Meghalaya High Court
Shri. Dharmendra Singha vs State Of Meghalaya on 12 November, 2013
Author: Sr Sen
Bench: Sr Sen
IN THE HIGH COURT OF MEGHALAYA
Crl. Appeal No. 7 of 2012
Shri. Dharmendra Singha.
...... Appellant
- versus -
State of Meghalaya
...... Respondent
BEFORE THE HON'BLE MR JUSTICE SR SEN Advocate for the Appellant : Mr. RB Pradhan Advocate for the Respondent : Mr. H Abraham, Addl. PP Date of Hearing : 28.10.2013 Date of Judgment and Order : 12.11.2013 JUDGMENT AND ORDER This instant Appeal is directed against the Judgment & Order dated 27.11.12 passed by the Addl. District & Session Judge, Fast Track Court, Shillong in Case No. FTC (S) No. 32 of 2007. The appellant's case in brief is that, on 28.03.07 (PW-10) Shri. Vinod Sareen received a telephonic call from (PW-12) i.e. is wife Smti. Charu Sareen that their maid servant Ms. Marina Khatoon, resident of Kasiabari village in Jalpaiguri under Tehsil Holdibari District Coach Bihar residing with them in BSF Quarter at Mawpat was missing.
2. After getting the message, PW-10 immediately rushed to the house and searched for the maid servant along with his wife and neighbours but could not find the missing girl. So, on the next day PW- 10 went to Police Station and reported the matter where he learnt that the girl was brought to the Police Station in the night by the Rangbah Shnong and the police handed over the girl to the Impulse NGO Network, Shillong. Immediately thereafter, PW-10 rushed to the office of the Crl. Appeal No. 7 of 2012 Page 1 of 12 Impulse NGO Network but the girl was not brought before him by the said NGO officials.
3. Thereafter, the mother of the missing girl was brought and fervently requested the NGO to hand-over the girl to her but the NGO refused to do so and instead asked for proof of her motherhood. So, the mother produced certain documents but still the missing girl was not handed over to her by the NGO and kept her in their custody.
4. Later the Impulse NGO Network filed a concocted FIR on 18.05.12 stating that one Shri. Dharmendra Singha, a constable who is a BSF employee allotted to PW-10 as security has sexually abused the missing girl till she left the house but the girl never reported the matter of any sexual abuse to PW-10, PW-12, their son or to any relative or to anyone.
5. On the basis of the FIR, the police registered a case as Rynjah P.S. Case No. 35 (5) 2007, U/s 376 IPC and finally filed a charge- sheet and thereafter trial proceed. The learned Court below on completion of trial vide Judgment & Order dated 27.11.12 awarded conviction upon the accused Shri. Dharmendra Singha. Being aggrieved by the said impugned Judgment & Order, this instant Appeal has been moved before this Court.
6. Mr. RB Pradhan, the learned counsel appearing for on behalf of the appellant/accused submitted that the learned Court below while passing the impugned Judgment & Order dated 27.11.12 has completely failed to appreciate the evidence and convicted the accused on mere presumption and assumption. The learned counsel further contended that the victim girl has never been confined in the house of the PW-10 but she had the liberty to move freely and mixed-up with the public, therefore, had she suffered any sexual abuse, she could have brought the matter to the many persons including her employer but she never did so. The learned counsel also further contended that FIR filed Crl. Appeal No. 7 of 2012 Page 2 of 12 by the NGO was after thought with malafide intention and filed almost one and half months, so there has been every possibility that she has been tutored by the said NGO and built up a false case. The learned counsel has also referred to the deposition of different witnesses and contended that the impugned order dated 27.11.12 needs to be set aside and to free the accused from custody.
7. On the other hand, Mr. H Abraham, the learned state counsel argued that the case is well proved and from the evidence of different witnesses the prosecution has succeeded to establish the charge against the accused, interference with the impugned Judgment & Order dated 27.11.12 is unwanted, so the Appeal may be dismissed.
