Meghalaya High Court
Shri Small Phawa vs State Of Meghalaya on 1 February, 2017
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
1
Crl.M.C. No.34 of 2016
In Crl A. No.5 of 2016
Shri Small Phawa v. State of Meghalaya
IN THE HIGH COURT OF MEGHALAYA AT
SHILLONG
: ORDER :
CRL M.C. No.34 of 2016 In CRL A. No.5 of 2016 Shri Small Phawa ..... Appellant
-Versus-
State of Meghalaya ..... Respondent
Date of Order: :: 01.02.2017
PRESENT
HON'BLE SHRI JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE HON'BLE SHRI JUSTICE VED PRAKASH VAISH Shri SP Mahanta, Sr.Adv., with Ms. E Rynjah, for the appellant Shri K Khan, PP BY THE COURT: (per Hon'ble the Chief Justice) (Oral) Heard learned counsel for the parties on the application seeking suspension of the execution of sentence and perused the record. The applicant herein has been convicted for the offence under Section 376 IPC with the finding that he was guilty of committing rape on a minor and has been sentenced, inter-alia, to rigorous imprisonment for a period of ten years. The appeal against the impugned judgment and order dated 27.09.2016 has already been admitted for consideration. Pressing for his application for suspension of execution of sentence, learned senior counsel for the appellant has argued that after this matter was sent for re-trial by this Court by way of the order dated 28.04.2016 in Criminal Appeal No.4 of 2015, the learned Sessions Judge totally misread the order remitting the matter; and proceeded as if to carry out a de novo trial; and further witnesses were examined and re-examined, which was not a course permitted by law. The learned senior counsel has further argued 2 Crl.M.C. No.34 of 2016 In Crl A. No.5 of 2016 Shri Small Phawa v. State of Meghalaya that the prosecution has failed to establish that the prosecutrix was a minor at the time of the alleged incident. It is submitted that the entire story of ossification test is suffering from several loopholes and even the X-Ray Plate is not available on record. It is also submitted that the school certificate could have been called for but, no such evidence were produced and instead, a certificate of uncertain nature was produced by the grand- father of the prosecutrix (who was examined as PW1) at Exhibit-6 but then, even the author of the said certificate was not produced. Thus, according to the learned counsel, the said certificate was neither proved nor has any probative value. Learned senior counsel has further submitted that the investigation in this matter has been suffering from several shortcomings where the alleged clothes were not sent for FSL report and even the vaginal swab was also not sent for FSL report. Thus, according to the learned senior counsel for the appellant, there being no evidence of rape, the conviction cannot be sustained in this case.
Per contra, learned PP has argued that re-trial was taken up by the learned Sessions Judge in accord with the directions of this Court and the requisite evidence was taken in accordance with law. Learned PP has further argued that the fact was clearly established in the specific testimony of victim herself that she was minor at the time of incident; and this fact was further corroborated in the statements of her grand-father and mother. According to the learned PP, there being no specific rebuttal of the fact established in prosecution evidence, the findings as reached by the learned Trial Court remain unassailable. Learned PP has drawn the attention towards the statement of the victim to submit that all the necessary ingredients of the offence of rape are established in her testimony itself.
We have given anxious consideration to the submissions made and have examined the record.
3Crl.M.C. No.34 of 2016 In Crl A. No.5 of 2016
Shri Small Phawa v. State of Meghalaya The matter being at the initial stage and being considered only on the application seeking suspension of execution of sentence, we would not be making any comment on the merits of the case either way. Suffice it to say for the present purpose that after having examined the record and particularly the testimony of the prosecution witnesses and after having taken note of the facts and factors emerging from the questions as put, and as omitted to be put, in the cross examination of the witnesses, at the present juncture, we are not inclined to suspend the execution of sentence. Therefore, the application for suspension of execution of sentence stands rejected.
Crl.MC No.34 of 2016 stands disposed of.
Learned counsel for the appellant has prayed for early hearing of the appeal. Having regard to the totality of circumstances, it does appear appropriate to take up the appeal for hearing at an early date and out of turn. For the purpose of expedite hearing, learned counsel for the appellant may submit a mini paper book containing the essential papers including the documentary evidence and deposition of witnesses within four weeks. Upon submission, the office shall compare the paper book within two weeks and shall thereafter list the appeal for final hearing in priority.
JUDGE CHIEF JUSTICE Lam Item No.2