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Small Phawa vs . State Of Meghalaya & Ors on 2 April, 2019

Serial No.11
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG

Crl.A.No.5/2016
Date of Order: 02.04.2019
Small Phawa Vs. State of Meghalaya ors
Coram:
Hon’ble Mr. Justice Mohammad Yaqoob Mir, Chief Justice
Hon’ble Mr. Justice H. S. Thangkhiew, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. SP Mahanta, Sr.Adv with
Ms. A Thungwa, Adv
For the Respondent(s) : Mr. S Sen Gupta, Addl.PP
i) Whether approved for reporting in Yes
Law journals etc.:

ii) Whether approved for publication
in press: Yes

Per Mohammad Yaqoob Mir, ‘CJ’

1. Appellant, vide judgment impugned dated 27.09.2016 has been
convicted for having committed an offence punishable under Section 376
IPC. After hearing the prosecution and accused regarding quantum of
sentence on the same date i.e. 27.09.2016 has been sentenced to 10 years
rigorous imprisonment with fine of Rs.5000/- in default of payment of
fine to undergo one year simple imprisonment. Furthermore, the District
Legal Service Authority of West Jaintia Hills District has been directed to
pay compensation of Rs.1 lakh to the victim under the Meghalaya Victim
Compensation Scheme, 2014. Aggrieved whereof, instant appeal
registered as Criminal Appeal No.5 of 2016 has been filed.

2. Heard Mr. SP Mahanta, learned senior counsel assisted by Ms. A
Thungwa, learned counsel for the appellant and Mr. S Sen Gupta, learned
Addl.PP.

3. The mother of the victim on 02.12.2011 lodged a written report in
Jowai P.S., Jowai against the accused (appellant) alleging therein that on
30.11.2011 at 6:30 PM, her daughter 14 years of age studying in Class-III

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accompanied her brother who had to go to the toilet located outside the
residential house. Grandparents of the victim were residing in a rented
house owned by the accused, victim was also under their care. The victim
used to call the accused Mama (Uncle). The accused on seeing the victim
called her, while reaching near him he forcibly pulled her into the vehicle
(A-Star maroon colour) and took her to one dense jungle opposite side of
Iyngkein Longriang (Wahmyntdu). The accused locked the door of the
vehicle, victim had cried and begged him to release but he did not listen to
her. When she was crying, the accused increased the volume of tape
recorder fitted in the car, so that people would not hear her cries. On
reaching the thick jungle, he attempted to rape the victim who tried to
defend herself, requested for release but was punched on her thigh so
could not defend and the accused raped the victim against her will. After
committing rape, he dropped her back and threatened her not to tell it to
anyone. The victim was scared, shamed and embarrassed as to what
happened to her. Grandparents noticing a change in her, on inquiry
narrated as to what had happened to her. The family members after
several time deliberations in view of the safety of the victim finally
decided whatever the consequences, to report to the police so that the
accused is punished. The report lodged was received by the police station
at 8:30 PM vide GDE No.33 dated 02.12.2011 and registered Jowai PS
Case No. 177(12) 2011 under Section 376 IPC. WPSI I.H. Nongrum was
entrusted the investigation.

4. The investigation of the case culminated in filing the final report
(charge sheet) bearing No.63/2012 before the Fast Track Court, Jaintia
Hills District, Jowai on 04.12.2012 registered as FTC Case No.447 of
2012. On conclusion of the trial, the accused vide judgment of the Fast
Track Court dated 26.02.2015 was acquitted.

