Meghalaya High Court
Shri. Johny Nongtnger vs . State Of Meghalaya & Ors on 13 September, 2018
Bench: Mohammad Yaqoob Mir, S.R. Sen
1
Serial No. 6
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
Crl.A. No. 1 of 2015 Date of Hearing: 29.08.2018
Date of Decision: 13.09.2018
Shri. Johny Nongtnger Vs. State of Meghalaya & Ors
Coram:
Hon'ble Mr. Justice Mohammad Yaqoob Mir, Chief Justice
Hon'ble Mr. Justice S.R. Sen, Judge
Appearance:
For the Petitioner/Appellant (s) : Mr. H.L. Shangreiso, Adv. with
Mr. R. Majaw, Adv.
For the Respondent(s) : Mr. S. Sen Gupta, Addl. PP.
i) Whether approved for reporting in Yes/No Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
S.R. Sen, 'J'
1. This instant appeal has been filed by the convict/appellant under Section 374 Cr.P.C challenging the impugned judgment and order dated 25.07.2014 passed in G.R. Case No. 110 of 2007, wherein the learned Fast Track Court Nongstoin, West Khasi Hills District, Meghalaya passed a sentence of 5(five) years rigorous imprisonment under Section 376 IPC as well as a fine of Rs. 10,000/- and in default thereof, to undergo 1(one) year rigorous imprisonment.
2. Heard Mr. H.L. Shangreiso, learned counsel who appeared on behalf of the convict/appellant as well as Mr. S. Sen Gupta, learned Addl. PP who appeared on behalf of the State.
3. The brief fact of the appellant's case in a nutshell is that:
"1. The accused/appellant is a bonafide citizen of India and a permanent resident of Trihsaw village, Nongstoin, West Khasi Hills District, Meghalaya and as 2 such, he is entitled to all the rights and privileges as guaranteed under Part III of the constitution of India and such other allied laws framed there under.
2. That the brief facts of the case are that the prosecutrix i.e. Miss. Kyntiewlin Nianglang resident of Nongdaju village and the accused/appellant i.e. Mr. Johny Nongtnger resident of Trihsaw Village of Nongstoin, West Khasi Hills District, Meghalaya had eloped thereby maintaining a marital relationship as husband and wife and having cohabited under the roof of the said relationship, the prosecutrix became pregnant. The above relationship was well known by the families.
3. That the prosecutrix claimed that she went to Shahlang bazaar on 05.12.2007 and met the accused/appellant who worked as cook in the Police Battalion at Shahlang, West Khasi Hills District, Meghalaya and she claimed that she has disclosed him about her pregnancy from the accused and as result, the accused assured her that he would take care of her and the unborn baby since he is the father. Further, she claimed that she followed the accused/appellant to his quarter to collect his cloths so as to accompany her to her village. However, she claimed that after bagging his cloths, the accused and she proceeded towards the sumo station/parking for their transportation, but on the way at about 3:30 PM, the accused/appellant suddenly raped her and assaulted her with knife and as such, she became unconscious and at the time of regaining her consciousness, she saw the police team around her who subsequently, shifted her to the Missionary Dispensary and later shifted to Civil Hospital, Shillong and 3 again admitted to Ganesh Das Hospital, Shillong on 08.12.2007.
4. That she claimed that she had narrated the above story to the complainants namely Smti. Irene B. Hujon and Smti. Agnes Kharshiing, both president and joint secretary of the Civil Society Women's Organization Shillong in the Ganesh Das Hospital who accordingly, filed the First Information Report (in short FIR) dated 07-12-2007 before the Superintendent of Police, Nongstoin alleging therein that victim girl i.e. Miss Kyntiewlin Nianglang was taken by the accused/appellant to a secluded area in Shahlang, Nongstoin, West Khasi Hills on 06-12-2007 at about 3:30 PM and he raped her and then slight her throat, cut her head, hands and other parts of her body with a knife causing serious injuries on the person of the above victim girl/prosecutrix. The above two complainants had lodged the above FIR for taking an appropriate action against the accused.
