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2022 DIGILAW 47 (MEG)

Drolishon Wahlang v. State of Meghalaya

2022-03-15

W.DIENGDOH

body2022
JUDGMENT 1. On 17. 11.2013, an FIR came to be lodged with the Officer Incharge, Nongstoin Police Station, West Khasi Hills District by Shri Khreshland Wanniang to the effect that it was informed that on 16.11.2013 at about 4.30 pm, the appellant herein who was engaged with the construction of the house of Smti Plintidian Wanniang had attempted to rape her minor daughter when, while the mother had gone to the market, he called the minor girl who was in the kitchen, to the bedroom requesting her to bring the nail extracting tool, however as soon as she came, he pushed her on the bed and took off her pant but the\ictim girl shouted and was heard by her sibling who found her. 2. Accordingly, on receipt of the said FIR, the police registered a case being Nongstoin PS Case No 112(11) of 2013 under section 354A(1)(i) IPC read with section 7 and 8 of the POCSO Act,2012 and investigation commenced. The appellant/ accused was then arrested on 17.11.2013. 3. The Investigating Officer on completion of the investigation filed the final report/charge sheet on 30.11.2013 on finding that a prima facie case under section 354A(1)(i) IPC read with section 7 and 8 of the POCSO Act,2012 is found well established against the appellant herein, he was accordingly send up before the Court to stand trial. 4. On the Court of the learned Special Judge(POCSO) taking cognizance of the offence, charges under the relevant sections of law was framed on 07.08.2015 to which the accused/appellant pleaded not guilty and demanded to be tried. 5. The prosecution then produced as many as 8 witnesses who were duly examined before the Court and discharged thereafter. On conclusion of the examination of the prosecution's witnesses, the statement of the appellant under section 313 Cr.PC was then recorded and at the end of it, the appellant was asked as to whether he wishes to adduce evidence from his side to which he refused. 6. Upon hearing the learned counsels for the parties, the learned Special Judge proceeded to pronounce the judgment on 24.04.2019 holding that the appellant is found guilty of the offences alleged and further was sentenced to undergo imprisonment for a period of three years and six months with fine of Rs. 10,000/- (rupees ten thousand) and in default thereof, to undergo an additional three months' imprisonment. 7. 10,000/- (rupees ten thousand) and in default thereof, to undergo an additional three months' imprisonment. 7. Being highly aggrieved and dissatisfied with the said judgment and sentence, the appellant has approached this Court with an appeal under section 374(2) Cr.PC with a prayer to set aside and quash the impugned judgment and sentence. 8. Heard Mr. S.D. Upadhaya, the learned Legal Aid counsel for the appellant who has submitted that the only limited argument in this appeal is directed at the manner in which the learned Trial Court has recorded the statement of the accused/appellant under section 313 Cr.PC, the same not having been recorded with fairness inasmuch as the incriminating materials found in the evidence of the prosecution's witnesses were not put forward to the appellant to enable him to explain the circumstance or to put forth a meaningful defence against the same. 9. It is submitted that the learned Trial Court had put questions to the appellant beginning with the phrase '....It transpired from...' which is an apparent act of bias for instead of confronting the appellant with the incriminating circumstances appearing against him, the questions put to him are only to compel him to confirm the same which is unfair and thus the trial is vitiated in this regard. 10. Citing the case of: - i) 'Man Singh v. State of Uttar Pradesh' (2011) 15 SCC 2016, para 3; ii) 'Ganesh Gogoi v. State of Assam' (2009) 7 SCC 404 , para 20 and iii) 'Ranvir Yadav v. State of Bihar' (2009) 6 SCC 595 , para 10. the learned Legal Aid Counsel has submitted that on the basis of the above mentioned authorities, the impugned judgment is liable to be set aside and the sentence imposed quashed which should result in the acquittal of the appellant herein. 11. Mr. H. Kharmih, the learned Addl. Sr. G.A. in his defence of the impugned judgment has submitted that the statement of the minor victim girl both in the examination-in-chief as well as in her cross-examination could not be shaken and she had narrated the factual events which occurred without any blemish. That there has been complete corroboration of the evidence of the victim girl was also evident on perusal of the depositions of the other prosecution witnesses. That there has been complete corroboration of the evidence of the victim girl was also evident on perusal of the depositions of the other prosecution witnesses. In fact, the evidence of PW-4, the younger sister of the victim girl is that of an eye-witness as she was the one who responded to the shout for help of the victim girl at the time of the occurrence. 12. On the argument of the learned Legal Aid Counsel that the statement under section 313 was not conducted with fairness, the learned Addl. Sr. GA has submitted that on perusal of the statement under section 313, it can be seen that the learned Trial Court has meticulously examined the appellant by putting as many as 20 questions and all the incriminating circumstances appearing against him was brought to his notice, therefore the charge that the same was not done in fairness cannot be accepted on the face of the record. Accordingly, the impugned judgment does not suffer from any infirmity and the same is liable to be upheld it is finally submitted. 