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2022 DIGILAW 172 (MEG)

Long Pohshna v. State of Meghalaya

2022-07-04

W.DIENGDOH

body2022
JUDGMENT 1. The learned Session Judge, East Jaintia Hills, Khliehriat on consideration of the facts and circumstances in Session Case No. 11 of 2021 has on the basis of the evidence tendered and the materials on record as well as upon hearing the prosecution and defence, pronounced the judgment and order dated 13.12.2021 convicting the appellant herein and ordering a sentence of 7(seven) years with fine of Rs. 50,000/- (Rupees fifty thousand) only and in default thereof, to undergo a further one month's imprisonment. 2. The appellant not being satisfied with the said conviction and sentence indicated above, has approached this Court with this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 with a prayer to set aside and quash the said impugned judgment and order dated 13.12.2021. 3. Bereft of unnecessary details, the brief fact of the case is that on 13.09.2001, the appellant came to the house of the victim with criminal intent at about 4:00 pm following which he is said to have raped her inside her house without her consent. On coming to know of the incident, on the same day, an FIR was lodged by her father, Shri Moken Shadap before the Officer In-charge, Umkiang Police Patrol Post, Jaintia Hills. 4. On receipt of the said FIR, it was forwarded to the Officer Incharge, Khliehriat, Police Station and was registered as Khliehriat P.S. Case No. 83(9) of 2001 under Section 376 IPC. 5. On investigation launched, the Investigating Officer (I/O) has referred the victim and accused for medical examination and has also caused examination of the complainant, the victim and other witnesses as a preliminary step. On completion of the investigation, the I/O has then filed the Final Form under Section 173 Cr.P.C. by filing the charge sheet in the case whereby, it was indicated that in course of investigation, a prima facie case under Section 376 IPC is found well established and accordingly, the accused/appellant was sent up to face trial before the court. 6. In due course, the case was taken cognizance of by the Session Judge who has framed charge under Section 376 IPC against the appellant and has directed for evidence to be recorded. The prosecution then examined as many as 10(ten) witnesses, including the complainant and the victim and has also exhibited 7(seven) documents, but no materials were exhibited. 6. In due course, the case was taken cognizance of by the Session Judge who has framed charge under Section 376 IPC against the appellant and has directed for evidence to be recorded. The prosecution then examined as many as 10(ten) witnesses, including the complainant and the victim and has also exhibited 7(seven) documents, but no materials were exhibited. Thereafter, the statement of the appellant under Section 313 Cr.P.C. was recorded and after hearing the final argument of the parties, the impugned judgment and order was passed. 7. Mr. S. D. Upadhaya, learned Legal Aid Counsel, has led this Court to the evidence of the witnesses, more particularly the evidence of the victim who was examined as PW-6, that of the complainant who was examined as PW-1 and also PW-5, the mother of the victim and the evidence of the doctor as PW-7. 8. Coming to the evidence of PW-6, the victim, the learned Legal Aid Counsel has submitted that her evidence will reveal that the incident allegedly occurred on 13.09.2001 at about 4:00 pm when, while she was at home, one person who is unknown to her entered the house, on overpowering her, he raped her and thereafter, left the house. The victim alerted some people who heard her scream. Her father told them what had happened and in response, those people have suggested that the perpetrator might have been the person who is selling liquor not far from the house of the victim. The father then confronted the person who threatened him after which he reported the matter to the headman and also to the police. At the police station, the victim came to know the name of the person as Long Pohshna, the appellant herein. 9. The father of the victim who has lodged the FIR, in his evidence as PW-1 has deposed that his daughter, the victim had informed him that one person who had recently come and resided in Umkiang village had committed raped on her. He then went to the house of the accused/appellant to confront him on this, but he was threatened by the accused. Thereafter, he went to the house of the Secretary of the village and the Secretary after calling a meeting of the Dorbar Shnong, went and apprehended the appellant from his house and they then reported the matter to the police. Thereafter, he went to the house of the Secretary of the village and the Secretary after calling a meeting of the Dorbar Shnong, went and apprehended the appellant from his house and they then reported the matter to the police. The name of the person was eventually identified as Long Pohshna. 10. What follows is the evidence of the mother of the victim, who in her evidence has materially deposed that her daughter had told her that one unknown man came to the house and raped her. 11. The learned Legal Aid Counsel has submitted that from the evidence of the complainant (PW-1), the mother (PW-5) as well as the victim (PW-6), what is evident is that the identity of the perpetrator could not be established and that the appellant was apprehended only on the basis of suspicion raised by some people who were not even called as witnesses in this case. 12. The Doctor who has medically examined the victim as well as the appellant, in her deposition before the court as PW-7 has stated that 'on medical examination of the victim, I found that there was no sign of struggle on her body' and further that 'the victim denied that she had ever known the accused person' and again, she has stated that 'in my opinion-There is evidence of recent sexual intercourse'. This witness has also examined the appellant and has stated that 'Findings: no sign of struggle on the body of the accused' It is also stated that 'in my opinion-no evidence of recent sexual intercourse' 13. Leading this Court to the evidence of the Investigating Officer who has deposed as PW-10, the learned Legal Aid Counsel has submitted that this witness has referred to the steps taken by the previous I/O who has seized the underwear which was sent for FSL examination, however the report of the FSL examination has not been exhibited and as such, could not have been considered as evidence in this case. 14. The appellant on being examined under Section 313 Cr.P.C has clearly denied any involvement in the alleged act of rape on the victim and has consistently maintained that he is not aware of any such incident, submits the learned Legal Aid Counsel. 