5. That the prosecution team claimed that when the PW. 4, 5 and 6 all police constable attached to Shahlang Police Outpost informed to the Shahlang Police Outpost that while returning from the market on foot towards their camp, they heard a noise and scream of the lady on the side of the road and they found the victim laying on the ground with the blood splatter therein at about 09:30 PM at night and having the said information, the police went to the place of occurrence and took the prosecutrix to Missionary Dispensary and later arrested the accused/appellant on 05.12.2007. Having received the above FIR, the case was duly registered as P.S. Case No. 87/2007 under Section 4 363/326/307/376 IPC. However, the said accused was released on bail by the Learned ADM vide Order dated 10-12- 2007 on the ground that both the prosecutrix and accused/appellant are husband and wife.
6. That after, making seizure of one Khasi daw, one bamboo handle of wait and one khasi apron on 5th December, 2007 and medical examination of the th accused/appellant on 6 December, 2007, the confessional statement was recorded from the accused/appellant on 10.12.2007 by the magistrate first class under Section 164 Cr.P.C. Moreover, the tube containing the virginal swab from the prosecutrix and blood sample from the accused/appellant were also seized by the Ganesh Das Hospital, Shillong dated 19.12.2007 and further, the confessional from the prosecutrix was also recorded by the magistrate on 13.02.2008 wherein she clearly admitted that she had eloped with accused/appellant.
7. That thereafter, the forensic report dated 19.06.2008 was also received from the Directorate of Forensic Science Laboratory, Shillong which clearly reported therein that no seminal stain was found. Moreover, after a gap of 10 months and 17 days from the date of alleged incident, the prosecutrix was also examined by the competent doctor on 22.10.2008 and report dated thereof was also submitted wherein, it was clearly reported that there was no sign of recent sexual intercourse and no local injuries were found.
8. That thereafter, the prosecution had filed a charge-sheet vide No. 64 dated 02.11.2008 under Sections 5 363/326/307/376 IPC before the learned Additional District Magistrate, Nongstoin with the 15 lists of prosecution witnesses and prayed to direct the accused/appellant to face the full dress trial. Despite of the fact that the Governor vide Notification No. LJ (A) 9/2012/5 dated 14.03.2012 and Notification No. LJ (A) 9/2012/6 dated 24.03.2012 was pleased to invest with the learned Fast Track Court, Nongstoin to try the offences against women especially rape cases, the above learned trial court had even proceeded to try the alleged offences under Section 363/326/307 IPC against the accused.
9. That during the trial, the prosecution had produced 14 witnesses to prove its allegation/charges against the accused/appellant and the name of the prosecution witness are as follows: PW-1 and PW-2 are the Complainants who filed the FIR for and on behalf of the victim, PW-3 is the victim girl, PW-4 is the Police constable then attached to the Shahlang Police Outpost, PW-5 is the then Police Havaldar attached to the Shahlang Police Outpost, PW-6 is the then Police constable attached to the Shahlang Police Outpost, PW-7 is the Deputy Director FSL, Shillong, PW-8 is the Senior Scientific Assistant, FSL, Shillong, PW-9 is the doctor who examined the accused/appellant, PW-10 was the then Magistrate First Class who recorded the confessional statement of the accused/appellant U/s 164 Cr.P.C, PW-11 is the doctor who examined the victim girl, PW-12 is the first investigating officer of the case, PW-13 is the doctor in whose presence the victim girl was admittedly examined and PW-14 is the Second investigating officer of the case. All the prosecution witnesses 6 are not the eye witnesses but merely adduced hearsay evidences and save and accept PW-7 and PW, all the Prosecution Witnesses were duly cross examined."
4. The matter came up before the Division Bench and it has been heard thoroughly.
5. After hearing the submissions advanced by the learned counsel for the respective parties, the issue which arises before us is that:
Whether the prosecution could establish the charge under Sections 363/326/307/376 IPC?
6. Now, to examine the appeal, let us look back to the evidences and paper book submitted before this Court. It appears that during trial, the learned Court below examined as many as 14(fourteen) witnesses and also exhibited 13(thirteen) documents and 11(eleven) numbers of Material Exhibits.
7. On perusal of the deposition of PW-1, it appears that she merely filed the exhibit on the basis of hearsay information, which she admitted in her cross-examination. Therefore, her evidence is not reliable or disclosed anything.
8. On perusal of the deposition of PW-2, it appears that the victim disclosed to her that the convict/appellant raped her and as a result she became pregnant and gave birth to a baby boy, however the baby boy survive for sometime but ultimately expired. PW-2 also deposed that she has noticed injury marks on the body of the victim.