13. The argument of the learned counsel for the rival parties have been given due consideration. The facts as stated above need not be reiterated. However, it is noted that the appellant at the time of hearing has chosen to press only on one issue, that is, on the mode and manner of examination of the accused u/s 313 of the Code. Before touching on this issue, it would be proper for this Court to appreciate the evidence rendered and to observe as to whether the impugned order was passed in accordance with law. 14. The victim girl in her evidence as PW1, has narrated the facts as clear as could be as was related in the FIR inasmuch as, she has stated that on the day of the occurrence at about 4:30 PM she was alone at home, while her younger siblings had gone out to fetch water. The mother had gone to the market and the father was at his work place. She was cooking in the kitchen when the accused/appellant entered and asked for the nail extracting tool. The victim girl then went to the bedroom of her mother while the appellant followed her and pushed her on the bed and started to open the cotton pant she was wearing and then tried to rape her. She was cooking in the kitchen when the accused/appellant entered and asked for the nail extracting tool. The victim girl then went to the bedroom of her mother while the appellant followed her and pushed her on the bed and started to open the cotton pant she was wearing and then tried to rape her. As the victim girl screamed loudly and tried to push him, her younger sister came running and the appellant got scared and fled away. Even in her cross-examination, the victim girl did not waver but struck to her version as to how the incident took place. 15. Another material witness whose testimony has to be believed is that of PW 4, the younger sister of the victim girl, who in her deposition before the Court has stated that on the day of the incident, only the victim girl was present in the house as she had gone to fetch water from a place about 30 meters or so. This witness heard the cry of her sister even as she was also asked by a neighbor as to why her sister was crying. When she went to see what happened, she saw the appellant pushing the victim girl on the bed and he was lying on top of her. However, on seeing her, the appellant fled away. This witness further confirmed the fact that at that time, the mother had gone to the market and the father was at his place of work. Again, even in the cross-examination, this witness did not waver from the statement made in the examination-in-chief. 16. Again, the evidence of the mother of the victim girl who was examined as PW 3 is also noteworthy inasmuch as in her deposition she had corroborated the fact that at the relevant time, she had gone to the market and had left her eldest daughter, the victim girl along with two of her younger daughters at home. That she was also aware that the appellant was present at her house since she had engaged him to construct the veranda of the house has also been confirmed by cogent evidence. Therefore, there is substantial corroboration to the narration of the victim girl and her sister(PW4). 17. That she was also aware that the appellant was present at her house since she had engaged him to construct the veranda of the house has also been confirmed by cogent evidence. Therefore, there is substantial corroboration to the narration of the victim girl and her sister(PW4). 17. The fact that the accused/appellant in his statement under section 313 Cr.P.C. has tried to bring up a defence by accusing the victim girl that she had tried to seduce him and also that the mother of the victim girl owes him rupees thirty-seven thousand has not gone well with learned Special Judge who has observed that no evidence in this regard has been produced and the story is difficult to believe. 18. On perusal of the impugned judgment, it is seen that the learned Special Judge (POCSO) has given due consideration to the evidence of all the witnesses and the materials on record and has found credence in the evidence of the victim and the PW 4 to come to a conclusion that an offence under section 7 of the POCSO Act, 2012 has been committed by the appellant. Section 7 reads as follows: - '7. Sexual Assault. - Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.' 19. Holding that the latter part of the provision of section 7 which reads as '....or does any other act with sexual intent which involved physical contact without penetration is said to have commit sexual assault.', has been committed by the appellant, the learned Special Judge has convicted the appellant accordingly. 20. To appreciate the import of the authorities cited by the learned Legal Aid Counsel, section 313 Cr.P.C. may be reproduced as a point of reference. The section reads as under: - '313. Power to examine the accused. 20. To appreciate the import of the authorities cited by the learned Legal Aid Counsel, section 313 Cr.P.C. may be reproduced as a point of reference. The section reads as under: - '313. Power to examine the accused. - (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court- (a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: Provided that in a summons- case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b). (2) No oath shall be administered to the accused when he is examined under sub- section (1). (3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. [(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section].' 