15. 14. The appellant on being examined under Section 313 Cr.P.C has clearly denied any involvement in the alleged act of rape on the victim and has consistently maintained that he is not aware of any such incident, submits the learned Legal Aid Counsel. 15. While assailing the impugned judgment and order of sentence, the learned Legal Aid Counsel has submitted that an appreciation of the evidence of the victim and the witnesses brought forward by the prosecution, particularly the evidence of the victim, it can be seen that this witness is not a sterling witness and accordingly, the court could not have convicted the appellant only on the basis of such evidence. The benefit of doubt should have gone to the appellant. 16. In support of his contention, the learned Legal Aid Counsel has cited the following cases of i) Rai Sandeep alias Deepu v. State (NCT of Delhi) 2012 8 SCC 21 para 22, 23 and 32 ii) Abbas Ahmad Choudhary v. State of Assam para 11 and iii) Ramdas & Ors. v. State of Maharashtra para 23. 17. Mr. B. Bhattacharjee, learned AAG, along with Ms. Z.E. Nongkynrih, learned GA on behalf of the State respondent has countered the submission of the learned Legal Aid Counsel and has submitted that the evidence and the materials on record would show that a case of conviction against the appellant herein have been made out, inasmuch as, he has been found to be the perpetrator of the crime. The evidence of PW-1, PW-7 and PW-6, the victim herself read in totality would establish this fact. 18. Going to the evidence of PW-1, the learned AAG has submitted that this witness who is the father of the victim on coming to know of the incident, had recounted the same to some of the people who were in the vicinity who then told him that the crime may have been committed by the person who runs a liquor shop. Accordingly, he went to confront the said person who was later identified as the appellant herein, but was threatened by him. This has only fortified the assertion that the appellant is guilty as charged. 19. Accordingly, he went to confront the said person who was later identified as the appellant herein, but was threatened by him. This has only fortified the assertion that the appellant is guilty as charged. 19. The evidence of the victim is also very clear, inasmuch as, though initially, she said that she was raped by an unknown person, however at the police station, she was told that the name of this person is Long Pohshna. The learned AAG has submitted that this piece of evidence was not controverted by the defense and as such, the same stands unrebutted to the extent that the identity of the perpetrator has been established. 20. The FSL report on the underwear of the appellant on being examined, has also indicated that there is presence of seminal fluid and this would only lend credence to the fact that at the relevant time, the appellant has had sexual intercourse which can only point to one direction, that is, that he had raped the victim on the day of the incident, submits the learned AAG. 21. Finally, the learned AAG has submitted that in a case of rape, the evidence of the victim carries a lot of weight and on her sole testimony, the conviction can be sustained. The learned Trial Court have clearly established this aspect of the case and accordingly, the impugned judgment and order does not suffer from any infirmity, the same may be sustained by this Court. The case of Ganesan v. State represented by its Inspector of Police: (2020) 10 SCC 573 at para 10.1 was cited in this regard to support this case of the Sate respondent. 22. Due consideration is given to the submission and contention of the rival parties and facts as stated above may not be repeated. However, a proper appreciation of the evidence and materials on record is required to come to a conclusion as to whether the honour and dignity of the victim has been violated by an act of rape and as to whether the appellant was indeed the culprit or that he was unjustly convicted. 23. The fulcrum of the case would be on the evidence of the victim herself who has started the ball rolling on her complaint that an unknown person had entered the house when she was alone and that this person had raped her. 23. The fulcrum of the case would be on the evidence of the victim herself who has started the ball rolling on her complaint that an unknown person had entered the house when she was alone and that this person had raped her. The first person to be informed of this incident is the complainant who is the father of the said victim. His immediate reaction was to enquire from some people who had apparently heard the scream of the victim and who had told the complainant that the perpetrator could have been a person who was selling liquor whose description perhaps fits that of the appellant herein. What follows next is that on the instigation of the complainant, the Secretary of the village dorbar was informed and members of the village dorbar were called upon to apprehend the appellant who was eventually arrested by the police. 