Meghalaya High Court
Smt Lelitha N. Sangma vs State Of Meghalaya on 26 May, 2016
Author: Sr Sen
Bench: Sr Sen
1
THE HIGH COURT OF MEGHALAYA
AT SHILLONG.
CRL.A. No. 6 of 2014
Smt. Lelitha N. Sangma,
Wife of Shri. Benedict Marak,
Resident of Bolsal A.chik Tura,
West Garo Hills District,
Meghalaya. :::::: Appellant
-Versus-
State of Meghalaya and others :::::: Respondents
BEFORE THE HON'BLE MR JUSTICE SR SEN For the Appellant : Mr. P.T. Sangma, Adv For the Respondents : Mr. S. Sen Gupta, GA Date of hearing : 22.04.2016 Date of Judgment & Order : 26.05.2016 JUDGMENT AND ORDER Heard Mr. P.T. Sangma, learned counsel for the appellant as well as Mr. S. Sen Gupta, learned GA.
2. The brief fact of the appellant's case in a nutshell is that:
"The complainant Smti. Sonali Ch. Sangma the elder sister of the victim filed a complaint on 4.06.2010 before the Deputy Commissioner, West Garo Hills District, Tura, alleging that her sister by name Smti. Christina Ch. Sangma aged about 20 years who is physically handicapped was repeatedly raped and pregnant by Shri. Benedict N. Marak an employee serving as supervisor in the Bethany Society at Tebrongre village under West Garo Hills District Meghalaya. It is further stated that the incident came to 2 light only when the mother of the victim found that her daughter i.e. Smti. Christina Ch. Sangma was carrying a five months baby in her womb. And the complainant also alleged that the incident occurred sometime in the month of February 2010 and the Deputy Commissioner was please to direct the I/C Officer In charge to register the case and the same was registered vide Tura P.S. Case No. 140 (6) 2010 under Section 376/506 IPC. Thereafter the case was tried by the Adhoc Judge Fast Track Court, West Garo Hills Tura. And the learned Court of Adhoc Judge Fast Track Court Tura proceeded with final hearing on 19.9.2014 and convicted and sentence the accused under two section of IPC, i.e. 376 (2) (c) and 506 (2) for 7 years Rigorous Imprisonment and under Section 506 for two years imprisonment and being highly aggrieved by the said impugned Order dated 19.09.2014 appellant file the instant appeal for the intervention of this Hon'ble Court".
3. This instant criminal appeal is directed against the impugned order dated 19.09.2014 and the impugned judgment dated 10.09.2014 passed by the learned Adhoc Judge, Fast Track Court, West Garo Hills, Tura in connection with S/c 9/2012 U/s 376(2)(c)/506 IPC.
4. From the case record as well as from the paper book, it appears that, during trial the prosecution examined as many as 5(five) witnesses and the defence examined 2(two) witnesses. The prosecution also exhibited 9(nine) exhibits which are on record.
5. The learned counsel appearing for the appellant had submitted that, in this instant case no ingredient of rape had been proved. Inspite of that, the learned trial court without appreciating the evidence in its true context convicted the accused Shri. Benedict N. Marak. Hence, this instant appeal.
3
The learned counsel further argued that, there was no iota of evidence available on record that he had committed rape upon the victim and referred to the deposition of different witnesses and further submitted that sexual intercourse between the accused and the victim is a consent one and out of the said intercourse a child was born and prayed that the said impugned order dated 19.09.2014 and the impugned judgment dated 10.09.2014 passed by the learned Adhoc Judge, Fast Track Court, West Garo Hills, Tura may be set aside and the accused may be placed on liberty.
6. On the other hand, Mr. S. Sen Gupta, learned GA appearing for the State submitted that though, it was a consensual sex intercourse, but the victim was mentally deranged. So, it cannot be said that there was a valid consensual sex intercourse from the side of the victim. Therefore, the learned Adhoc Judge, Fast Track Court, West Garo Hills, Tura has rightly convicted the accused.
7. After hearing the submissions advanced by the learned counsel for the parties, two questions raised before this court which is as under:
1. Whether there is a rape or it was just a mere sexual intercourse with consent?
2. Whether the victim was mentally deranged and thereby her consent is invalid?
To answer these crux issues, let me examined the evidence on record.
On scanning the evidence of P.W. 1 the victim, nothing came on record that she has been raped by the accused except that she was in love with the accused for 1(one) year and she is physically handicapped. However, from her evidence also the statement given before the Magistrate accepted as Ext. 2 is correct. On further perusal of Ext. 2, it is also apparent 4 that the accused had raped the victim many times. She also stated in her statement that the accused used to rape her and she could not scream due to the threat given by the accused that he will hit her and he used to enter the room forcibly. In her statement, she also stated before the Magistrate that the accused had raped one Nirmala who was dumb and she saw the incident. Thus, the evidence of P.W. 1 confirms that the accused had raped her on many occasions without her consent and she could not scream due to fear.
