Meghalaya High Court
Shri. June Bordoloi @ Jun vs . State Of Meghalaya. on 11 February, 2021
Equivalent citations: AIRONLINE 2021 MEG 10
Author: W. Diengdoh
Bench: W. Diengdoh
Serial No. 01
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
Crl. A. No. 12 of 2019
Date of Decision: 11.02.2021
Shri. June Bordoloi @ Jun Vs. State of Meghalaya.
Coram:
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. S.D. Upadhaya, Legal Aid Counsel
Ms. A. Synrem, Adv.
For the Respondent(s) : Mr. N.D. Chullai, AAG. with
Ms. R. Colney, GA.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
1. The learned Sessions Judge, Ri-Bhoi District, Nongpoh having taken up the trial of the case against the appellant herein as the accused in Sessions Case No. 17 of 2018 has finally disposed of the same vide Judgment dated 09.04.2019, whereby the accused/appellant was convicted of the charges against him and was sentenced to undergo rigorous imprisonment of one year for the offences committed under Section 354 A (1)(i) IPC and concurrently to also undergo rigorous imprisonment for three years and six months for offences committed under Sections 376/511 IPC, along with fine of ₹ 5000/- (Rupees five thousand) only and in default thereof will entail a further simple imprisonment of one month.
2. The genesis of the matter was an FIR lodged by one Smti. Lakshmi Maya to the effect that on 19.02.2018 at around 2.30 P.M or so, the victim girl (who is the daughter of the Complainant) left home for her tuition at Umiam Block II, but on reaching the old paddy field of MeECL, the accused person forcefully pulled and dragged her to the jungle by covering her mouth and 1 attempted to rape her, but somehow she managed to escape and reported the matter to her family.
3. On receipt of the complaint, the police proceeded with the formalities and finally arrested the accused person who was remanded to custody from time to time. The Charge Sheet was also filed by the Investigating Officer on 29.05,2018 stating to the effect that a prima facie case under Sections 354 A(1)(i)/376/506 and 511 IPC was made out against the accused persons and a list of about eight witnesses was submitted to prove the case of the prosecution.
4. On being committed to the Court of the learned Sessions Judge, the Court framed charges against the accused person under sections 376/511/354 A(1)(i) and 506 IPC and proceeded with the trial, where seven prosecution witnesses were examined.
5. The learned Sessions Judge then proceeded to examined the accused under section 313 Cr.P.C. and on being asked as to whether he would like to examine any witnesses from his side, the accused declined and thereafter, the learn Sessions Judge proceeded to hear the argument of the parties.
6. From the impugned judgment, it is seen that the learned Sessions Judge has relied mostly on the evidence of the victim (P.W.3) and on coming to a finding that her evidence was duly corroborated by the other prosecution witnesses, has concluded that the accused/appellant was guilty of the offences under sections 354 A (1)(i)/376 and 511 IPC respectively as stated above.
7. The convict/appellant not being satisfied with the said impugned judgment has approached this Court with an appeal under Section 374(2) Cr. P.C. with a prayer that the said impugned Judgment and Order dated 09.04 2019 be set aside and quashed.
8. It may be mentioned that the appellant not being able to afford to engaged a counsel of his own, has been accorded legal aid by the High Court 2 Legal Services Committee and accordingly, Mr. S.D. Upadhaya, learned Legal Aid Counsel has pleaded the case of the appellant herein.
9. In his argument, Mr. Upadhaya has, at the outset submitted that the learned Trial Court has committed a grave error while passing the impugned judgment, inasmuch as, the sentence was passed without reference to Section 428 Cr.P.C. and without an order to set off the period of detention already undergone by the appellant.
10. As to the examination of the learned Sessions Judge under Section 313 Cr.P.C., the learned Legal Aid Counsel has submitted that from the records, it is seen that the questions were asked in the Khasi language, whereas the appellant is a native of Marigoan district of Assam and his mother tongue is Assamese. The Court has also not put any questions pointing out the incriminating materials in evidence against the accused/appellant, but has instead started each question with the words "...It transpired that ...", which exhibited the pre-determined mind of the Court to convict the appellant at any cost.
11. Pointing to the evidence on record, the learned Legal Aid Counsel has further submitted that the learned Court has failed to take into consideration the discrepancies in the prosecution witnesses, which would only lead to the acquittal of the appellant. The evidence of P.W.1 when she said that she does not know the accused/appellant standing in the dock was contradicted by the statement made in the FIR when she clearly stated that the name of the accused is June Bordoloi. Again, the P.W. 2 (Miss Sonal Singh) who is the friend of the victim in her deposition has stated that she received a call from the victim who called her over the mobile and when she reached the place she saw the victim was covered with dust and dirt and she was not able to breathe properly and was also not in a condition to speak. It was only after having some water she was able to talk. This statement was again contradicted by the victim herself when P.W. 3 stated that after freeing herself from the accused, she ran for quite a distance from the place of occurrence and there she met one girl 3 and asked her for help and she was offered a glass of water and then the victim asked her to call up her friend from her mobile phone.
