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IN THE HIGH COURT OF MEGHALAYA
MOHAMMAD YAQOOB MIR, H.S. THANGKHIEW, JJ.
Small Phawa - Appellant
Versus
State of Meghalaya and Others - Respondent
Criminal Appeal No. 5 of 2016
Decided On : 02-04-2019
Rape - Minor - Section 376 IPC - Summary of Acts and Sections: Section 376 IPC - The court convicted the appellant for committing an offence punishable under Section 376 IPC. The victim, a minor, was forcibly taken by the accused and sexually assaulted. The court ordered 10 years rigorous imprisonment and a fine of Rs.5000/-, with a default sentence of one month simple imprisonment. The Meghalaya Victim Compensation Scheme, 2014 was also invoked for compensation to the victim.
Fact of the Case:
The victim, a minor, was forcibly taken by the accused and sexually assaulted. The victim's family reported the incident to the police, leading to the trial and subsequent appeal.
Finding of the Court:
The court found the accused guilty of raping a minor and upheld the conviction and sentence, with a slight modification in the default imprisonment period.
Issues: The main issues were the age of the victim, consent, fair trial, and the impact of re-trial on the accused.
Ratio Decidendi: The court determined the victim's age based on witness testimonies and medical reports, rejected the consent argument due to the victim's minor status, and upheld the fair trial principles. The impact of re-trial on the accused was found to be unsubstantiated.
Final Decision: The appeal was dismissed, and the conviction and sentence of the accused were upheld with a slight modification in the default imprisonment period.
MOHAMMAD YAQOOB MIR, J.
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 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:-
"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 int
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