In her cross-examination, she admitted that whatever she has deposed in the examination-in-chief i.e. what she heard from the victim, she is not the eye witness of the incident.
9. On perusal of the deposition of PW-3 the victim, it is apparent that 7 the victim and the convict/appellant were known to each other. On 06.12.2007 the victim went for bazaar shopping at Shahlang village, where she met the convict/appellant and thereafter, went for a cup of tea. Here, she disclosed to the convict/appellant that she is pregnant with a child for a month. The convict/appellant also admitted and promised that he will take care of her and the still born child. On the same day, the victim also deposed that she and the convict/appellant were supposed to go to her village, but on the way, she was raped forcefully and assaulted by the convict/appellant. She also admitted that she conceived a baby boy from the convict/appellant and gave a normal delivery, to which the child died after one year and five months.
From cross-examination, it is also clear that the victim had cohabited with the convict/appellant prior to the incident at Battalion quarter at Shahlang and also admitted that she informed the conceived of the child from the convict/appellant firstly to her family members and then to the convict/appellant at Shahlang market and further exhibited the Khasi Dao, Khasi Apron, etc. Interestingly, it is noticed from the deposition of PW-3 that she knew the convict/appellant very well and they had cohabited together prior to the incident and that she conceived a child from the convict/appellant. Therefore, we could not understand where the question of rape comes and the circumstances which arise here create only a bunch of doubts.
10. On perusal of the deposition of PW-4, nothing concrete came about the rape, except the injury incurred by the victim, but he could not narrate who has injured the victim.
11. On perusal of the deposition of PW-5, it appears that after receiving information in the month of December, 2007 after hearing the incident, they went to the place of occurrence and seized the Material Exhibits. From his evidence also it is not clear who has injured the victim or raped her.
812. From the deposition of PW-6 also it is not clear who has raped or injured the victim, rather he was not in a position even to identify the Material Exhibits and came to learnt from the third party that it is the convict/appellant who has committed the offence. It is also not clear who the third party is, neither had it come in the evidence.
13. On perusal of the deposition of PW-7, nothing reveals about the rape and injury caused by the victim, except that he has exhibited certain exhibits.
14. Similarly, from the deposition of PW-8 nothing has come about the incident, except some Material Exhibits.
15. On perusal of the evidence deposed by PW-9 also, nothing reveals to finger point the convict/appellant that he is the one who has committed rape and assaulted the victim.
16. PW-10 exhibits the confessional statement of the convict/appellant as Exhibit-8. On perusal of Exhibit-8, it is apparent that the convict/appellant admitted that he has assaulted the victim not with intention, but out of anger and drunkenness.
17. On perusal of the deposition of PW-11, nothing came on record, except the collection of some samples collected by him in the year 2008.
18. On perusal of the deposition of PW-12, it appears that the incident occurred on 05.12.2007 where the victim was found injured and she was first taken to Mission Dispensary. From his deposition, it also appears that he has seized the Material Exhibits at the Police Outpost. It also appears that he met the eldest sister of the victim and advice her to file the FIR, but she declined. As the victim's condition was serious, she was admitted to Nongstoin Civil Hospital. From there, she was referred to Shillong Civil Hospital and then to Ganesh Das Hospital, Shillong.
9Ultimately, an FIR was filed by PW-2 on 07.12.2007 which is exhibited as Exhibit-1. It also appears that the investigation was handed over to WPSI E. Lyngdoh on 20.12.2007 and final charge sheet was filed by the said WPSI. On his evidence also, it appears that he has arrested the convict/appellant. Therefore, on scanning of the evidence of the first I/O, it is not clear on which date exactly the victim was admitted at Ganesh Das Hospital, Shillong.
19. From the deposition of PW-13 the doctor of Ganesh Das Hospital, Shillong, it appears that the victim was produced in the said hospital only on 22.10.2008 for conducting examination on an alleged rape and she was examined by one Dr. Valarie Laloo, Medical and Health Officer, Ganesh Das Hospital. From the examination of Dr. Valarie Laloo, it is also clear that she did not find any sign of recent sexual intercourse, except some injury marks in other parts of the body and hymen is fractured.
In cross-examination also the doctor has admitted that there was no sign of sexual intercourse and the injuries found are old in nature and the victim was carrying a fetus of less than 3(three) months.