5. Aggrieved by the judgment dated 26.02.2015, the State filed the
appeal before this Court registered as Criminal Appeal No.4 of 2015,
same was allowed vide detailed judgment dated 28.04.2016 with the
following conclusion:-

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“In the totality of circumstances of this case, even while
disapproving and reversing the order of acquittal as also while
setting aside the order dated 30.05.2013 as passed by the learned
trial Court on the application under Section 311 Cr.P.C, this Court
is not inclined to record a finding of conviction in this appeal.
Instead, in the interest of justice and for fair opportunity to both
the sides, it appears just and proper and that without further
comment, the matter be remitted to the trial Court for retrial in
accordance with law. In this view of the matter the decisions
referred by the learned counsel have only been indicated
hereinabove and without much dilatation, suffice it to observe for
the present purpose that it would be expected of the trial Court to
take into account and apply the principles therein as per law.
Before concluding, it appears just and proper to observe that the
observations in this judgment on the factual aspects of the matter
are essentially to indicate the compelling reasons wherefor the
order passed by the learned trial Court cannot be approved by this
Court and the matter is being remitted for retrial. The observations
herein shall otherwise not be taken as conclusive findings of this
Court and the entire matter shall be open for reconsideration of
the learned trial Court in accordance with law.
With the observations foregoing this appeal is allowed; the
impugned judgment and order dated 26.02.2015 as passed in FTC
Case No.447 of 2012 [G.R. No.177 of 2011] by the Adhoc Judge,
Fast Track Court, Jaintia Hills District, Jowai is reversed and set
aside; the order dated 30.05.2013 as passed in FTC Case No.447
of 2012 is also set aside; and FTC Case No.447 of 2012 with the
application filed by the prosecution under Section 311 of the
Cr.P.C. is restored for consideration. The learned trial Court shall
reconsider the said application and pass appropriate order
thereupon and shall proceed with the matter thereafter. The
learned trial Court shall also re-examine the Investigating Officer
and may put her relevant question having a bearing on the present
case, of course, with liberty of cross examination to the party
entitled thereto. The learned trial Court shall be expected to deal
with the matter expeditiously and to deliver the final judgment
without much delay, preferably within 4 (four) months of the first
date of appearance of the parties.”

6. The learned Trial Court on receipt of the record registered the
case afresh as Sessions Case No.10 of 2016 vide order dated 27.05.2016
posted the application under Section 311 CrPC for hearing. On
31.05.2016, the learned Trial Court has recorded that Petition No.48 of
2016 under Section 301 CrPC is also filed by the complainant (mother of
the victim girl) to allow her appoint Advocate to conduct the prosecution,
same has been allowed and the appointed Advocate was to act under the

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direction of P.P. Vide order dated 16.06.2016, the application as was filed
before the Fast Track Court (FTC) by P.P. on 03.05.2016 reference of
which is in the concluded part of the judgment of this Court dated
28.04.2016 has been considered. The grandparents of the victim girl Smti.
Moi Dhar (grandmother) and Shri Alphos Syiemlieh (grandfather) were to
be summoned as witnesses, same was not objected to by the learned
counsel for the accused. Shri Alphos Syiemlieh was examined on
29.06.2016 and 30.06.2016. Smti Moi Dhar was also examined on
22.07.2016.

7. As per the order recorded by learned Trial Court on 26.08.2016,
prosecution had filed a petition No.957 of 2016 under Section 311 CrPC
with a prayer that since the case has been remitted by the High Court for
re-trial, therefore, for proper adjudication, it is necessary to recall the
witnesses namely, the victim and Bisal Dhar, same was not objected to by
the defence counsel. As per the learned Trial Court order dated
30.08.2016, Shri A Syiemlieh and Smti. Moi Dhar who were examined
after remand, were treated as PW1 and PW2 instead of PW7 and PW8. On
the same date, R Dhar and B Dhar PW3 and PW4 were also examined and
cross-examined. Prosecution filed one more application bearing petition
No.97 of 2016 for recalling the witnesses namely, (i) Dr. P.M. Pyrtuh,
Medical and Health Officer, Ialong Civil Hospital; (ii) Dr.(Mrs) B
Wankhar, Radiologist (NEIGRIHMS), Shillong; (iii) Smti. B.L.
Pakyntein, MCS EAC (Matti) Shillong; (iv) Constable No.164 Shri R
Lyngdoh (v) Smti. Rispian Syntem Mynso village, West Jaintia Hills
District (vi) Smt. Res Dhar, D/o (L) Sah Dhar, R/o Riatsiatsim, West
Jaintia Hills District, Jowai and; (vii) WPC D Lyngdoh of Women Police
Station, Shillong, same was not objected to by the defence counsel.

