BA/33/2024 of INJORA STEN Vs STATE OF MEGHALAYA AND ANR on 30 October 2024

1. State of MeghalayaThrough the Superintendent of Police,Ri-Bhoi District,Meghalaya.2.Smti. Ibadahun Kharsati,(Complainant)W/o Shri. Robis Sten,R/o Klew Them Village,793103,Ri-Bhoi District,Meghalaya. …… Respondents

Coram:

Hon’ble Mr. Justice W. Diengdoh, Judge

Appearance:

For the Petitioner/Appellant(s): Mr. L. Syiem, Adv.For the Respondent(s): Mr. K. Khan, PP. with Mr. S. Sengupta, Addl. PP. for R 1.Ms. S. Nongsiej, Legal Aid CounselFor R 2.

i) Whether approved for reporting in Law journals etc.:

Yes/No

ii) Whether approved for publication in press:

Yes/No

JUDGMENT (ORAL)

1. Heard Mr. L. Syiem, learned counsel for the applicant, whohas submitted that this application has been filed by the mother of theaccused person, namely, Shri. Pynshemlad Sten under Section 483 ofthe Bharatiya Nagarik Suraksha (BNSS), 2023 read with Section 31 ofthe POCSO Act, 2012 with a prayer for grant of bail on behalf of thesaid accused person in connection with Special POCSO Case No. 11 of2024 under Section 376 (2)(j) IPC, 354B read with Section 3(a)/5(j)(ii)/6 of the POCSO Act pending before the Court of the learned SpecialJudge (POCSO), Ri-Bhoi District, Nongpoh.

2. On the facts of the case, the learned counsel submits thatan FIR dated 23.01.2024 was lodged by the mother of Miss. X(survivor) who was about 16 years old at the relevant point of time. Thecomplaint being made therein is that the accused person in question hadcommitted an act of sexual penetrative assault on the person of the survivor, as a result of which, the survivor became pregnant and gavebirth to a female child in the month of April, 2024.

3. The main contention of the learned counsel for the prayermade in this application is that, not denying the fact that the act ofsexual intercourse between the accused person and the survivor havingtaken place, however, the fact that the survivor had never in herstatement before the police under Section 161 or before the Magistrateunder Section 164 Cr.P.C as well as in her deposition before the court asPW. 1, wherein she has admitted to having consensual sex with theaccused person, who she claimed to be her boyfriend, and was pregnantas a result thereof.

4. This being the case, the learned counsel has submitted thatthe accused person being in custody for almost 8(eight) months, andthat the investigation having been completed and the trial is at the stageof recording of evidence, it would be futile for any further incarcerationof the said accused person or rather, it would be quite in keeping withthe settled principle of bail jurisprudence as well as his right underArticle 21 of the Constitution of India to be given the liberty to contest his case before the court concerned in an atmosphere which is suitableand congenial to him.

5. It is the further submission of the learned counsel that theaccused person has no criminal antecedent, and, if enlarged on bail, heis prepared to abide by any conditions that this Court may deem fit andproper to impose. In this connection, the learned counsel has referred tothe case of John Franklin Shylla v. State of Meghalaya & Anrreported in 2023 SCC OnLine Megh 303 at para 13, wherein this Courthas observed that the victim therein, although a minor, however, beingabout 16 years of age or so at the relevant point of time, the physicaland mental development of an adolescent of that age group, such personis capable of making a conscious decision as regard to her well-being,vis-à-vis, the act of sexual intercourse. The survivor being about 16years of age or so at the relevant point of time, therefore, havingadmitted to the act being consensual, the accused person not being atfault entirely, at this stage, he may be allowed to go on bail.

6. Per contra, Mr. K. Khan, learned PP appearing for the Staterespondent No. 1, while opposing the prayer made in this application,has submitted that the accused person and the survivor had had sexual intercourse, the survivor being a minor, therefore, consent of such act,would not stand the scrutiny of law in this regard, and as such, theaccused person is liable to be punished under the relevant provision oflaw.