20. Exhibit-10 the so called medical report reveals nothing about the rape. It is apparent that it has been recorded only on 22.10.2008. No other medical report is available on record, so from the evidence of the doctor nothing reveals that she was raped or forcible sexual intercourse.
It is really shocking when the incident occurred on 05.12.2007, how the victim was sent for medical examination to ascertain the rape only on 22.10.2008. It is also not clear from the evidence of the doctor whether the injury marks present in the body of the victim was recent or an old one.
21. From the evidence of PW-14 the second I/O, it appears that the victim was admitted to Ganesh Das Hospital, Shillong on 19.12.2007 and as per the statement recorded by her, the victim eloped with the convict/appellant for over 5(five) months.
10On scanning her evidence also, nothing came concrete to finger point that it is the convict/appellant who committed rape and assaulted the victim.
So on careful analyzes of the evidence as discussed above and after applying our conscious judicial mind, we are really confused whether there was any rape or assault upon the victim.
From the evidence of PW-14, it also appears that the victim was admitted to Ganesh Das Hospital, Shillong on 19.12.2007, whereas the doctor of the said hospital stated that the victim was produced for examination on 22.10.2008. Besides that, on examination, no sign of rape could be detected and the injuries were found to be old in nature. We could not understand in such a serious case how the prosecution and the I/O could be so negligent in conducting a case and muddle up the entire evidence. It also appears to us that the evidence given by the prosecution witness was not certain as to what they are stating in their statements.
22. It is a settled principle of law that a rape victim needs to be examined immediately so as to detect the exact outcome, but here the prosecution failed miserably. We find that the entire case is mishmash. It is also a settled principle of law that each and every case which depends upon circumstantial evidence, it is the duty of the prosecution to prove each and every circumstance beyond doubt, which will finger point to the accused only and none else.
23. The Hon'ble Supreme Court in the case of Shanmughan versus State of Kerela: (2012) 2 SCC 788 at Para 7 was pleased to observe that:
"7. We take up for consideration the last submission made by the learned counsel for the appellant. We are inclined to agree that when a case is sought to be proved by the prosecution on the basis of circumstantial evidence, the burden on the prosecution is that it must prove each circumstance in such a way as to complete the chain and at the same time it should be consistent with the guilt of the accused. Any reasonable doubt in proving the circumstances 11 must be resolved in favour of the accused. The accused must be given the benefit of any fact or circumstance which is consistent with his innocence, which is to be presumed, unless the contrary is proved by the chain of circumstances."
But, in this instant case after thorough scanning of the evidences on record and the Material Exhibits, we do not find sufficient materials to agree with the impugned judgment and order dated 25.07.2014 passed by the learned Fast Track Court Nongstoin, West Khasi Hills District, Meghalaya in G.R. Case No. 110 of 2007. It is also a concern that if such type of evidence is produced and examined in such manner, it will only encourage the guilty people who are bound to go scot-free, for which we expressed our anguish and displeasure upon the prosecution as well as to the Court.
Since no evidence is available on record beyond doubt to establish the charge against the convict/appellant, we are unable to uphold the said impugned judgment and order dated 25.07.2014 referred above.
24. Lastly, we also note that while passing any judgment, the Court should not be led by motion or heart, but should be led by law and evidence.
25. Accordingly, the impugned judgment and order dated 25.07.2014 passed by the learned Fast Track Court Nongstoin, West Khasi Hills District, Meghalaya in G.R. Case No. 110 of 2007 is hereby set aside.
The convict/appellant is set free with immediate effect.
26. The Director General of Police, Meghalaya, Shillong is directed to take up the matter with the Government so that the directorate of prosecution will be established as early as possible and accountability can be fixed.
1227. The Registry is directed to roll back the Lower Court case record to the concerned Court along with a copy of this judgment and order and also to furnish a copy of this judgment and order to the Chief Secretary, Meghalaya, Shillong, Advocate General, Meghalaya, Shillong, Director General of Police, Meghalaya, Shillong as well as to the Superintendent Jail concerned.
28. With this observation and direction the criminal appeal stands disposed of.
(S.R. Sen) (Mohammad Yaqoob Mir)
Judge Chief Justice
Meghalaya
13.09.2018
"D. Nary, PS"