12. Yet another contention raised by the learned Legal Aid Counsel is that the prosecution has failed to produce the clothes of the victim and the mobile phone used was also not produced. Therefore, there is no evidence that there was any use of force by the accused/appellant which could be termed as an attempt to commit rape. In fact, it is submitted that from the evidence of the victim where she has stated that in order to free herself from the accused, she was compelled to hit him with a stone and thereafter, she ran away from the place of occurrence only goes to show that no attempt to commit rape was made out.
13. In support of his case, the learned Legal Aid Counsel has cited the following judgments:
i) Man Singh v. State of Uttar Pradesh: (2011) 15 SCC 216, paragraphs 5 & 6;
ii) Ganesh Gogoi v. State of Assam: (2009) 7 SCC 404, paragraph 20;
iii) Ranvir Yadav v. State of Bihar: (2009) 6 SCC 595, paragraphs 8-11;
iv) Takeshwar Sahu v. State of Bihar: (2006) 8 SCC 560, paragraphs 9, 22, 27, 36 & 59 and
v) Aman Kumar & Anr. v. State of Haryana: (2004) 4 SCC 379, paragraphs 10, 11, 13 & 15.
14. Mr. N.D. Chullai, learned AAG in support of the impugned judgment and order has submitted that this case revolves round the testimony of the victim who has clearly stated in her deposition before the Court, particularly at paragraphs 6 and 7 of her statement of evidence, wherein she said that while she was on her way, she saw the accused person smoking and standing near the jungle side and as she crossed him, he grabbed her from behind and dragged her to the nearby jungle. It is also stated that the accused attempted to rape her and even tried to kill her. It is also submitted that this particular evidence of the victim has not been able to be shaken in the cross-examination.
415. The learned AAG has further submitted that the learned Sessions Judge in the impugned judgment has referred to this piece of evidence and other aspect of the facts and circumstances of the case involving the accused/appellant and by relying on a number of relevant judgments has come to a just and fair conclusion that the accused is indeed guilty of the offences alleged against him.
16. The learned AAG in support of his contentions and submissions has also cited a number of decisions as under: -
i) State of Punjab v. Major Singh: AIR 1967 SC 63, paragraphs 3 & 4;
ii) Chaitu Lal v. State of Uttarakhand: (2019) SCC Online SC 1496, paragraphs 9 & 11;
iii) Ramkripal v. State of M.P: (2007) 11 SCC 265, paragraph 8;
iv) Shekara v. State of Karnataka: (2009) 14 SCC 76, paragraph 9;
v) State (Delhi Administration) v. Dharampal: AIR 2001 SC 2924 and
vi) Fainul Khan v. State of Jharkhand: (2019) 9 SCC 549.
17. On an appreciation of the submission and contentions of the learned counsels for the rival parties, the facts and circumstances need not be reiterated as the same has been illuminative enough from the narrative noted above. However, what is required to be considered by this Court is whether the learned Trial Court has considered all aspects of the matter while coming to the findings it has in the impugned judgment and order?
18. It need not be reminded that the life and prospective future of a person is at stake here and it is therefore incumbent upon the Court, particularly in criminal cases to adhere to the time tested principle of criminal jurisprudence that conviction will follow only if there is evidence to prove the case of the prosecution beyond reasonable doubt. Of course, it is also well settled that the accused must be presumed innocent until he is proved to be guilty and the onus of the prosecution never shifts.
519. The learned Trial Court has convicted the accused/appellant by relying mainly on the evidence of the victim, which is said to have been duly corroborated by the other witnesses examined in the case.
20. Let me analyze the evidence of the victim who was examined as P.W. 3 has deposed that when she was on her way for tuition, the accused/appellant who was standing near the jungle came from behind her and gagged her by the mouth and dragged her to the jungle where he attempted to rape her and even tried to kill her. Though she tried to free herself, the accused threw her to the ground and she cried for help, but the accused gagged her mouth with his hand so that she could not shout for help. She also deposed that at that time she was holding her mobile phone, she managed to call her friend Sonal Singh to help her. Thereafter, in order to free herself, she was compelled to hit the accused with a stone and ran away from there and after reaching quite a distance, she met one girl and asked her for help for which she was also offered water. She then told the girl to call up her friend Sonal Singh from her mobile phone as she was not in a position to speak properly. On her friend getting the call, she came to the place and was narrated about the incident.
21. The above, in essence is the fulcrum on which the whole case of the prosecution lies and the learned Sessions Judge has relied on the said deposition of the victim to come to a finding that the accused had sexually assaulted the victim and has therefore, concluded that he is guilty of the offences punishable under Section 354 A(1)(i) IPC as well as Sections 376/511 IPC.