8. On 06.09.2016, Dr. P.M. Pyrtuh (PW5) and Dr.(Mrs) B Wankhar
(PW6) were examined and cross-examined. On 14.09.2016, Smti. B.L.
Pakyntein, MCS (PW7) and PW8 (victim girl) were examined and cross-
examined. The victim is shown to have been examined in camera. On
16.09.2016, Women Police Constable D Lyngdoh (PW10) and Constable
164 (PW11) were examined and cross-examined. On the same date, two

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witnesses namely, Smti. Respian Syntem and Smti. Res Dhar were
dropped by the prosecution and at the request of prosecutor, prosecution
evidence was closed. In order to avoid confusion on re-trial, prosecution
examined as many as 11 witnesses.

9. The accused was examined in terms of Section 313 CrPC on
19.09.2016. The incriminating circumstances as appeared in the
prosecution evidence were put to him. He has denied complicity in the
crime. Against the circumstances as were put to him, he has answered
mostly as under:-

“It is not true.”

However, in addition thereto vis-à-vis Circumstance No.3 he has
said “I have never met the victim or stalked as alleged”. Regarding
circumstance No.5, he has said “Yes I have made a press statement that
the girl came willingly with me”. Circumstance No.6, he has said that “it
is the victim’s family only who defamed him and his family”. To
circumstance No.16, he has said that “we were having kwai and drank
pepsi in the vehicle so why she could cry”. To circumstance No.22 he has
said as under:-

“It is not true, after having kwai and pepsi I dropped her near her
house only”.

Finally, has said that he has not done anything, he has not
committed the offence as alleged, his mobile phone and C.D. players are
with the police, he has recorded the conversation which he had with the
victim.

10. In defence he has produced five witnesses which include Smti.
Respian Syntem and Smti. Res Dhar, who though were prosecution
witnesses but were dropped by the prosecution as reflected in the interim
order of the learned Trial Court dated 16.09.2016. Finally, the
accused/appellant has been convicted and sentenced vide impugned
judgment dated 27.09.2016.

11. The contentions of the learned counsel for the appellant are:

(i) The victim girl in fact was major she has not been proved to be minor;

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(ii) The case against the accused/appellant is the outcome of venom.
Victim wanted to marry the accused which could not happen;

(iii) Re-trial of the case has prejudiced the accused because all gaps and
lacunas have been filled up and;

(iv) Right to fair trial has been infringed.

12. In support of the aforesaid contention, learned counsel for the
appellant has relied upon the following judgments:

(1) (2011) 8 SCC 300

(2) (2013) 5 SCC 741

(3) (2014) 2 SCC 401

(4) (2004) 4 SCC 158 and

(5) (1999) 6 SCC 172

13. Learned Addl.PP in opposition to the contentions of learned
counsel for the appellant contended that (i) The victim girl is proved to
have been minor on the date of occurrence. Deposition of witnesses and
medical report support the same; (ii) Appellant and his counsel has
actively participated in the trial. The trial has been conducted in a fair
manner none of the rights of the appellant has been violated; (iii) The
theory that the victim girl wanted to marry the appellant is an
afterthought, which has got no foundation at all nor same is proved; (iv)
The appellant deserves severe punishment, he has ravished a minor girl
and destroyed her psychologically and mentally and; (v) Finally, prayed
for dismissal of the appeal.