21. In the case of 'Ganesh Gogoi' (supra) at para 20 cited by the learned Legal Aid Counsel, the Hon'ble Supreme Court has observed as under: - '20. The provisions of Section 313 are for the benefit of the accused and are there to give the accused an opportunity to explain the "circumstances appearing in the evidence against him". In Basavaraj R. Patil v. State of Karnataka, (2000) 8 SCC 740 ; this Court held that those provisions are not meant to nail the accused to his disadvantage but are meant for his benefit. These provisions are based on the salutary principles of natural justice and the maxim 'audi alteram partem' has been enshrined in them. Therefore, the examination under Section 313 has to be of utmost fairness. These provisions are based on the salutary principles of natural justice and the maxim 'audi alteram partem' has been enshrined in them. Therefore, the examination under Section 313 has to be of utmost fairness. But that has not been done here. This is also a factor vitiating the trial.' 22. In the case of 'Man Singh' (supra) at para 3, the Hon'ble Supreme Court has recorded the submission of the learned counsel for the appellant who has submitted that the statement of the appellant recorded under section 313 Cr.P.C. was completely perfunctory. 23. Again, in the case of 'Ranvir Yadav' (supra), at para 10, the Hon'ble Supreme Court has reproduced the examination (of Ranvir Yadav) under section 313 of the Code to appreciate the same. The same read as follows: '10. In order to appreciate the stand relating to not putting the relevant questions during the examination under Section 313 of the Code, the factual scenario needs to be noted. The examination (of Ranvir Yadav) under Section 313 of the Code, the same reads as follows: "Q. It is stated on the basis of statement of witnesses that on 31-7-1982 at around 8:30 Aa.m. Rameshwar Mistry was killed in Sirjua Diara by firing shot from rifle? What do you have to say about it? A. No, I was falsely implicated. Q. It is also stated that the accused kept the dead body of Rameshwar Mistry, Rajendra Mistry and Bramhdeo Singh on boat and they took Lalit Narayan Singh, Kailash Singh, Challitra Singh, Anil Sahib and Biranchi Das on the boat and killed Kailash Singh by proceeding further and threw the dead body in river by cutting it, what do you have to say? A. Police has implicated me. Safi Alam, S.P. of Khagaria committed murder on 15-4-1980 in the evening by firing shot. My servant has filed case on him. My uncle filed case on police SDO from that day, he started implicating me in the case and started saying me to withdrew the case. The police which comes, states the same thing. I was not allowed to study at that time. I was studying. Due to this reason, I was falsely implicated. Q. I heard the statement of witnesses. Do you have to say anything in defence? A. I write it later on. The police which comes, states the same thing. I was not allowed to study at that time. I was studying. Due to this reason, I was falsely implicated. Q. I heard the statement of witnesses. Do you have to say anything in defence? A. I write it later on. Q. It is also evident that you fired shot from the rifle at the arm of Amin." It is true as contented by learned counsel for the appellant that no incriminating materials were put to the accused under Section 313 of the Code. There is no accusation specifically put in question during examination as quoted above. It only refers to victim of kidnapping. So far as Question 3 is concerned same relates to PW 10. He did not say that he had seen gun fired by the appellant.' 24. What is noticed in the above cases is that the Hon'ble Supreme Court has observed that while recording the statement of the accused under section 313 of the Code, it is imperative that the court puts all the incriminating circumstances appearing in the evidence to him so as to afford him the opportunity to explain his side of the story. It is also said that the whole object of enacting section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give. 25. As submitted, from the records, it is seen that the learned Special Judge has put about 21 questions to the appellant, with the last one asking him as to whether he wishes to adduce evidence from his side to which he declined. What is clear is that in substance, all the incriminating circumstances appearing against him in evidence was conveyed to him to which he has replied to each and every one, meaning that he has understood the questions and has answered accordingly. Therefore, to say that the said examination was not done in accordance with section 313 of the Code and that just because the questions started with the expressing '... It transpired from ...' prejudice is caused to the appellant cannot be fathom by this Court. Therefore, to say that the said examination was not done in accordance with section 313 of the Code and that just because the questions started with the expressing '... It transpired from ...' prejudice is caused to the appellant cannot be fathom by this Court. It is not the case of the appellant that an omission was made by the Trial Court to bring to the attention of the accused/appellant any inculpatory materials for which failure of justice was occasioned by such omission and if it is so, such instance was not brought to the attention of this Court. The fact remains that he was made aware of all that was asked from him and he has replied to each and every question in his own way. 26. In the final analysis, this Court does not find any shortcomings in the said recording of the statement of the appellant under section 313 of the Code and the conclusion and verdict of the learned Trial Court has to be sustained. 27. In the event, this appeal fails, the said is hereby dismissed. 28. Appeal disposed of. No cost. 29. Let copy of this judgment be supplied to the appellant free of cost.