22. But an objective analysis of the evidence of the prosecution, especially that of the said victim (P.W. 3) would revealed that there are a number of loopholes and her deposition is self-contradictory, an instance of which can be seen from her statement when she said that she was unable to do anything as the accused had gagged her mouth very tightly, but she was still able to called up her friend, the P.W. 2 from her mobile (without any attempt by the accused to stop her), which appears highly improbable under the circumstances.
623. Later, she also said that she was able to free herself from the accused by hitting him with a stone and she was also able to ran away from the place of occurrence, where at some distance, she met one girl who offered her some water and requested her to call up her friend (P.W. 2) from her own mobile, her friend on receipt of the call came running towards her. Here too, the contradiction is apparent as the said girl was not brought in as a witness and the mobile phone used was never seized by the police nor was it exhibited by the prosecution at the trial. In such a situation, the version of the victim cannot be solely relied upon. Even otherwise, if the victim is to be believed that she was able to free herself and ran away, then the question of the accused forcing himself on the victim in an attempt to rape her does not seem likely either.
24. As noticed above, on careful examination of the deposition of the victim, it appears that there are discrepancies which are clearly apparent as far as the accusation of attempt to rape is concerned. According to the version of the victim, the accused/appellant attempted to rape her and even tried to kill her and in this process, he pushed her to the ground. However, as stated above, the victim still manages to call up her friend from her mobile phone and finally, she was able to hit the accused/appellant with a stone and ran away from the place of occurrence. This, has cast a big doubt on the veracity of the victim's version of the incident and consequently, the benefit of doubt should be given to the accused.
25. It would be worthwhile to refer to the case of Aman Kumar & Anr. v. State of Haryana: (2004) 4 SCC 379 wherein at paragraphs 8 & 9, the Hon'ble Supreme Court has held as under: -
"8. The plea relating to applicability of Section 376 read with Section 511 IPC needs careful consideration. In every crime, there is first, intention to commit, secondly, preparation to commit it, thirdly, attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. If the attempt fails the crime is not complete, but law punishes the person attempting the act. Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those 7 punishable with death. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded.
9. A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word 'attempt' is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it; and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation."
26. Again in paragraph 11 of the said Aman Kumar case (supra), the Hon'ble Supreme Court has observed as follows: -
"11. In order to find an accused guilty of an attempt with intent to commit a rape, court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his 8 passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect."
27. The case of Chaitu Lal v. State of Uttarakhand: 2019 SCC Online SC 1496 cited by the State Respondent would have no relevance in the facts and circumstances of the case under scrutiny, since it has not been established that the appellant herein had used criminal force in an attempt to commit rape on the victim, to the extent of repetition, the victim herself has stated that she had hit the accused/appellant with a stone before he could do anything to her.
28. In the light of the above observations, this Court is of the considered view that the learned Sessions Judge has failed to properly appreciate the evidence which is apparent that the prosecution has not succeeded to discharge the onus of burden of proof to allow the Court to come to a finding of guilt beyond reasonable doubt.
29. Therefore, under the circumstances, this Court finds that the accused/appellant cannot be convicted for an offence under Section 376 read with Section 511 IPC. The conviction and sentence on this account is hereby set aside and quashed and consequently reversed. However, the evidence would support the fact that the accused/appellant is guilty of the offence under Section 354 IPC for outraging the modesty of a woman.
30. In view of the above, this Court need not dwell on the aspect and issue of the import of Section 313 Cr.P.C as far as the mode and manner of examination of the accused/appellant is concerned and in this regard, the reliance of the parties on relevant decisions in this subject need not be taken into account.
31. From the record, it appears that the appellant is in custody since the day of his arrest, that is, from 24.02.2018 and is still under custody till date which 9 would approximately be almost about two years, having been convicted firstly for the offence under Section 354 A(i) IPC to undergo rigorous imprisonment for a period of 1(one) year. It is a matter of academics that the accused/appellant may be considered to have completed the sentence as far as conviction under the aforesaid offence is concerned, and as such, no effective order of reversal on this score would help the case of the appellant.
32. However, having been found not guilty for the offence under Section 376/511 IPC for which he was to undergo a sentence of three years and six months' rigorous imprisonment, with fine of ₹ 5,000/- (Rupees five thousand) only and in default thereof to suffer simple imprisonment of one month, the appellant is entitled to be set at liberty at this juncture.
33. Accordingly, this appeal is partly allowed as indicated above. The appellant is directed to be released immediately, if not required to be in custody in connection with any other case.
34. This Court place on record its appreciation for the services rendered by the learned Legal Aid Counsel, Mr. S.D. Upadhaya which has fulfilled the mandate of the provision of Article 39 A of the Constitution of India in providing free legal aid to the poor and indigent litigants.
35. Registry is directed to send back the Lower Court case record to the concerned Court.
36. Appeal disposed of. No cost.
Judge Meghalaya 11.02.2021 "N.Swer, Stenographer"
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