8. From the evidence of P.W. 2 the mother of the victim, it appears that she came to know about the pregnancy only from her daughter when she was already pregnant and she disclosed the name of the accused responsible for her pregnancy.
9. P.W. 3 is the sister of the victim who lodged the FIR (Ext. 1) after hearing about the pregnancy of her victim's sister.
10. P.W. 4 Col. Donald was the Administrator of Bethany Society. From his deposition it appears that he came to know about the incident from some Maharis and thereafter, a meeting was held where the accused admitted that he had sex with the victim, but the accused further informed that it was a consensual sex at the insistence of the mother of the victim. Nothing rebutted came in the cross-examination about the facts of the case. He also further stated that the victim was not in a position to move on her own, she had to use a wheel chair.
11. From the evidence of P.W. 5 the I/O also had disclosed that the accused admitted having sexual intercourse with the victim and was aware about her pregnancy. From the evidence of the I/O it is also evident that the accused is the biological father of the child born out of the incident. 5
12. From the evidence of D.W. 1 it appears to me that he came forward to give the evidence with some intention as he stated that he never like the victim.
13. From the evidence of D.W. 2 in his examination-in-chief, he admitted that he has no personal knowledge about the incident.
14. After scanning the evidence as discussed above, it is difficult to arrive to a conclusion whether it is a rape or a consensual sexual intercourse between the accused and the victim. The only evidence available on record is the statement under Section 164 Cr.P.C, which P.W. 1 accepted as a correct version, but unfortunately the recording Magistrate has never been examined as record speaks. There cannot be any dispute with the proposition of law that, it is the prosecution who is under obligation to exhibit the 164 statement through the Magistrate concerned who has recorded the statement. Though, the victim claimed that she is physically handicapped, but there is no evidence to support her claim. The prosecution should take care of the situation.
15. The Hon'ble Gauhati High Court in the case of Tapan Kumar Das versus State of Assam: (1998) 1 GLR 336 at Para 4 made the observation pertaining to 164 statement. The same is reproduced herein as under:
"4. There cannot be any dispute with the proposition of law that it is the prosecution which is under legal obligation to get the statement under Section 164 Cr.P.C exhibited after summoning the concerned Magistrate, but we hasten to add that the Court of Sessions is also not absolved of its duty to record such a statement of an important witness. Even if the prosecution was negligent in summoning the Magistrate, the Court had sufficient power to summon the Magistrate as a 6 Court witness in order to straighten the record and in order to make up its mind whether such a statement under Section 164 Cr.P.C could be relied upon or not. The prosecution may, in the ordinary course, not examine an ordinary witness and the Court in such a situation would hardly be concerned to order the examination of such a witness. But when a witness happens to be a Magistrate before whom sole eyewitness has appeared at the earliest opportunity, such an important witness, in our considered view, should have been examined by the Court of Sessions. Where there is a statement under Section 164 of the Criminal Procedure Code, whether it be of an eye-witness or a confessional statement of the accused, the same, in our considered view, must be exhibited even if the Court of Sessions has to summon the Magistrate as a Court witness. The case in hand pertains to non-exhibition of the statement of an eye- witness. In another given case the Court of Sessions may not exhibit the confessional statement of an accused by remaining a silent spectator. The Court of Sessions while trying a case which is triable by it only has to be vigilant about the record of the case and as to what is the case of prosecution and defence. As to what evidentiary value has to be attached to such a statement under Section 164 Cr.P.C, it is for the Court of Sessions to see in a particular given case. The statement under Section 164 Cr.P.C may be used by the prosecution for the purpose of corroboration in one case and in another case it may be used by the defence for the purpose of contradiction. In other words, in one case it may help the prosecution whereas in another case it may help the accused. The Court would oftenly and normally go through the statement under Section 164 Cr.P.C for arriving at the truth of the matter regarding the guilt or innocence of the accused persons. Since the Court cannot look at the unexhibited statement, there cannot be proper appreciation of evidence".7
16. Therefore, after applying my judicial mind, I am of the view that it is a fit case where a fresh trial is required to find the actual and correct position of the incident and for which it needs to be remand back for fresh trial. We must remember that to convict an innocent is highly illegal and sinful. Therefore, it is the duty of the prosecution to establish the case beyond doubt and not to leave in the middle path with a doubt. The impugned order dated 19.09.2014 and the impugned judgment dated 10.09.2014 passed by the learned Adhoc Judge, Fast Track Court, West Garo Hills, Tura are hereby set aside and the case is remand back to the Court of Sessions, Tura for fresh trial and to complete the trial within 6(six) months from the date of receipt of a copy of this judgment and order. The accused Shri Benedict N. Marak is at liberty to move the bail application during the pendency of the trial before the learned Sessions Judge, Tura who shall consider the bail application in accordance with law.
17. The Registry is directed to return the Lower Court case record to the concerned court alongwith a copy of this judgment and order.
18. With this observation and direction the appeal is hereby admitted and stands disposed of.
JUDGE D. Nary