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2021 DIGILAW 439 (GAU)

Kossam Konyak v. State of Nagaland

2021-07-19

S.HUKATO SWU

body2021
JUDGMENT : S. Hukato Swu, J. 1. This is a bail application filed under section 439 of Cr.P.C. filed by one Shri Kossam Konyak, resident of Borlengri Colony, Dimapur, Nagaland for the release of Shri Hoiwang Konyak, aged about 48 years, resident of Sewak Colony, Dimapur. The petitioner is represented by Mr. Moa Jamir and the State respondent represented by Ms. V. Suokhrie, learned P.P. 2. The facts of the matter is that on 08.02.2016, an FIR was lodged by Smt. Lily Konyak, daughter of Bangbo Konyak, resident of Kuda Village B-Khel, Dimapur, Nagaland to the Officer-in-Charge, West Police Station, Dimapur, Nagaland alleging that the accused (Hoiwang Konyak) had raped a minor girl of 11 years of age in the month of September, 2015 at his residence in Sewak Colony, Dimapur. The victim came to Dimapur in the month of February, 2015 with her father to stay at the alleged accused person's residence for education. Basing on the complaint, the Officer-in-Charge, West Police Station registered the case West Police Station Case No. 0034/16, under section 376(f)(i) IPC, section 4/6 POCSO Act, read with 7 NSR in G.R. Case No. 108/16. The accused/petitioner was arrested in Tizit on 19.11.2020 and he is under custody till date. The bail application was filed before the Principal District and Sessions Judge, Dimapur in I.A. No. 338/2020 for the release of the accused/petitioner. However, by an order dated 16.12.2020, the bail application was rejected by the learned Principal District and Sessions Judge, Dimapur on the ground that the investigation was still in progress. Further direction was given that the accused should be given medical treatment for his complaint of appendicitis. The matter was again brought before the Special Judge, (FTSC), Dimapur and the matter was fixed for hearing on 20.04.2021 with the direction to the Medical Superintendent of District Medical Board to submit the medical board examination of accused on or before the fixed date for hearing. However, till date the bail application could not be heard nor the medical board filed report as directed by the learned FTSC, Dimapur. The reasons for non hearing of the bail application was due to the Special Judge contracting the Covid virus and being under home quarantine, therefore, the bail application was withdrawn and the petitioner has approached this Court for granting relief. 3. The reasons for non hearing of the bail application was due to the Special Judge contracting the Covid virus and being under home quarantine, therefore, the bail application was withdrawn and the petitioner has approached this Court for granting relief. 3. The main contention of the petitioner is that the accused/petitioner has been arrested on 19.11.2020 and since then he is under the judicial custody for 219 days with medical issues which is not addressed till date. The direction of the Court were also not complied with for giving proper medical treatment to the accused/petitioner and also furnishing proper medical report which was directed to be examined by a District Medical Board. On this score alone, the accused/petitioner is entitled to be enlarged on bail as provision of section 439 of Cr.P.C. is wide enough to cover such matter where the Court has been given wide discretion. The learned counsel for the petitioner, Mr. Moa Jamir also argued that the victim refused to undergo medical examination and the accused/petitioner has been put behind bar only on the statement of the victim which has not been supported by the medical evidence. Therefore, there is much doubt on the veracity of the charges that the accused committed rape upon the victim which deserves due consideration of the Court while examining whether bail should be considered or not. It may also be kept in mind that the FIR was lodged only after 6(six) months of the incident which puts the charges to doubt. Sufficient the delay was caused in filing of the FIR which is not reliable. The learned counsel for the petitioner has strenuously argued on the issues that once the charge-sheet has been filed the same time the investigation is completed, the presence of the accused in the custody is not a necessity. Several ruling of the Apex Court and also of the High Court have been passed in the light of such facts and circumstances. The learned counsel relied upon the case of the Sanjay Chandra vs. Central Bureau of Investigation, (2012) 1 SCC 40 , wherein it was held by the Apex Court that: “Para 46 - We are conscious of the fact that the accused are charged with economic offences of high magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardize the economy of the country. We are also conscious of the fact that the offences alleged, if proved, may jeopardize the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge-sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by the CBI.” Furthermore, the learned counsel has cited the case of State of Kerala vs. Raneef, (2011) 1 SCC 784 , wherein the Apex Court has pronounced that: “Para 15 - In deciding bail applications and important factor which should certainly be taken into consideration by the Court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail.” The above being the decision of the Apex Court, since the charge sheet has already been filed and there is no need to detain the accused/petitioner for the purpose of investigation. The trial is likely to prolong, if the accused is acquitted because of the very fact that there is no medical evidence and the FIR was filed with no explanation for the delay, in the event the accused is acquitted grave injustice would be meted to the accused. For all these reasons mentioned above, the learned counsel has prayed that the bail application may be granted to the accused/petitioner under such terms and conditions and as deem fit by the Court. 4. Appearing for the State respondents, the learned P.P. Ms. V. Suokhrie submits that the accused/petitioner committed rape upon a minor girl victim of 11 years of age at his residence and accordingly, the case was registered on 08.02.2016. However, the accused was absconding, the case was kept pending for want of his arrest. 