8. Both the learned counsel in support of their submissions have relied on the following Judgements:-
Books relied by the learned counsel for the Appellant :
1. (2012) 7 SCC 171
2. (2011) 7 SCC 130
3. (2010) 3 SCC 232
4. (2008) 10 SCC 69
5. (2008) 10 SCC 318
6. (2007) 12 SCC 641
7. (2010) 2 GUAHATI REPORTS 141
8. (2009) 5 GAUHATI LAW TIMES 828
9. (2009) 3 GAUHATI LAW TIMES 522
10.(2009) 1 GAUHATI LAW REPORTS 421
11.(2008) 3 GAUHATI LAW REPORTS 354
12.(2007) 4 GAUHATI LAW REPORTS 502
13.(2007) 1 GAUHATI LAW REPORTS 282
14.(2005) 3 GAUHATI LAW REPORTS 581
15.(2004) 1 GLT 30
16.(2004) 1 GAUHATI LAW TIMES 478
17.(2001) 1 GAUHATI LAW REPORTS 516
18.(2000) 2 GAUHATI LAW REPORTS 214
19.(2013) 4 GAUHATI LAW REPORTS 42
20.(2013) 4 GAUHATI LAW REPORTS 182
21.(2012) 7 SC 171 Books relied by the learned counsel for the respondent :
1. AIR (2002) SC 2235
2. (2006) 3 Crimes 220 SC
3. (2007) 3 Crimes 281 SC Crl. Appeal No. 7 of 2012 Page 3 of 12
9. From record and paper book placed before this Court, it appears that prosecution has examined as many as 13(thirteen) witness to establish the charge against the accused before the Trial Court. So before coming to any logical conclusion; now I examine the deposition recorded by the Trial Court as follows.
10. From the evidence of PW-1, it appears that after 3(three) months since the date from which the victim was in their custody disclosed that the accused had done something bad to her and spoiled her life. Besides that, she also stated that she has informed the matter to her employer who did not listen to her. It also appears that, the victim girl disclosed that the accused has promised to marry her after divorcing his wife and reported the matter to the President, Impulse NGO Network. In the cross examination, she has admitted that, FIR was lodged by one Miss. Sheema Modak, Counsellor of the NGO Network and further admitted that the FIR was also written by Miss. Sheema Modak and she only delivered the FIR to the Police Station at around 3:00PM.
11. From her deposition, it is clear that the girl was brought to the Impulse NGO Network and she was question on 28.03.07 but the girl remained silent. So, from her evidence i.e. PW-1, I find that the whole incident was disclosed after some months from the date she was staying in the custody of the Impulse NGO Network.
12. From the evidence of the (PW-2) i.e. the victim girl, it appears that she has no parents and she is the resident of Siliguri and she was sent to work in the house of the PW-10 at Mawpat, Shillong. From her evidence, it also further appears that, she was brought to Shillong with a promise from the employer that she will be sent to school and she will be looked after as she has no parents but the employer did not keep his promise. From her evidence it appears that, during Holi Festival, 2007, the accused did bad things "kharap kam" to her in the house of Shri. Vinod Sareen when no one was available at home. She Crl. Appeal No. 7 of 2012 Page 4 of 12 further stated that she did not inform the matter to PW-10 i.e. her employer who being an officer resides outside, she also did not informed his wife Smti. Charu Sareen i.e. PW-12 as she did not want to listen when she tried to tell her. She also deposed that the accused had done bad things to her on many occasions, so she ran away from their house and took shelter in the house of one khasi lady. She also further deposed that she has narrated everything to the khasi lady who took her to the Police Station and the police brought her to the Impulse NGO Network. She also further deposed that, she did not inform the members of the NGO as she was of the apprehension that they might send her back.
13. Later she narrated the incident to PW-1 who checked the body physically to see if any bad things had been done to her and informed the matter to Madam Hasina and brought her one day to the office of the Deputy Commissioner where she gave her statement. She also deposed that, her lady employer had no trust on her and she has been asked to wash dirty clothes and in the later part she also stated that the accused had threatened her that, if she informs her employer she will be kidnapped and killed. She also stated that her lady employer and her son told her that she should not tell all those things to the police. In the cross-examination, she admitted that she used to work earlier as maid servant in hotel at Siliguri.
14. She also deposed in the cross-examination that, her lady employer used to torture her and used to blame her for purchasing sub- standard goods and thought that if she got the chance, she will run away but she did not do so. On the day i.e. most probably on the 28.03.07, she went to buy atta but she did not get and returned, kept the bag and money and ran away from the house. From her deposition, it appears that, the house of the employer is surrounded by many quarters but she did not know any one nor she had any conversation with them. She further deposed that, she also narrated the incident to the doctor who Crl. Appeal No. 7 of 2012 Page 5 of 12 had examined her. In the cross-examination, she admitted that she has narrated to the khasi lady that, it is due to ill-treatment she left the house of the employer.
15. From her deposition it also appears that, on one occasion she had gone to Siliguri and stayed with one Smti. Mirome where she disclosed that, she has been beaten and abused by Smti. Charu Sareen but Smti. Mirome told her that those people love her; she also stated that no salary has been paid by Sareen's family. From her cross-examination it also appears that, one night when the light went-off, the accused came to her room and when she shouted he left the room but she could not remember whether the incident happened before or after Holi Festival. In the cross-examination, she admitted that in the house of the khasi lady where she first took shelter, she narrated about the ill-treatment and that the khasi lady took her to one person whom she does not know.