14. The first important issue as arise for consideration is as to whether
victim girl at the time of occurrence i.e. on 30.11.2011 was minor.
Contention of learned counsel for the appellant that the certificate Ext.6 is
a birth certificate issued by Dr. S Rani, Medical Superintendent, Dr.
Norman Tunnel Hospital, Jowai but the contents of the said certificate
have not been proved. Neither the Doctor who has issued the birth
certificate has been produced as witness nor any one from the hospital has
been produced as a witness so as to prove that the certificate issued is

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based on the record of the hospital so cannot be relied upon. As per the
certificate, date of birth of the victim girl is shown as 23.10.1996 but has
not been proved. Furthermore, it is an admitted fact that the victim girl
was pursuing her studies in Class-III at H.K. Singh School, Jowai. The
Investigating Officer has not made any effort for collecting age proof
from the school nor had collected during investigation record from Dr.
Norman Tunnel Hospital, Jowai. As a matter of fact, Investigating Officer
has committed lapse in not procuring the said record, but on the strength
of evidence otherwise brought on record, victim is proved to be minor.

15. What the prosecution witnesses have stated regarding age of the
victim is as follows:-

(i) PW1 grandfather of the victim examined on 30.06.2016 has
stated that at the time of occurrence, the victim was below 15
years of age and studying in Class-III at H.K. Singh School,
Jowai. In the cross-examination, he has qualified by stating that
he does not remember the date of birth of his grand-daughter
(victim) but she was born in the year 1996 at Mission Hospital,
Jowai which is known as Norman Tunnel Hospital. The mother of
the victim applied for birth certificate (Ext.6).The victim was
staying with him (witness) and his wife, right from 3 years of her
age, he (witness) and his wife used to take care of her including
her schooling.

(ii) PW2 grandmother of the victim examined on 22.07.2016 has
stated that her grand-daughter (victim) was born at Mission
Hospital, Jowai but cannot remember her date of birth.

(iii) PW3 Mother of the victim examined on 30.07.2016 in the
cross-examination has made it clear that her daughter (victim) was
born on 23.10.1996 at Mission Hospital, Jowai. In the year 2011,
she was studying Class-III in H.K. Singh School, Jowai.

(iv) PW6 Dr. B. Wankhar examined on 06.09.2016 has stated that
she was posted at Civil Hospital, Shillong as Junior Specialist in
the Department of Radiology being specialized Radiologist. In the

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year 2014, she has joined NEIGRIHMS as Assistant Professor.
Further, she has stated that the case of the victim girl was referred
by Dr. P.M. Pyrtuh for age determination. She (witness) has sent
the girl for X-ray which was conducted, X-ray report No.774 was
prepared. Based on the X-ray report, the findings are that the bone
age of the girl is more than 14 years 3 months and less than 15
years 8 months. Ext.3 is the report prepared by her (witness) and
Ext.3(1) is her signature.

In the cross examination she has stated that the girl was referred
for age determination, same was done as per standard text book.
For age determination, any bone part of the body can be referred
for X-ray depending on the age mentioned in the requisition form
or as referred by the doctor. For determining the age of a person
between 14 to 15 years, the elbow and wrist bones and joints are
usually being X-rayed.

(v) PW7 Ms. B Pakyntein, MCS examined on 14.09.2016 was
serving as Extra Assistant Commissioner in the year 2010 and
was initially posted at Jowai till June 2012. On 07.12.2011, she
has recorded the statement of the victim. In the cross-examination,
she has stated that the girl was a minor she had allowed her
relatives to be present at the time of recording her statement.

(vi) PW8 (victim) examined on 14.09.2016 has stated in the cross-
examination that her date of birth is 23.10.1996.

(vii) PW9 Ibarisha H. Nongrum (Investigating Officer) examined
on 15.09.2016 has stated in the cross-examination of defence
counsel that she had sent the victim girl for age determination.

16. The deposition of the above witnesses PWs 1, 2, 3, 6, 7, 8 and 9
clearly proved that on the date of occurrence i.e. 30.11.2011, the victim
was around 15 years of age. The credibility of these witnesses has not
been impeached in any manner. Nothing on record has been produced by
the defence during trial so as to prove that the victim girl was major at the
time of occurrence.