7. The learned PP has also stressed on the fact that the act ofsexual assault has affected the survivor, inasmuch as, her standing insociety and the course of her life has been drastically affected by suchan act perpetrated upon her, on top of the fact that she is under thebearer of a baby girl, whose paternity has been refused to beacknowledged by the accused person. Under such circumstances, itwould be prudent to let the accused remain in custody till conclusion ofthe trial.

8. Ms. S. Nongsiej, learned Legal Aid Counsel appearing onbehalf of the respondent No. 2/complainant, who is also the mother ofthe survivor has submitted that the prayer made in this application isvehemently opposed on the ground that apart from the fact that theaccused person has committed a serious offence, which has outragedthe modesty of a young girl, even when she had given birth to a childout of such force union, the denial of the accused person to own up and take responsibility as the father of the child has also greatly affected thesurvivor, and there is apprehension that, if enlarged on bail, he willthreaten the survivor. Under such circumstances, this application maynot be allowed, submits the learned Legal Aid Counsel.

9. This Court has taken into account the facts andcircumstances of the case, and is made to understand that the accusedperson in the first place has not made any denial of the alleged sexualact between him and the survivor as has been indicated in the FIR. Theonly defence that the accused person has, is that the act was consensualsince the survivor is his girlfriend, and there was no force or coercionfrom his part when the said act was constituted.

10. As to the admission of being the father of the said child, theaccused person has not completely denied such fact, but has stated thatin the condition that he is in, that is, being in custody, he is not able tointeract his family members about the matter, and perhaps, if enlargedon bail, his family member may approach the survivor and her familymember to discuss about the issue.

11. This Court at this stage, is only to consider the aspect ofwhether the bail can be granted or not. Under the prevailing circumstances, the investigation having been completed, and evidenceis underway with the survivor herself having deposed as PW. 1,therefore, there is no apprehension of evidence being tampered or evenof the survivor as the main witness being intimidated as that wouldserve no purpose as far as the proceedings before the Trial Court isconcerned.

12. Focusing mostly on the issue of whether bail can be grantedor not, this Court, at this juncture, finds it unnecessary to let the accusedperson linger in custody, but rather as has been submitted, it would bein furtherance of his right to allow the accused person to be enlarged onbail, so that he can defend his case properly.

13. Be that as it may, this Court would refrain from making anyobservation as far as the issue of paternity of the child is concerned,though the learned Legal Aid Counsel has pointedly submitted that theDNA test having been conducted, the paternity of the accused person asthe father of the child is confirmed.

14. Since prima facie, it appears that no force or physical assaulthas been employed at the time when the alleged act was committed bythe accused person, it would be left to the wisdom of the Trial Court on appreciation of the complete body of evidence to come to a conclusionas to his guilt or innocence.

15. At this point of time, this Court is inclined to allow theaccused person to be enlarged on bail on imposing certain conditions,violation of which will allow the prosecution to make a prayer forcancellation of the bail. Accordingly, this application is allowed.

16. The accused person, Shri. Pynshemlad Sten is directed to bereleased on bail, if not wanted in any other case on the followingconditions that:

i)He shall not abscond or tamper with the evidence orwitnesses;witnesses;

ii)He shall appear before the Trial Court as and whenrequired;required;

iii)He shall not leave the jurisdiction of the State ofMeghalaya without prior permission of the TrialMeghalaya without prior permission of the Trial Court;

iv)He shall have no physical contact or even verbalcontact with the survivor during the pendency of thetrial; andcontact with the survivor during the pendency of thetrial; and

v)He shall bind himself on a personal bond of ₹20,000/- (Rupees twenty thousand) only with onesurety of like amount to the satisfaction of the TrialCourt.20,000/- (Rupees twenty thousand) only with onesurety of like amount to the satisfaction of the TrialCourt.

17. In view of the above noted observations, this application isaccordingly disposed of. No costs.

Judge