16. On perusal of the deposition of the victim, it appears that on 28.03.07, she ran away from the house of PW-10 and first took shelter in the house of the khasi lady, she also narrated to her the reason for leaving the house of the employer who took her to one person and ultimately to Police Station and the police dropped her in the Impulse NGO Network where she initially did not disclosed anything and later-on she disclosed everything about the whole incident.
17. So from her deposition, it is clear that when she met the khasi lady, she just disclosed the reason for leaving the employer's house due to ill-treatment, she did not disclosed anything about the bad things "kharap kam" done by the accused.
18. From the deposition of PW-3 it appears that on 28.03.07 at night time the victim came to her house and in turn she took her to Rangbah Dong where the victim girl informed that she has been sacked by her employer and thereafter the police came and besides that she Crl. Appeal No. 7 of 2012 Page 6 of 12 does not know anything. Therefore, from the deposition of PW-3 also nothing came out about the rape.
19. From the deposition of PW-4, it appears that on 28.03.07 one lady brought the victim girl to him, age about 12 years and in turn informed the matter to the police who came and took away the girl. He has specifically deposed that, he has enquired from the girl about her problems and the girl did not disclose anything to him. However, the girl refused to go back to her place of work and he also admitted that, she left the place of work due to harassment by her employer. So, from the deposition of the PW-4 also nothing came out about the rape.
20. From the deposition of PW-5, it appears that she is running one NGO called the Impulse NGO Network and from her deposition it appears that on 29.03.07 one Miss. Sheema Modak who is the counsellor of the NGO counselled the victim girl and tried to know exactly what had happened but the victim girl did not disclose anything. According to her, the police found the girl on the roadside while she was running away and brought her to the NGO. According to her after several counselling, the victim girl disclosed that she has been sexually abused by the accused in absence of her employer and continued till 28.03.07, the day she ran away from the house of the employer. Accordingly, she filed an FIR on 18.03.07 at Nongmynsong Police Outpost and exhibited the FIR as Exbt.-1 and put her signature thereon. In the cross examination she has admitted that she filed an FIR on the basis of the information given by Miss. Sheema Modak. So from her deposition one thing is clear that, initially the girl did not disclose anything about the rape and it is only after several counselling, the girl disclosed that she has been raped by the accused. Besides that it is also pertinent that FIR was lodged on the basis of the information given by Miss Sheema Modak, the counsellor of the Impulse NGO Network. It is noticed that her deposition is contradict with the others about the finding of the child by Crl. Appeal No. 7 of 2012 Page 7 of 12 the police. On further perusal of the records, it appears that FIR was lodged on 18.05.07 which is Exbt.-1.
21. From the deposition of PW-6, it appears that he has examined the girl being the dental surgeon and as per his finding, the age of the girl was more than 12 years.
22. From the deposition of PW-7 the Magistrate who recorded the statement, it appears that she had recorded the statement of the victim girl on 21.05.07 in Khasi language and the victim can speak Khasi fluently. In the cross examination, she has admitted that she was not sure whether the girl is Khasi or non Khasi and from her statement nothing reveals exactly what statement the victim has given before her. Moreover, it is noticed that the statement was not recorded in a proper manner.
23. From the deposition of PW-8 the doctor who examined the victim, nowhere it came out that he found any positive evidence of rape except that the hymen has ruptured in certain portion. So, from his deposition also nothing appeared specifically that it is a case of rape. Now, the question remains about the rapture of the hymen of the victim, as we know the rapture may not always be due to the cause of rape or sexual abuse/sexual intercourse but it may be due to various other reasons.
24. PW-9 the doctor who determined the age deposed that, the age of the victim girl was between 13/14 years.
25. PW-10 the employer of victim, from his evidence it appears that the victim girl came for service in their house in the year 2006 and from his deposition it appears that when he heard about the missing of his maid servant on 28.03.07, he immediately came to inquire and searched for the girl the whole night along with the others in their campus and lodged a missing report on the next day with the police where he learnt that the victim is in the custody of the Impulse NGO Crl. Appeal No. 7 of 2012 Page 8 of 12 Network. Thereafter, he went to the Impulse NGO Network where he was not allowed to meet the victim girl and he has been told that the victim is in a bit of shock and she has left the place for ill treatment. From his deposition, it appears further that the victim never complaint about rape to him or to his family members.
26. From the deposition of PW-11 In-charged Nongmynsong Police Outpost, it appears that on received of the FIR on 18.05.07 he endorsed the matter for preliminary investigation and forwarded the matter to Rynjah Police Station for registration of the case.