4. Appearing for the State respondents, the learned P.P. Ms. V. Suokhrie submits that the accused/petitioner committed rape upon a minor girl victim of 11 years of age at his residence and accordingly, the case was registered on 08.02.2016. However, the accused was absconding, the case was kept pending for want of his arrest. During the course of investigation, the information was received from reliable source that the accused was hiding at Tizit area, Mon. With the assistance of the Tizit Police Station, the accused was arrested on 19.11.2020. During the course of investigation, the accused stated that he is a member of NSCN (IM) in the rank of Lt. Colonel. He also stated that while his wife was away for one week in the hospital during the month of September, 2015, one night he molested the victim by touching the victim's breast and private parts, masturbated and ejaculated on the victim's thigh. The second time, again he molested the victim by touching and pressing her breast, rubbed her private parts with his fingers. The victim's mother in her statements has recorded that only with the help of Smt. Lily Konyak, an FIR could be lodged against the accused Shri Hoiwang Konyak. In the month of October, 2016 at midnight when her husband was away from home, 5(five) unknown persons came to her house and forced her to withdraw the FIR. Those unknown persons also threatened her that they will tie her and will take her to the jungle. They threatened her that they will rape her too if she refused to withdraw the FIR and one person slapped her eldest daughter (victim's eldest sister). Those persons also told her that they will help her in the future and they would stay peacefully together if she withdraws the FIR. The learned P.P. Ms. V. Suokhrie relied upon the ruling of the Apex Court in the case of U.P. vs. Amarmani Tripathhi, (2005) 8 SCC 21 : “Para 18 - It is well settled that the matters to be considered in an application for bail are: (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 charge. (iii) Severity of the punishment in the event of conviction. (iv) Danger of the accused absconding or fleeing, if released on bail. (ii) Nature and gravity of the charge. (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 tampered with. (viii) Danger of course, of justice being thwarted by grant of bail. The learned counsel argued that the grounds relied upon by the Apex Court for rejection of bail is squarely covered in the instant case of the accused person. The learned counsel for the State respondent, Ms. V. Suokhrie also relied upon the case of Masroor vs. State of U.P. (2009) 14 SCC 286 , wherein the Apex Court has pronounced that fundamental right to individual liberty may be balanced with the interest of the society: “15. There is no denying the fact that the liberty of an individual is precious and is to be zealously protected by the Courts. Nonetheless, such a protection cannot be absolute in every situation. The valuable right of liberty of an individual and the interest of the society in general has to be balanced. Liberty of person accused of an offence would depend upon the exigencies of the case. It is possible that in a given situation, the collective interest of the community may outweigh the right of personal liberty of the individual concerned.” The learned counsel has cited the case of State of Bihar vs. Rajballav Prasad, (2017) 2 SCC 178 . The Apex Court has outlined the importance of fair trial and that the material witnesses should be given the opportunity to depose without fear and justice has to be done to the society. However, it is found that there is a possibility of interdicting fair trial by the accused if released on bail, this public interest of fair trial would outweigh the personal interest of the accused while undertaking the task of balancing the liberty of the accused on the one hand and interest of the society to have a fair trial on the other hand. The accused was absconding and have tried to evade the course of law. The accused has also employed unknown persons and threatened the victim's mother to withdraw the FIR. In fact, the victim's sister was slapped by the unknown persons obviously employed by the accused person. The accused was absconding and have tried to evade the course of law. The accused has also employed unknown persons and threatened the victim's mother to withdraw the FIR. In fact, the victim's sister was slapped by the unknown persons obviously employed by the accused person. Therefore, there is no reason why the Court should come to the conclusion that the accused is innocent and also to form an opinion that the accused would not misuse his liberty if granted bail. The gravity of offence under POCSO Act need not be elaborated. Some of the offence in the Act such as, section 3, 5, 7 and 9 of the POCSO Act are to be presumed that such offences have been committed by the accused unless is proved otherwise by the accused under the provision of section 29 of the POCSO Act. Rape of a minor girl is an offence not lightly to be taken. Therefore, the learned counsel for the respondent has vehemently objected to the release of the accused person on bail. 5. I have keenly heard the submissions made by the parties and I am of the considered view that the accused/petitioner by his action provides sufficient ground for apprehension by the Court that he would misuse liberty if released of bail. The very act of threatening the mother of the victim's to withdraw the case and also slapping the victim's sister cannot be brushed aside lightly by the Court. Neither can the Court overlook the facts that the accused was in hiding for a considerable period of time before his arrest. This action of the accused is only suggestive of his guilt and his propensity for evading the trial. 6. Added to all these undesirable actions of the accused petitioner, he has admitted that he has committed the offence. Although he is yet to be tried, a strong prima facie case exists against him which the Court should consider. It is not a case where the risk of unjustified detention could be occasioned in the event of his acquittal. 7. It is a settled law that bail is the rule and jail is exception but on fulfilling certain conditions, the Apex Court pronounced in the case of State of Rajasthan vs. Balchand, (1977) 4 SCC 308 , wherein it was held that: “2. 7. It is a settled law that bail is the rule and jail is exception but on fulfilling certain conditions, the Apex Court pronounced in the case of State of Rajasthan vs. Balchand, (1977) 4 SCC 308 , wherein it was held that: “2. The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimating witnesses and the like, by the petitioner who seeks enlargement on bail from the court. We do not intend to be exhaustive but only illustrative.” Considering the pronouncement of the Apex Court in the above rulings we have no doubt we observe that there is clear tendency shown by the character of the accused/petitioner that he would misuse his liberty which would not be in the interest of fair trial and for the good of the society. For the reasons cited and discussed above, I am not inclined to consider the bail application of the accused/petitioner and it is accordingly rejected. 8. However, with respect to the medical issues of the accused/petitioner he is at liberty to file appropriate bail application if properly constituted medical board certifies that his medical condition suggests that the petitioner deserves to be released on bail. Proper medical facility should also be given to the petitioner. The bail application stands disposed. Return the LCR forthwith.