SMALL PHAWA Vs. STATE OF MEGHALAYA

JUDGEMENT

(1.) Heard learned counsel for the parties on the application seeking suspension of the execution of sentence and perused the record.

(2.) The applicant herein has been convicted for the offence under Section 376 IPC with the finding that he was guilty of committing rape on a minor and has been sentenced, inter-alia, to rigorous imprisonment for a period of ten years. The appeal against the impugned judgment and order dated 27.09.2016 has already been admitted for consideration.

(3.) Pressing for his application for suspension of execution of sentence, learned senior counsel for the appellant has argued that after this matter was sent for re-trial by this Court by way of the order dated 28.04.2016 in Criminal Appeal No.4 of 2015, the learned Sessions Judge totally misread the order remitting the matter; and proceeded as if to carry out a de novo trial; and further witnesses were examined and re-examined, which was not a course permitted by law. The learned senior counsel has further argued that the prosecution has failed to establish that the prosecutrix was a minor at the time of the alleged incident. It is submitted that the entire story of ossification test is suffering from several loopholes and even the X-Ray Plate is not available on record. It is also submitted that the school certificate could have been called for but, no such evidence were produced and instead, a certificate of uncertain nature was produced by the grandfather of the prosecutrix (who was examined as PW1) at Exhibit-6 but then, even the author of the said certificate was not produced. Thus, according to the learned counsel, the said certificate was neither proved nor has any probative value. Learned senior counsel has further submitted that the investigation in this matter has been suffering from several shortcomings where the alleged clothes were not sent for FSL report and even the vaginal swab was also not sent for FSL report. Thus, according to the learned senior counsel for the appellant, there being no evidence of rape, the conviction cannot be sustained in this case.