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17. The accused on entering upon defence, no doubt has produced
five witnesses but they have not in any manner proved that the victim girl
was a major.

18. The prosecution on its own independent footing has proved that
the victim girl at the time of occurrence was a minor. Therefore, the
contention of learned counsel for the appellant that the victim at the time
of occurrence was not a minor is only to be rejected.

19. Next contention of learned counsel for the appellant is that the
victim girl wanted to marry the accused which could not happen. The
accused and victim were having some affairs, therefore, case has been
cooked up so as to wreck vengeance.

20. The contention as rightly projected by learned Addl.PP is an
afterthought theory. Such a contention has got no basis anywhere. During
examination and cross-examination of the witnesses, such a
suggestion/question in this context has not been put. It is a settled law that
when a defence is to be set up, seeds were to be sown for the same during
examination and cross-examination of prosecution witnesses. Then in the
examination under Section 313 CrPC such a defence was to be disclosed
i.e. the accused could state that it is a case of vengeance instead he has
simply stated that the family of the victim tried to defame him but in the
process has also divulged while answering to Question No.5 as put to him
during examination under Section 313 CrPC, that he has made a press
statement that the girl went willingly with him.

21. Even the five defence witnesses as produced by the accused have
nowhere stated that the victim girl wanted to marry the accused or for that
matter the accused had any affair with the victim. The contention is totally
without any foundation simply an afterthought, unacceptable in absence
of any proof having been produced before the Trial Court during trial.
This contention is without any merit as such, rejected.

22. Learned counsel for the appellant tried to project indirectly that
the victim girl had accompanied the accused out of her own will. This
contention of learned counsel for the appellant is not worth to be accepted.
Even if accepted still insignificant because her consent was immaterial.

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She is proved to be a minor therefore accused cannot be absolved from
criminal liability of rape. In this behalf it would be advantageous to quote
the statement of the victim as has been recorded by the learned Trial Court
(Sessions Court) on 14.09.2016, as under:-

“I know of the case, as I am the victim. The incident happened on
30th.11.2011.

On the day of the incident I was at home and at that time I was
studying in class III at H.K. Singh School and on that day there
was no School as it was a Holiday. During this period I was
staying with my grandparents Pw1 Pw2 Shri at
Riatsaitsim locality Jowai in a Rented House.

On that day around 6-6:30 PM I was at home, my brother Shri
Bishal Dhar asked me to accompany him to the Toilet which I did,
as the Toilet is situated outside the House and is about 20 to 30
feet, and the Place where the Toilet is situated is very dark as
there are lights on the Toilet, while I was waiting outside for my
brother who is in the Toilet, Accused Small Phawa called out to
me by my name and so I went to him, on reaching near his car the
door of the vehicle from the Driver’s side was opened and there
was loud music playing on inside the car. The Accused pulled me
from my hand and pushed me inside the vehicle, and then
Accused entered the car and locked doors, I got scared and tried to
open the door of the car but I could not as the Accused had locked
the doors. The accused then started the vehicle and drove
downwards from the House but I could not tell the exact name of
the place we reached as it was quite dark. I started crying and
begged for forgiveness from the Accused if I had done anything
against him. I then struggled with the Accused inside the car and
tried to open the door of the vehicle. I struggled with the Accused
as Accused was pulling down my pants and I was fighting and
resisting him, and then Accused punched me on my left thigh and
as I could no longer fought him, Accused pulled down my pants,
then Accused pulled down his trouser and forcibly parted my
Thighs and forcibly inserted his Penis inside my vagina. I cried as
it was hurting and I was in pain but I could not fight with the
Accused, I could not remember how long Accused was Raping
me. After Raping me Accused pulled up his pants, and then the
Accused drove the vehicle and dropped me back halfway the
name of the place I cannot remember. Reaching that place
Accused opened the door of the vehicle and pushed me out of the
Car. Before pushing me out of the car, the Accused offered me
Rs.5000/- saying that I should not inform anyone of the incident. I
refused to take the money and Accused Threatened to kill me if I
inform anyone of what he did to me, and drove away in his car.

