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2022 DIGILAW 190 (MEG)

Kneslidy Iawphniaw v. State of Meghalaya

2022-07-19

W.DIENGDOH

body2022
JUDGMENT 1. Heard learned counsel for the petitioner, Mr. B. Deb, who has submitted that the affidavit-of-service on the respondent No. 2 has been filed indicating that the respondent No. 2 has received the notice issued. However, the respondent No. 2 has failed to appear before this Court today and as such, as prayed, this matter shall proceed ex-parte against the respondent No. 2. It is however evident that the course of the respondent No. 2 will also be espouse by the respondent No. 1. 2. Mr. B. Deb has also submitted that on 27.10.2019 the respondent No. 1 had lodged an FIR before the Officer In-Charge Mawkyrwat PS, South West Khasi Hills with the information that the son of the petitioner herein, Khrawkupar Iawphniaw had raped her minor daughter aged about 12 years at their residence on 26.10.2019. The accused is also the step-father of the minor victim. 3. Accordingly, Mawkyrwat PS Case No. 28(10)2019 under section 5(n)/6 POCSO Act was registered and investigation launched. The Investigating Officer (I/O) has then filed the chargesheet indicating that there is prima facie case well established against the accused and he was sent to stand trial before the trial court. The matter was then taken up by the learned Special Judge POCSO, Mawkyrwat in Special POCSO Case No. 2 of 2022. 4. The learned counsel for the petitioner has further submitted that three witnesses has been examined before the learned Special Court as the case is at the evidence stage. On perusal of the evidence of PW-1 who is the respondent No. 2 herein, the evidence would show that she was not present at the P/O and has deposed only on the basis of the version of the victim. Again, as far as the deposition of the victim is concerned, when she has examined herself as PW-2, though the victim has stated that the accused had raped her but, at the same time had also stated that her elder brother who is blind and bed-ridden was present at the P/O. It is also the statement of the victim that the accused was already drunk when the incident happened and that, that was the only time the accused had committed the offence against her. This, according to the learned counsel for the petitioner is only one-sided version to which the accused was not given the opportunity to contradict. 5. This, according to the learned counsel for the petitioner is only one-sided version to which the accused was not given the opportunity to contradict. 5. On the evidence of the doctor (PW-3), the learned counsel has submitted that this witness has medically examined the victim on 26.10.2019, the date of the alleged incident but in his evidence has opined that the alleged assault took place a few days ago therefore, the evidence of PW-3 is only based on surmise and conjecture. 6. However, the main thrust of the argument of the learned counsel for the petitioner is that the accused is in custody for more than two years and in the meantime only three witnesses has been examined and for more than a year after the evidence of PW-3 was recorded the case has not progress and as such, on the ground of delay, the accused may be allowed to be enlarged on bail with any condition as deem fit and proper by this Court to be imposed. 7. In support of his case, the learned counsel for the petitioner has cited the case of State of Kerela v. Raneef: (2011) 1 SCC 784 para 15 as well as the case of Sanjay Chandra v. Central Bureau of Investigation: (2012) 1 SCC 40 para 21, 22, 23, 25, 36 and 43. 8. Again, on the issue of delay the case of Munna @ Kampta Prasad & Anr. v. State of Madhya Pradesh 1989 M.P.L.J 781 para 31and 32 was also cited by the petitioner. 9. Per contra, Mr. H. Kharmih, learned Addl. PP. has submitted that the offence charged against the accused is very serious inasmuch as being a stepfather he had committed a despicable act against his own step-daughter. The evidence on record particularly that of the victim (PW-2) and the doctor (PW-3) has succinctly brought out the fact of how the accused had committed the offence which clearly proves that the accused had committed penetrative sexual assault on the victim and as such considering the seriousness and gravity of offence involved, the accused may not be enlarged on bail at this juncture. 10. After hearing the parties this Court has given due and careful consideration of the submission and contention made by both sides. 10. After hearing the parties this Court has given due and careful consideration of the submission and contention made by both sides. Here, is a case where the accused has been alleged to have committed aggravated sexual assault on his own step-daughter who is a minor of 12 years old at the time of the incident. 11. Though this Court is not required to go into the evidence at the stage of consideration of bail, however, prima facie it appears that a case has been made out against the accused, subject to the final analysis and appreciation of evidence by the trial court. 12. Since the case has reached the stage of recording of evidence, therefore it can be presumed that there is no scope for either tampering with the evidence or witnesses by the accused if enlarged on bail. What is required is for the accused to be available and be present in court when the matter is taken up, that is to say he shall not abscond or leave the jurisdiction of court without due permission. 13. The decision in the case of Sanjay Chandra (supra) relied upon by the learned counsel for the petitioner is found relevant as far as the object of bail being to secure the appearance of the accused person at his trial, is concerned. 14. Taking note of the fact that the accused has been in custody for more than two years, the observation of their lordships at para 21 and 22 in the case of Sanjay Chandra (supra), extracted herein below can be applied to the case of the accused herein: '21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. 22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. 22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, 'necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.' 15. Without going into the aspect of the issue of delay and the authorities cited by the learned counsel for the petitioner in this regard, this Court is of the opinion that at this juncture the accused can be enlarged on bail to allow him to represent his case free from the shackles of custodial detention and to be able to engage his counsel to defend his case. 16. Accordingly, the accused is hereby directed to be released on bail on the following conditions:- i. That he shall not abscond or tamper with the witnesses; ii. That he shall appear in Court as and when required; iii. That he shall execute a personal bond of Rs. 30,000/- (Rupees thirty thousand) only along with two sureties of like amount, to the satisfaction of the Trial Court. iv. That he shall not leave the jurisdiction of India without the prior permission of the Court. 17. With the above, this petition is hereby disposed of. No costs.