24. From the evidence of PW-1 (complainant), it is not clear as to how the appellant could have been pinpointed as the perpetrator of the alleged crime, since there is no eye witness, nobody has seen him in the vicinity of the place of occurrence and nobody has also seen him entering or leaving the house of the victim on the date of the incident. The event leading to his arrest is only on the basis of some stray remarks or suspicion cast by some passersby who were not even called as witnesses in the case. 25. The evidence of the victim is very vital since she was the one who was in a vantage position to actually connect the appellant to the offence. Firstly, since she was the one who was violated and secondly, since the perpetrator was in close contact with her at the time of the alleged commission of the act. The victim is expected to recognize the perpetrator even if she does not know his name. As pointed out by the appellant, the incidence is said to have taken place at about 4:00 pm in the evening which is still within daylight hours. However, the victim has consistently maintained that the alleged perpetrator is not known to her, right from her statement under Section 161 and 164 Cr.P.C. respectively and even when she has taken her stand at the witness box to depose as PW-6. However, the victim has consistently maintained that the alleged perpetrator is not known to her, right from her statement under Section 161 and 164 Cr.P.C. respectively and even when she has taken her stand at the witness box to depose as PW-6. Here too, if she could sense some familiarity when the appellant was in the dock, she could still have expressed the same, but in her deposition, this aspect of the matter was not forthcoming, as far as a definite identification of the appellant as the perpetrator is concerned. This, in the opinion of this Court has cast a strong doubt as to the identity of the appellant as the culprit. 26. If what has been admitted by the appellant in his statement under Section 164 Cr.P.C. that he had a sexual relationship with the victim for one week or so before he was arrested, which statement was also recalled by PW-8 who was the Magistrate who had recorded the said statement of the appellant under Section 164, is to be taken into consideration, the fact that the same has been retracted by the appellant in his statement under Section 313 Cr.P.C., its evidentiary value is lost, there is also no corroboration of this statement by any of the witnesses, especially the victim. Again, even if it can be assumed that the said statement is true, then the fact that the victim has failed to acknowledge the same and further that she has maintained that the perpetrator is unknown to her, would render such confession, if at all, meaningless. 27. In the case of Abbas Ahmad Choudhary (supra) at para 11, relied upon by the appellant, the Apex Court has held that in a matter of rape, the statement of the prosecutrix must be given primary consideration, however at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt equally applies. 28. Again, in the case of Ramdas (supra) also relied upon by the appellant, at para 23, the Hon'ble Supreme Court has held that it is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done only in a case where the court is convinced of the truthfulness of the prosecutrix. 29. 29. This leads us to the third judgment relied upon by the appellant, which is the case of Rai Sandeep (supra) wherein at para 23 of the same, the Hon'ble Supreme Court has expressed its opinion as to who is a 'sterling witness' and has answered the same by saying that a sterling witness should be of a very high quality and caliber whose version should, therefore be unassailable. 30. The authority relied upon by the State respondent that is, the case of Ganesan (supra) particularly at para 10.1 speaks of the same principle, when the Hon'ble Supreme Court asks the question as to whether in a case of sexual harassment, molestation etc., can there be conviction on the sole evidence of the prosecutrix and in answer to this, a number of judgments were referred to, which is a reference, inter alia, to the fact that the testimony of a prosecutrix must be appreciated in the background of the entire case and minor contradictions or insignificant discrepancies in the statement of the prosecutrix which are not of a fatal nature should not be thrown out in an otherwise reliable prosecution case and again, if such statement if found to be worthy of credence and reliable, requires no corroboration, the court may convict the accused on the sole testimony of the prosecutrix. 31. Applying the principle enunciated in the authorities cited above to the facts and circumstances of the case in hand, this Court is of the considered opinion that the victim or the prosecutrix has failed to give any noteworthy evidence and has not been able to pin the appellant to the offence of rape as alleged, she cannot be considered to be a sterling witness and her evidence cannot be fully relied upon to convict the appellant. The prosecution has not been able to prove the case beyond reasonable doubt and accordingly, the benefit of doubt has to go to the appellant. 32. Viewed thus, the findings of the learned Session Judge, East Jaintia Hills, Khliehriat based upon which the appellant was convicted cannot be sustained and has failed the scrutiny of law. 33. The impugned judgment of conviction and the corresponding order of sentence of the appellant is hereby set aside and quashed. The appellant is directed to be set at liberty forthwith, provided he is not wanted in any other criminal case. 34. 33. The impugned judgment of conviction and the corresponding order of sentence of the appellant is hereby set aside and quashed. The appellant is directed to be set at liberty forthwith, provided he is not wanted in any other criminal case. 34. Let copy of this judgment be issued upon the appellant free of cost and also another copy of the same be issued upon the Jail Superintendent, District Jail, Jowai for information and necessary action. 35. Registry to return the Lower Court case record. 36. Appeal disposed of. No costs.