27. PW-12 the wife of PW-10, from her deposition it appears that the victim ran away from their house on 28.03.07 where she immediately informed her husband and thereafter a search was made to find the missing girl and eventually they came to know that she is in the custody of the Impulse NGO Network. So from her deposition it appears that, when she went to see and talked with the victim girl, she did not tell her anything and she further deposed that, at the time when the girl was working with them she was normal and was behaving normally. She also stated that the victim never complaint anything to her and she has also admitted in the cross examination that the victim girl never disclose or complaint about anybody.
28. PW-13 the IO, from his deposition it appears that on received of the FIR on 18.05.07, a case has been registered on the basis of the FIR Under Section-376 and investigation was conducted. During the investigation he examined the victim who disclosed that she has been sexually abuse by the accused several times in the quarter of PW-10 and thereafter he did other formalities.
29. On evaluation of the evidences as discussed above, it appears to me that the entire case is based on circumstantial evidence. It is a settled principle of law that when a case is based on circumstantial evidence, evidence needs to form a foolproof chain and there should not Crl. Appeal No. 7 of 2012 Page 9 of 12 be any break in chain. In this instant case it is observed from the evidence of PW-1 that, the victim has disclosed about the incident after 3(three) months since the time she was in the custody of the Impulse NGO Network. In the cross examination she admitted that FIR was lodged by Miss Sheema Modak who is the counsellor of the NGO and she herself has written the FIR whereas from the evidence of the PW-5, FIR was lodged by her, so there is a contradiction. From records also it is clear that, Miss Sheema Modak was never examined by the prosecution.
30. From the evidence of different witnesses, it is also apparent that the victim has got enough opportunity to disclose the incident on earlier occasions since she had run away on 28.03.07. From different witnesses also it is clear as well as from the deposition of the victim that she has to go to the market and she had the opportunity to mix-up with different persons but nowhere she had complaint about the incident. It is not understood that, on 28.03.07 when she got an opportunity to meet PW-3 and PW-4, why she did not disclose about the incident except that she has given reason for running away from the house due to ill-treatment by her employer, all these create a bunch of doubts in the minds.
31. It is further apparent that she has disclosed about the incident only after some months when she was in the custody of the Impulse NGO Network after several counselling. Since she has given the statement under counselling that too after some months when she was in the custody of the NGO, in my considered view tutoring cannot be over ruled.
32. From the impugned Judgment & Order dated 27.11.12 passed in Case No. FTC(S) 2007, the learned Court below has noted that "The old scar appears on the hymen is no doubt the scar caused by rape as because PW-2 stated that bad thing was done to her until 26.03.07 and the medical examination conducted on her on 18.05.07". The learned Crl. Appeal No. 7 of 2012 Page 10 of 12 Court below has observed that, PW-2 i.e the victim girl remained unshaken in the cross-examination by the defence counsel and came to a conclusion for conviction. I could not understand how the learned Court below connect the old scar mark on the hymen as caused by rape and that too by the accused as medical evidence did not say anything specifically. It is true that in some cases, the evidence of the victim is sufficient for conviction provided it is trustworthy minus other doubts but in this instant case doubts arise in mind that, when the victim girl initially got an opportunity when she ran away on 28.03.07, why she did not disclose about the incident to PW-3, PW-4, PW-5 or to the police, why she had to disclose the matter only after such a belated stage.
33. On further perusal of the FIR (Exbt.-1), I do not find any cogent reason for filing the FIR after such a belated stage neither prosecution evidence could give any reasonable explanation during trial. From the FIR also it appears further that the victim has an aunty and after or when she met with the alleged abuse of rape, she had the occasion to meet with her aunty at Siliguri where she stayed with her but she did not disclose anything about the incident, this also create further doubt.
34. For the reasons discussed above, I am of the considered view that the evidences have failed to form a foolproof chain to establish the charge against the accused. It is a settled principle of law that, when from prosecution evidence two inferences can be drawn i.e. one in favour of the prosecution and another in favour of the accused, the inference which is in favour of the accused to be adopted.
35. Since in this instant case, doubts arise from the prosecution evidence and it remained open for two interpretations, therefore, I am of the considered opinion that, conviction awarded to the accused is not in accordance with the spirit of law, hence I am unable to agree with the impugned Judgment & Order dated 27.11.12. Crl. Appeal No. 7 of 2012 Page 11 of 12
36. Accordingly, the impugned Judgment & Order dated 27.11.12 is hereby set aside. Accused is acquitted on benefit of doubt. Judge, Fast Track Court is directed to take necessary steps to release the accused from custody in connection with this case provided if he not require in any other cases.
37. The Appeal is allowed and the matter stands disposed of.
JUDGE V. Lyndem Crl. Appeal No. 7 of 2012 Page 12 of 12