FASTER BAREH Vs. STATE OF MEGHALAYA

JUDGEMENT

(1.) This appeal under Sec. 374(4) CrPC has been filed against the impugned Judgment and Order dtd. 17/4/2023 and the Order of Sentence of even date passed by the learned Sessions Judge, East Jaintia Hills District, Khliehriat, in Sessions Case No. 11 of 2022 convicting the appellant under Sec. 376 IPC and sentencing him to five years rigorous imprisonment with fine of Rs.10,000.00 (rupees ten thousand) only. 1. The fact of the case in brief is that on 15/6/2012, a written FIR was lodged by the PW-2(sister of the survivor) before the Officer -In-Charge, Khliehriat Police Station, alleging that on 14/6/2012 at around 8:30 PM the survivor was raped by the appellant at a place called Satad Jalaphet. On the basis of the said FIR, the Khliehriat PS Case No. 99(6)12 under Sec. 376 IPC was registered and investigated into. During the course of investigation, a prima facie case under Sec. 376 IPC was found well established against the appellant and accordingly a charge sheet vide CS No. 139/13 dtd. 20/11/2013 under Sec. 376 IPC was filed. On 9/3/2022, charge under Sec. 376 IPC was framed against the appellant and the matter proceeded for evidence. The prosecution examined 5(five) witnesses and exhibited 4(four) documents and 1(one) paper mark in support of its case. Thereafter, the statement of the appellant was recorded under Sec. 313 CrPC and 1(one) witness was examined as defence witness by the appellant. After hearing the parties, the learned trial court vide impugned Judgment and Order dtd. 17/4/2023 convicted the appellant and sentenced him to undergo rigorous imprisonment for 5(five) years and also imposed a fine of Rs.10,000.00.

(2.) Assailing the conviction, Mr. M. Lyngdoh, learned counsel submits that the FSL report, which is contradictory to the prosecution version of the case and the medical opinion of PW3, was purposely omitted by the prosecution in spite of the fact that the Director, FSL, Shillong was named as a witness in the list of witness attached to the charge sheet. Referring to the evidence of PW-1, the survivor, the learned counsel submits that even the statement of the survivor is contradictory on many accounts and does not make out a case of rape. The learned counsel submits that the appellant and the survivor were in a relationship at the time of the alleged incident and the survivor of her own free will accompanied the appellant on the day of the alleged incident. There is nothing in evidence to show or project that the appellant applied any force on the survivor or committed any crime. He contends that the PW2, who was against the relationship between the appellant and the survivor, filed a false FIR to harass the appellant. The learned counsel further submits that the survivor during the course of investigation declined to get her statement recorded under Sec. 164 CrPC inspite of several efforts by the investigating agency which clearly establishes that she was not at all interested in pursuing the accusation against the appellant. He submits that the learned trial court has adopted only prosecution version of the evidence and totally ignored the evidences which were in support of the appellant. He contends that the reason and finding recorded by the trial court is not tenable in law and the impugned judgment and order of conviction of sentence is liable to be set aside and quashed.

(3.) On the contrary, Mr. J. Thabah, learned GA appearing for the State respondent submits that the FSL report was never been exhibited before the trial court and the question of considering the same does not arise. He contends that if according to the appellant the FSL report was in his favour, he could have sought production of the same and got it exhibited before the trial court, but he failed to do so and as such, the appellant cannot raise any plea basing on the FSL report. The learned GA submits that in a case of sexual offence against women, the evidence of survivor alone is sufficient to convict the accused and in the instant matter, the survivor has clearly stated that she was raped by the appellant against her will. He contends that the medical report of survivor (Exhibit-P2) also supports the case of the prosecution and there is no reason for this Court to interfere with the impugned judgment and order of conviction. The learned GA places reliance on the decision of the Apex Court reported in (2020) 10 SSC 573, Ganesan Vs. State represented by its Inspector of Police and (2011) 2 SCC 550, State of Uttar Pradesh Vs. Chhotey Lal. to impress upon the Court as to who can be said to be a sterling witness and the weightage which the evidence of survivor should be received in a criminal trial.