My brother Bishal and Accused brother whose name is Embok
Phawa found me sitting and crying my brother asked me why I

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was crying but I just kept silent. Then my brother helped me up
from where I was sitting and we went Home, and while on the
way home my brother told me that everyone was worried not
finding me.

On reaching Home, my grandparents asked where I have been and
what happened but I remained silent, as I was still feeling the pain
and was scarred to tell them of what happened. I did not tell
anyone of what happened on that evening as Accused had
threatened to kill me. My mother Smt. Rita Dhar who was staying
at that time at Lad Rymbai was informed but I do not know who
informed her. Next evening after the day of the Incident my
mother came to Jowai, but I did not tell her anything in Jowai. My
mother then took me to Lad Rymbai along with others relatives
who accompanied me, and there in my mother’s house at Lad
Rymbai I narrated the Incident to my mother. I remember that my
mother had also taken me to the Police Station, and I was
examined by the Police, and I was also taken to the Hospital, I do
not remember giving any statement to Magistrate, but I remember
attending the Fast Track Court.

XXX: Shri S. Chakravarty, Ld. Advocate for the Accused
Small Phawa translated by Shri R.B. Hinge, Advocate
My date of birth is on 23.10.1996, and I was born at Jowai. Today
I have came from the village of my father at Karimganj Assam
and reached Lad Rymbai at 4:00 AM, and thereafter I came to this
Court, I do not remember what time I reached Jowai from Lad
Rymbai in the Noon time. I came from Karimganj along with my
parents with a nigh super Bus. I was not tutored by anyone; the
incident happened to me.

On the evening of that day Accused called me by name. The
vehicle of the Accused on that day was red colour, it was not dark
red or maroon or bright red. The Accused on that day parked his
vehicle on the road and not in a parking space. I do not know the
distance from the place where I was standing waiting for my
brother and the place where the Accused was parking the vehicle
on that day.

It is a fact that Accused called me from where he was standing
with the vehicle.

The Accused pushed me inside the car from the Driver’s side to
the adjacent seat. At that time there was no one in the Road. The
Accused had parked his car near the shop of his mother which
was opened as I could see from the dark Tinted glasses of his
vehicle and I could see people in his mother’s shop but those
people could not see me inside the vehicle due to the dark Tinted
glasses.

I did raised an alarm when Accused pushed me inside his vehicle
but no one Heard me. I do not know the exact distance the place
where Accused parked his vehicle and the distance from his

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mother’s shop. When Accused drove the car I asked him why He
is doing this to me but Accused did not answer and kept the music
inside the vehicle blasting. The Accused Raped me inside the
vehicle I remember I was wearing salvar on that day.
It is not a fact that on the day time of the date of the incident I had
gone with my brother and the Accused person to Phramer.
My mother came to Jowai from Lad Rymbai in the Evening of
1st.12.2011, and my mother took me to Lad Rymbai on the same
night of 1st.12.2011 and was accompanied by my eldest aunty
Smt. Yoowanka Dhar, uncle, husband of my eldest aunty who is
known as Kai and Yiang and my other grandmother sister of my
grandmother Smt. Res Dhar. I narrated the incident to my mother
only at Lad Rymbai house and not and not to my father. My father
and mother stayed and lived together at Lad Rymbai.
When I reached home on that night my grandparents were angry
at me and scolded me as to why I reached Home late and without
informing them of my going out.

