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2021 DIGILAW 112 (MEG)

Shaiborlang Nongbri v. State of Meghalaya

2021-12-15

W.DIENGDOH

body2021
JUDGMENT : W. DIENGDOH, J. 1. This is an application under Section 439 Cr.P.C. for grant of bail to the applicant Shri Shaiborlang Nongbri who was arrested on allegation that he has sexually assaulted a minor girl aged about 14(fourteen) years, for which on the basis of the FIR lodged on 25.08.2021, by the aunt of the victim girl on receipt of which the Officer-in-Charge Madanrting Police Station had caused registration of a police case being Madanrting P.S. Case No. 119 (8) 2021 under Section 3(a)/4 POCSO Act, 2012. 2. The contents of the FIR indicates that the complainant therein who is the aunt of the alleged victim girl had reported that on 19.08.2021 when her niece who is the alleged victim girl was alone at her home, suddenly in the afternoon the accused/applicant suddenly forcefully entered the house and raped the alleged victim girl who had struggled to get free, but because of the fact that she is weaker than him, she was unable to do so. Further, on 20.08.2021, the accused/applicant further threatened the alleged victim girl to the extent that she should not get married to any man since she is now his wife and that he will assault the man who will be married to her. Request is made to the police to take necessary action following which the accused/applicant was arrested on 25.08.2021. 3. On investigation being completed, the I/O amongst other things having taken down the statement of the complainant, the alleged victim girl and other relevant witnesses, the Final Form under Section 173 Cr.P.C. was prepared and charge-sheet No. 36/2021 dated 22.10.2021 was filed before the Court stating inter-alia, that on the basis of the investigation conducted, a prima-facie case was found well established against the accused who is said to have committed an offence under Sections 7/8 of the POCSO Act, 2012 and is accordingly forwarded to the Court to stand trial. 4. Heard Mr. K. Ch. Gautam, learned counsel for the applicant who has submitted that a perusal of the FIR would show that the alleged victim girl was said to have been sexually assaulted and raped by the applicant, however in her statement under Section 161 Cr.P.C. the alleged victim girl has not specifically stated that the applicant had raped her. Heard Mr. K. Ch. Gautam, learned counsel for the applicant who has submitted that a perusal of the FIR would show that the alleged victim girl was said to have been sexually assaulted and raped by the applicant, however in her statement under Section 161 Cr.P.C. the alleged victim girl has not specifically stated that the applicant had raped her. The FIR was also lodged six days after the alleged incident, which according to the learned counsel has created an impression that it was an afterthought. 5. Mr. Gautam has however submitted that as on today, the charge-sheet has already been filed and the applicant would be required to argue the matter on merits. One pertinent point that is required to be considered by this Court is the fact that the alleged offence against the applicant is under Section 7 of the POCSO Act and Section 8 which prescribes the punishment for such offence, the period of imprisonment prescribed being between three years and the upper limit of five years. Considering the facts and circumstances of the case, the fact that the applicant is from a poor family and the only bread earner having to feed his dependents and having been in custody for almost three months and also having no criminal antecedents, he may be enlarged on bail with any stringent conditions imposed on him. 6. Mr. K.P. Bhattacharjee, learned GA for the State respondent has submitted that the charge-sheet has already been filed and the case is before the Trial Court, the applicant can therefore pursue his case before the Trial Court and may be heard at the stage of consideration of charges. 7. Having heard the learned counsels for the parties and on perusal of the instant application as well as the records including the case diary which was duly produced before this Court, the facts and circumstances as stated above need not be reiterated. However, what is noticed is that on the basis of the narration of the alleged victim girl who has specifically named the applicant herein as her perpetrator and after informing her aunt who is an adult, steps was taken to bring the matter to the attention of the authorities. However, what is noticed is that on the basis of the narration of the alleged victim girl who has specifically named the applicant herein as her perpetrator and after informing her aunt who is an adult, steps was taken to bring the matter to the attention of the authorities. The fact that the FIR was lodged six days after the alleged offence would not materially alter the fact that an incident of alleged sexual assault had occurred, which is required to be addressed in accordance with law. 8. Another aspect that was noticed by this Court is that initially the police case was registered accusing the applicant for an alleged offence under Section 3 of the POCSO Act, which speaks about a person who is said to have committed penetrative sexual assault, however after investigation is completed, it has been found that there is no penetrative sexual assault, but only sexual intent which involves physical contact without penetration also classed as sexual assault under Section 7 of the POCSO Act. It stands to reason that evidence has yet to be led in the case to finally come to the findings as to whether the applicant is guilty of the offence as charged or not. 9. Be that as it may, while considering an application for bail, it is well settled that there are certain guidelines and principles which would enable the Court to consider the same on the particular and peculiar facts and circumstances of the case in hand. 10. It would be profitable to list a few of the well-established guidelines and principles as mentioned above in matters of consideration of bail being: (i) whether there is any prima-facie or reasonable ground to believe that the accused had committed the offence. (ii) nature and gravity of the accusation. (iii) severity of the punishment in the event of conviction. (iv) danger of the accused absconding or fleeing, if released on bail. (v) character, behavior, means, position and standing of the accused. (vi) likelihood of the offence being repeated. (vii) reasonable apprehension of the witnesses being influenced. 11. The accusation no doubt is grave and serious, however only evidence will reveal to what extent the same can be proved. (iv) danger of the accused absconding or fleeing, if released on bail. (v) character, behavior, means, position and standing of the accused. (vi) likelihood of the offence being repeated. (vii) reasonable apprehension of the witnesses being influenced. 11. The accusation no doubt is grave and serious, however only evidence will reveal to what extent the same can be proved. As to the severity of the punishment as submitted by the learned counsel for the applicant, it is a matter of record that in case of conviction, the term of imprisonment may range from three years to a maximum of five years. 12. The applicant being a daily labourer and with no criminal antecedent, therefore at this juncture, benefit of doubt can be accorded to him, as far as antecedent is concerned. The case having been charge-sheeted, the required evidence, materially or otherwise is assumed to have been collected by the I/O and as such, the issue of tampering with the same may not arise at this point of time. 13. It is also a general principle of bail jurisprudence that bail and not jail should be the guiding principles for courts as the purpose of bail is to allow the accused to prepare his defence sans a hostile environment. 14. On consideration of the submission made and the documentary materials perused, it is the considered view of this Court that at this juncture, the applicant/accused can be enlarged on bail. 15. Accordingly, this application is allowed. The applicant is hereby enlarged on bail on the following conditions that: (i) He shall not abscond or in any manner obstruct due course of procedure of the case before the Trial Court, particularly where the witnesses are concerned. (ii) He shall make himself available to appear before the Court as and when required. (iii) He shall not leave the jurisdiction of the Court without due permission thereof. (iv) He shall execute a personal bond of Rs. 30,000/- (Rupees thirty thousand) only with two sureties of like amount to the satisfaction of the Trial Court who will then issue the release order accordingly. 16. This matter is accordingly disposed of. No cost. 17. Registry is directed to send back the case record.