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2022 DIGILAW 286 (MEG)

Aten Marak v. State of Meghalaya

2022-10-26

W.DIENGDOH

body2022
JUDGMENT 1. An FIR dated 07.05.2022 was lodged by one Shri Telbi D. Sangma (respondent No.2) before the Officer-In-Charge Tura Women Police Station wherein, an incident which occurred on 26.04.2022 in which the cousin sister of the complainant aged about 14 years old and who is also said to be mentally retarded was raped by the petitioner herein. The incident occurred at Abisella Bolchugre, West Garo Hills. It is also further stated that the incident was witnessed by the uncle of the victim girl. 2. On receipt of the said FIR, Tura Women PS Case No. 57(5) of 2022 under Section 5(k)/6 of the POCSO Act was registered. The Investigating Officer (I/O) who was entrusted with the investigation of the case has accordingly proceeded as per procedure and has firstly made arrangement for medical examination of the victim at the Maternity and Child Hospital, Tura on 06.05.2022. Thereafter, the I/O has also recorded the statement of the victim as well as the relevant witnesses to the case. The I/O however, could not apprehend the accused/petitioner as he could not be found in his place of residence. 3. The petitioner in the meantime, apprehending arrest in connection with the abovementioned case, had approached the court of the learned Special Judge (POCSO) West Garo Hills, Tura with a prayer for grant of pre-arrest bail but the same was rejected without being heard on merits. The petitioner has accordingly now approached this Court with this instant application under Section 438 Cr.PC with a prayer for grant of anticipatory bail. 4. Mr. M.Kr. Das, learned counsel for the petitioner has submitted that the petitioner is not at all involved in the case, infact the named accused in the FIR is one Mr. Abden Ch. Marak while the name of the petitioner is Shri Aten Marak. However, the police had come looking for the petitioner in connection with the said case. 5. The learned counsel for the petitioner has also submitted that the alleged incident took place on 26.04.2022, however, the FIR was filed after a lapse of 11 days that is on 07.05.2022 inspite of the fact that an eye witness was present on the day when the alleged incident took place, but there was no hue and cry raised by this witness and as such, the occurrence of the said incident is very doubtful. 6. 6. The learned counsel has also raised the issue of age of the alleged victim girl who is stated to be about 14 years old on the day of the incident but her age has not yet been confirmed and as such, in the event she is found to be 18 years old or more, the case of the prosecution under the POCSO Act would not be relevant. 7. The learned counsel has again submitted that the petitioner while preferring this instant application was allowed to go on interim bail by this Court vide order dated 30.09.2022 and in compliance with the Court's order he has accordingly appeared before the I/O and his statement was recorded. In view of this fact, there is no useful purpose for a custodial detention of the petitioner. 8. Further submitting that the petitioner belongs to a reputed family with a sound standing in the society and locality therefore, if enlarged on pre-arrest bail, there is no likelihood of his absconding or fleeing from justice for which an undertaking will be given by the petitioner to abide by any condition to be imposed by this Court. It is therefore prayed that this petition may be allowed and the petitioner may be enlarged on bail in the event of his arrest. 9. Mr. K.P. Bhattacharjee, learned GA appearing for the State respondent has submitted that this is not a fit case to enlarge the petitioner on pre-arrest bail since his conduct has proved that he has not cooperated with the investigating agency since he had absconded and could not be found at the relevant time when the police required to question him and it was only when he was granted interim bail that he appeared before the I/O. 10. Even otherwise, the petitioner has been named as the perpetrator of the crime against the minor girl as could be seen from her statement before the police as well as the one before the Magistrate, in which she has clearly pointed out that it was the petitioner who had committed the despicable act against her not only once but a number of times. 11. 11. The other witnesses who are the relatives of the alleged victim girl particularly the mother has also testified that the petitioner who was seen going in and out of the house a number of times since he is her neighbour and also a relative being the grandfather of the victim's aunt. The statement of the uncle of the victim is also relevant inasmuch as, on the fateful day when he saw the petitioner and the victim in the kitchen he confronted the petitioner who replied that he was sorry, which is an indication of guilt if nothing else. 12. The learned GA has submitted that under the facts and circumstances, the custodial questioning of the petitioner/accused is very much required and in the light of the surrounding circumstances and situation, it would not be proper to enlarge the petitioner on bail at this juncture. It is prayed that this petition may be dismissed as devoid of merit and the interim bail granted be discharged. 13. This Court having heard the submissions of the learned counsel for the rival parties and on perusal of the petition as well as the copy of the case diary which was forwarded to this Court as directed, what is seen is that the FIR was lodged with the allegation that the petitioner has committed an act of sexual assault on the person of the alleged victim girl which act constituted an offence under the relevant provisions of law, the girl being a minor, the Protection of Children from Sexual Offences (POCSO) Act is squarely applicable. Though the age of the alleged victim girl is yet to be determined, records would show that her age was shown to be above 16 years but below 18 years. 14. The statement of the alleged victim girl is very lucid inasmuch as she has narrated the series of events in which the petitioner/accused had committed the offence against her. Though this statement would be subjected to scrutiny at the time of the trial, however prima facie her statement cannot be doubted at this stage. 15. The fact that the petitioner is a matured person and also living in the neighbourhood of the residence of the victim, it would not be proper to expose the alleged victim to the presence of the petitioner during the preliminary period of investigation. 16. 15. The fact that the petitioner is a matured person and also living in the neighbourhood of the residence of the victim, it would not be proper to expose the alleged victim to the presence of the petitioner during the preliminary period of investigation. 16. It is also well settled that for consideration of grant or refusal of bail, one of the factors to be considered is the nature and gravity of the alleged offence as well as the conduct and antecedent of the accused. 17. As submitted by the learned GA the fact that the petitioner had chosen not to cooperate with the investigation during the initial stage of investigation but has done so only on the strength of this Court's order is a reflection of the conduct of the petitioner. 18. On careful analysis of the surrounding circumstances, this Court is of the opinion that the Investigating Officer is to be given a free hand to conduct the investigation and to thoroughly question the petitioner/ accused to unravel the truth. 19. Consequently, this application is found to be devoid of merits, the same is hereby rejected. 20. The petitioner is directed to surrender himself to the custody of the I/O to be questioned in the matter. The interim bail granted is hereby discharged. 21. Petition disposed of. No costs.