The Police took me to the Hospital accompanied by my mother, I
did not see the Accused in the Hospital. I do not remember now
after my medical Examination in the Hospital whether I had gone
back to Jowai or Lad Rymbai. After informing the Police of the
Incident I stayed with my mother at Lad Rymbai and never return
to stay in the Rented House of the Accused at Jowai.
I did not went missing while staying at Lad Rymbai. I was taken
by aunty Smt. Res Dhar to her village at Nartiang, and my
grandfather not knowing this, filed a missing report.
After the incident which happened to me, I attended School at
Faith School, but I saw the Accused around the school and I got
scared and informed my grandmother, and they told me to stop
going to school.

I am now married and stayed in my paternal aunties at Karimganj,
I got married in the year 2015.”

23. The said statement of the victim girl in any manner has not been
impeached. She has given correct and vivid position to which she has
been subjected to. Small discrepancies in the statements of PWs 1, 2 and 3
(grandparents and mother) regarding actual occurrence are trivial because
it is the victim who alone knows what happened to her. She has narrated
the same in a sequential manner. Her statement as quoted above is fully
corroborated i.e. commission of rape is supported by PW5 Dr. P.M.
Pyrtuh who has qualified in her statement that Ext.2 is the medical report,
torn hymen can be due to many other reason but in this case probability
that the hymen was torn otherwise than rape is very low. The accused in

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his statement under Section 313 CrPC has made it clear that the victim
girl accompanied him and they had kwai and drank pepsi in the vehicle
therefore, there was no reason for the victim to cry. In addition, he has
also stated in answer to Circumstance No.5 that he had made a press
statement that the girl went willingly with him. All the circumstances tend
to show that the accused has committed the crime of rape.

24. The another contention that the re-trial has prejudiced the accused
has no force because, judgment of this Court dated 28.04.2016 has not
been challenged on the ground that it may cause prejudice or re-trial may
have trapping of filling up the gaps and lacunas. Once re-trial is ordered,
the Trial Court had to proceed with the trial as has been done. The
accused and his counsel have actively participated in the trial. During
trial, nowhere it has been agitated at any stage that any of the right of the
accused was infringed. The trial proceedings as recorded by the learned
Trial Court as referred to above in paras 8 to 10 of the judgment clearly
indicate as to how the defence has been given fair and reasonable
opportunity and as to how he has been given fair treatment, witnesses
have been examined and cross examined properly. It was nowhere
mentioned that any of the witnesses during examination or cross-
examination has made any improvement or has made any substantial
deviation giving rise to any prejudice. Now, after the accused is convicted
and sentenced, to contend that by re-trial gaps and lacunas have been
filled up is an otiose theory only to be rejected.

25. Learned counsel has projected that some of the witnesses in
examination and cross-examination during re-trial have made certain
deviations from the statement which were recorded by the FTC during
earlier trial. Learned counsel has also given summary of deviation but on
closer look to the same, the deviations are not such to have any impact so
as to impeach the credibility of the witnesses. That apart, learned defence
counsel during cross examination of the witnesses should have confronted
the witnesses with those depositions so as to give chance to the witnesses
to explain such deviation. Once the defence counsel has not confronted
the witnesses with the depositions which they had made earlier during

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trial held by FTC (Fast Track Court), therefore, such a contention cannot
be accepted. Even otherwise those deviations are not such to shake the
credibility of the witnesses or to give lie to the prosecution.

26. The principle of fair trial as it is contended by the learned counsel
for the appellant has been violated is totally unfounded. Principle of fair
trial has been strictly followed at all stages of the re-trial, defence has not
been deprived of setting up the defence or from cross examining the
witnesses. The defence has also produced five witnesses who have been
examined. In this behalf for appreciating the matter regarding adherence
to the principle of free and fair trial, it would be advantageous to refer to
the judgments as relied upon by the learned counsel for the appellant in
the case of (i) Natasha Singh v. Central Bureau of Investigation: (2013) 5
SCC 741, (ii) J. Jayalalithaa ors v. State of Karnataka ors: (2014) 2
SCC 401, (iii) Zahira Habibulla H. Sheikh anr v. State of Gujarat
ors: (2004) 4 SCC 158 and State of Punjab v. Baldev Singh: (1999) 6
SCC 172.

