2024:MLHC:966
Serial No. 06
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
BA. No. 33 of 2024
Date of Decision 30.10.2024
Smti. Injora Sten
M/o Shri. Pynshemlad Sten
R/o H/No. 22, Klew Them
Village, Ri-Bhoi District,
Meghalaya.
…… Applicant
-Vs-
1. State of Meghalaya
Through 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
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Mr. S. Sengupta, Addl. PP. for R 1.
Ms. S. Nongsiej, Legal Aid Counsel
For R 2.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
JUDGMENT (ORAL)
1. Heard Mr. L. Syiem, learned counsel for the applicant, who
has submitted that this application has been filed by the mother of the
accused person, namely, Shri. Pynshemlad Sten under Section 483 of
the Bharatiya Nagarik Suraksha (BNSS), 2023 read with Section 31 of
the POCSO Act, 2012 with a prayer for grant of bail on behalf of the
said accused person in connection with Special POCSO Case No. 11 of
2024 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 Special
Judge (POCSO), Ri-Bhoi District, Nongpoh.
2. On the facts of the case, the learned counsel submits that
an 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. The
complaint being made therein is that the accused person in question had
committed an act of sexual penetrative assault on the person of the
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survivor, as a result of which, the survivor became pregnant and gave
birth to a female child in the month of April, 2024.
3. The main contention of the learned counsel for the prayer
made in this application is that, not denying the fact that the act of
sexual intercourse between the accused person and the survivor having
taken place, however, the fact that the survivor had never in her
statement before the police under Section 161 or before the Magistrate
under Section 164 Cr.P.C as well as in her deposition before the court as
PW. 1, wherein she has admitted to having consensual sex with the
accused person, who she claimed to be her boyfriend, and was pregnant
as a result thereof.
4. This being the case, the learned counsel has submitted that
the accused person being in custody for almost 8(eight) months, and
that the investigation having been completed and the trial is at the stage
of recording of evidence, it would be futile for any further incarceration
of the said accused person or rather, it would be quite in keeping with
the settled principle of bail jurisprudence as well as his right under
Article 21 of the Constitution of India to be given the liberty to contest
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his case before the court concerned in an atmosphere which is suitable
and congenial to him.
5. It is the further submission of the learned counsel that the
accused person has no criminal antecedent, and, if enlarged on bail, he
is prepared to abide by any conditions that this Court may deem fit and
proper to impose. In this connection, the learned counsel has referred to
the case of John Franklin Shylla v. State of Meghalaya & Anr
reported in 2023 SCC OnLine Megh 303 at para 13, wherein this Court
has observed that the victim therein, although a minor, however, being
about 16 years of age or so at the relevant point of time, the physical
and mental development of an adolescent of that age group, such person
is capable of making a conscious decision as regard to her well-being,
vis-à-vis, the act of sexual intercourse. The survivor being about 16
years of age or so at the relevant point of time, therefore, having
admitted to the act being consensual, the accused person not being at
fault entirely, at this stage, he may be allowed to go on bail.
6. Per contra, Mr. K. Khan, learned PP appearing for the State
respondent No. 1, while opposing the prayer made in this application,
has submitted that the accused person and the survivor had had sexual
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intercourse, the survivor being a minor, therefore, consent of such act,
would not stand the scrutiny of law in this regard, and as such, the
accused person is liable to be punished under the relevant provision of
law.
7. The learned PP has also stressed on the fact that the act of
sexual assault has affected the survivor, inasmuch as, her standing in
society and the course of her life has been drastically affected by such
an act perpetrated upon her, on top of the fact that she is under the
bearer of a baby girl, whose paternity has been refused to be
acknowledged by the accused person. Under such circumstances, it
would be prudent to let the accused remain in custody till conclusion of
the trial.
8. Ms. S. Nongsiej, learned Legal Aid Counsel appearing on
behalf of the respondent No. 2/complainant, who is also the mother of
the survivor has submitted that the prayer made in this application is
vehemently opposed on the ground that apart from the fact that the
accused person has committed a serious offence, which has outraged
the modesty of a young girl, even when she had given birth to a child
out of such force union, the denial of the accused person to own up and
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take responsibility as the father of the child has also greatly affected the
survivor, and there is apprehension that, if enlarged on bail, he will
threaten the survivor. Under such circumstances, this application may
not be allowed, submits the learned Legal Aid Counsel.
9. This Court has taken into account the facts and
circumstances of the case, and is made to understand that the accused
person in the first place has not made any denial of the alleged sexual
act between him and the survivor as has been indicated in the FIR. The
only defence that the accused person has, is that the act was consensual
since the survivor is his girlfriend, and there was no force or coercion
from his part when the said act was constituted.
10. As to the admission of being the father of the said child, the
accused person has not completely denied such fact, but has stated that
in the condition that he is in, that is, being in custody, he is not able to
interact his family members about the matter, and perhaps, if enlarged
on bail, his family member may approach the survivor and her family
member to discuss about the issue.
11. This Court at this stage, is only to consider the aspect of
whether the bail can be granted or not. Under the prevailing
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circumstances, the investigation having been completed, and evidence
is underway with the survivor herself having deposed as PW. 1,
therefore, there is no apprehension of evidence being tampered or even
of the survivor as the main witness being intimidated as that would
serve no purpose as far as the proceedings before the Trial Court is
concerned.
12. Focusing mostly on the issue of whether bail can be granted
or not, this Court, at this juncture, finds it unnecessary to let the accused
person linger in custody, but rather as has been submitted, it would be
in furtherance of his right to allow the accused person to be enlarged on
bail, so that he can defend his case properly.
13. Be that as it may, this Court would refrain from making any
observation as far as the issue of paternity of the child is concerned,
though the learned Legal Aid Counsel has pointedly submitted that the
DNA test having been conducted, the paternity of the accused person as
the father of the child is confirmed.
14. Since prima facie, it appears that no force or physical assault
has been employed at the time when the alleged act was committed by
the accused person, it would be left to the wisdom of the Trial Court on
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appreciation of the complete body of evidence to come to a conclusion
as to his guilt or innocence.
15. At this point of time, this Court is inclined to allow the
accused person to be enlarged on bail on imposing certain conditions,
violation of which will allow the prosecution to make a prayer for
cancellation of the bail. Accordingly, this application is allowed.
16. The accused person, Shri. Pynshemlad Sten is directed to be
released on bail, if not wanted in any other case on the following
conditions that:
i) He shall not abscond or tamper with the evidence or
witnesses;
ii) He shall appear before the Trial Court as and when
required;
iii) He shall not leave the jurisdiction of the State of
Meghalaya without prior permission of the Trial
Court;
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iv) He shall have no physical contact or even verbal
contact with the survivor during the pendency of the
trial; and
v) He shall bind himself on a personal bond of ₹
20,000/- (Rupees twenty thousand) only with one
surety of like amount to the satisfaction of the Trial
Court.
17. In view of the above noted observations, this application is
accordingly disposed of. No costs.
Judge
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