape which stands proved and the accused were convicted under Section 376(2)(g) of the IPC and accordingly, sentenced them to undergo five years RI with a fine of Rs. 5,000/- (Rupees five thousand) only each with a defaulting stipulation and hence, this appeal questioning the legality and validity of the judgment of conviction and sentence. 16. Mr. Kar, learned Counsel appearing for the accused Appellants would contend that on the basis of sole testimony of the prosecutrix the conviction cannot be sustained in absence of corroboration. The counsel has further contended that the accused Appellants in Criminal Appeal No. 2(SH) of 2010, at the time of commission of offence were Juvenile under Section 2(1) of the Juvenile Justice (Care & Protection of Children) Act, 2000 and arc entitled to be dealt with under the aforesaid Act. 17. Per contra, Mr. Kharmih, learned Addl. PP appearing for the State has supported the judgment of conviction and sentence and contended that corroboration is not the sine qua non for conviction in a rape case and on the basis of the sole testimony of the prosecutrix, the conviction can be maintained if the testimony of the prosecutrix inspire the confidence of the Court and therefore, urged that no interference is required considering the gravity of the charge and the charge has been proved beyond all reasonable doubt. 18. Heard the arguments advanced by the learned Counsel for the parties at length. Perused the records including the evidence recorded during the trial, more particularly, the evidence of PW 2, the victim girl and Dr. Gurung, PW 5. The evidence of PW 2 and the statement recorded under Section164 of the Code of Ms. Ringchi N. Marak wherein she stated that on the date of alleged occurrence the accused Watseng, Walseng.Tengsang alongwith the victim PW 2, PW 4 and Melonini Ch. Gurung, PW 5. The evidence of PW 2 and the statement recorded under Section164 of the Code of Ms. Ringchi N. Marak wherein she stated that on the date of alleged occurrence the accused Watseng, Walseng.Tengsang alongwith the victim PW 2, PW 4 and Melonini Ch. Marak were in the auto wherein they were forced to drink liquor and bidi and thereafter, proceeded to Nehru Park and on the way from Tetengkot junction they came to ITI complex at about 6 PM and later they came towards Government College Girl's Hostel where they were forced to spend the time with them but the girls refused and all of them got down but Watseng forcibly drove away the victim, but she does not know where she was taken after the incident which clearly indicates that before the victim got down she was taken forcibly and drove away. The prosecution is therefore, has proved the case of forcibly taken away the victim girl. 19. Now a close scrutiny of the evidence of PW 2 would reveal that on 29.9.02, the three accused Appellants have raped her forcibly at Hawakhana School verandah at about 8 PM and later on, Watseng Marak drove her near Donbosco School and left her there. She cried and requested him to drop her at home but he just left her there and when she proceeded alone back on foot and reached near Wadanang graveyard, one Maruti Van, red in colour came near her wherein she found eight boys in total including three Appellants and they forcibly gang raped her. In the TIP, PW 2 recognised the three Appellants. From the evidence, the prosecution projected, it is clearly established that the accused Appellants had a common intention of committing rape on the victim. In order to bring home the charge, under Section 376(2)(g) is the existence of common intention in animating the accused to do the criminal act in furtherance of such intention, the principles of Section 34 IPC have clear applications. In order to bring in the concept of common intention it is to be established that there was simultaneous consensus of minds of the persons participating in the act to bring about a particular result. It presupposes a prior meeting and pre-arrange plan. In order to bring in the concept of common intention it is to be established that there was simultaneous consensus of minds of the persons participating in the act to bring about a particular result. It presupposes a prior meeting and pre-arrange plan. The common intention to bring about particular result may well developed on the spot as between a number of persons which has to be gauged on the facts and circumstance of each case. In the instant case, admittedly there were six persons in the auto viz. three accused Appellants and the victim, Ms. Ringchi N. Marak, PW 4 and Ms. Melonini Ch. Marak. The other girls got down near Government College Girls' Hostel but the accused Watseng forcibly drove away the victim and three accused Appellants raped her at Hawakhana School verandah at about 8 PM and later on, left her near Donbosco School. While she was returning on foot, a Maruti Van. red in colour came near her and forcibly took her wherein she identified three accused Appellants. She identified Watseng and Tengsang from their voice and Walseng from his fingers, who has six fingers on his right thumb. The evidence of PW 2 is unshaken by the defence and she also has recognized these three accused Appellants during the TIP. Therefore, it can safely be concluded and established that there was simultaneous meeting of minds of these three Appellants to commit the crime of rape and therefore, the requirement of Section 376(2)(g) of the IPC is established and the finding arrived at by the learned trial Court in regard to common intention to commit the rape is affirmed. 20. Since the question of juvenility of two Appellants viz., Walseng M. Momin and Tengsang @ Navino M. Sangma has been raised relating to applicability of the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 (for short 'Act, 2000') on the date of commission of offence i.e. on 29.9.02, the Court seemed it fit to remit the case to the learned trial Court to make an enquiry in accordance with the provisions of Section 7A of the Act, 2000 to determine the age of the two Appellants on the date of commission of offence and on completion of the enquiry, the trial Court send back the enquiry report to the Court for disposal in accordance with law. 21. 21. The enquiry report as divulged would show that both the Appellants have undergone ossification test held by the Radiologist which can be accepted as the best way of determining the age under medical jurisprudence and the age so determined is accepted by the Court too. The enquiry report submitted by the Radiologist and produced before this Court would reveal that on the date of examination i.e. 15.11.10, the age of Walseng M. Momin was abour 25 years, whereas the age of the other accused Appellant, namely, Tengsang @ Navino M. Sangma was about 21 years. The opinion of the Radiologist can be accepted to have more credence than any other opinion. The age of the two Appellants as mentioned hereinabove, can also be scrutinized from another angle. The Admit Cards have been produced which are on record. The Admit Cards issued by Meghalaya Board of Secondary Education in the year 2004, reveal that both the Appellants appeared in the High School Leaving Certificate Examination. In the said Admit Cards the date of birth of Walseng M. Momin has been recorded as 4.1.85, whereas the date of birth of Tengsang @ Navino M. Sangma has been recorded as 2.11.88. Considering the enquiry report submitted by the Radiologist, coupled with the Admit Cards issued by the Meghalaya Board of Secondary Education, this Court has no hesitation to hold that these two Appellants viz., Walseng M. Momin and Tengsang @ Navino M. Sangma were juvenile within the meaning of Section 2(K) of the Act, 2000 on the date of commission of offence on 29.9.02 and accordingly, both these accused Appellants would require to be forwarded to the Juvenile Justice Board for passing appropriate orders under the provisions of the Act, 2000. 22. In the result, the judgment of conviction and sentence passed by the learned trial Court in regard to accused Watseng Marak is not interfered with and thereby affirmed. 23. The other two accused Appellants viz. Walseng M. Momin and Tengsang @ Navino M. Sangma being held as juvenile within the meaning of Section 2(K) of the Act., 2000 on the date of commission of offence on 29.9.02, they shall be forwarded immediately to the Juvenile Justice Board. The Board will consider their cases independently and pass appropriate orders in accordance with law. 24. Accordingly, the appeal being Crl. Appl. The Board will consider their cases independently and pass appropriate orders in accordance with law. 24. Accordingly, the appeal being Crl. Appl. No. 1(SH) of 2010 filed by Watseng Marak is dismissed and the appeal being Crl. Appl. No. 2(SH) of 2010 filed by Walseng M. Momin and Tengsang @ Navino M. Sangma is partly allowed as indicated hereinabove. 25. Send down the lower Court record.