27. Para 16 of the judgment reported in (2013) 5 SCC 741 is
advantageous to be quoted:

“16. Fair trial is the main object of criminal procedure, and it is
the duty of the court to ensure that such fairness is not hampered
or threatened in any manner. Fair trial entails the interests of the
accused, the victim and of the society, and therefore, fair trial
includes the grant of fair and proper opportunities to the person
concerned, and the same must be ensured as this is a
constitutional, as well as a human right. Thus, under no
circumstances can a person’s right to fair trial be jeopardized.
Adducing evidence in support of the defence is a valuable right.
Denial of such right would amount to the denial of a fair trial.
Thus, it is essential that the rules of procedure that have been
designed to ensure justice are scrupulously followed, and the
court must be zealous in ensuring that there is no breach of the
same. …..”

28. Para 28 of the reported judgment in (2014) 2 SCC 401 is
advantageous to be quoted:

“28. ….. Thus, fair trial must be accorded to every accused in the
spirit of the right to life and personal liberty and the accused must
get a free and fair, just and reasonable trial on the charge imputed
in a criminal case. Any breach or violation of public rights and

14
duties adversely affects the community as a whole and it becomes
harmful to the society in general. In all circumstances, the courts
have a duty to maintain public confidence in the administration of
justice and such duty is to vindicate and uphold the “majesty of
the law” and the courts cannot turn a blind eye to vexatious or
oppressive conduct that occurs in relation to criminal
proceedings.”

29. Paras 36 and 40 of the reported judgment in (2004) 4 SCC 158 is
also advantageous to be quoted:

“36. ….. Fair trial obviously would mean a trial before an
impartial Judge, a fair prosecutor and atmosphere of judicial calm.
Fair trial means a trial in which bias or prejudice for or against the
accused, the witnesses, or the cause which is being tried is
eliminated. If the witnesses get threatened or are forced to give
false evidence that also would not result in a fair trial. The failure
to hear material witnesses is certainly denial of fair trial.

40. The fair trial for a criminal offence consists not only in
technical observance of the frame and forms of law, but also in
recognition and just application of its principles in substance, to
find out the truth and prevent miscarriage of justice.”

30. Para 28 of the reported judgment in (1999) 6 SCC 172 is
advantageous to be quoted:

“28. It must be borne in mind that severer the punishment, greater
has to be the care taken to see that all the safeguards provided in a
statute are scrupulously followed.

….. ……

Indeed in every case the end result is important but the means to
achieve it must remain above board. The remedy cannot be worse
than the disease itself. …..”

31. While concluding for the reasons and circumstances as stated
above, inescapable conclusion is that the victim girl has been fully proved
to have been minor on the date of occurrence. It is also proved that the
accused had taken her in his car and then sexually assaulted her. Right of
proper trial and fair trial by no means has been offended. Therefore, there
is no scope to interfere with the judgment impugned. Learned Trial Court
on proper appreciation of evidence has rightly convicted the appellant and
sentenced him, however in default of fine of Rs.5000/-, imprisonment of
one year is excessive therefore not reasonable.

15

32. Appeal is found to be devoid of merit. The judgment impugned
pursuant to which accused has been convicted and order impugned,
pursuant to which accused has been sentenced to undergo rigorous
imprisonment of 10 years with fine of Rs.5000/- and in default of
payment of fine to undergo one year simple imprisonment with slight
modification i.e. in default of fine to undergo instead of “one year”, one
month of simple imprisonment, is upheld.

33. Appeal accordingly dismissed.

34. Copy of this judgment be supplied to the accused free of cost.

(H. S. Thangkhiew) (Mohammad Yaqoob Mir)
Judge Chief Justice
Meghalaya
02.04.2019
“Lam AR-PS”

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