Meghalaya High Court
Small Phawa vs . State Of Meghalaya & Ors on 2 April, 2019
Bench: Mohammad Yaqoob Mir, H. S. Thangkhiew
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 1 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:-
2"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 3 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 4 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;5
(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 6 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 7 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.
817. 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.
9She 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 10 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 11 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 12 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 13 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.
1532. 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"
16