Shri. Md. Nasir Khan vs . State Of Meghalaya & 2 Ors.
2022 Latest Caselaw 225 Meg

      Serial No. 01
      Supplementary
      List



                        HIGH COURT OF MEGHALAYA
                            AT SHILLONG

 Crl.A. No. 7 of 2021

                                                       Date of Decision: 20.05.2022
 Shri. Md. Nasir Khan                  Vs.             State of Meghalaya & 2 Ors.
 Coram:
                Hon'ble Mr. Justice W. Diengdoh, Judge

 Appearance:
 For the Petitioner/Appellant(s)   :             Mr. K.Ch. Gautam, Adv.
 For the Respondent(s)             :             Mr. B. Bhattacharjee, AAG. with

Mr. A.H. Kharwanlang, GA.

 i)       Whether approved for reporting in                         Yes/No
          Law journals etc.:

 ii)      Whether approved for publication
          in press:                                                 Yes/No



                         JUDGMENT AND ORDER

1. The appellant as the accused was convicted in connection with

Special POCSO Case No. 45 of 2015 for committing an offence punishable

under Section 10 of the Protection of Children from Sexual Offences

(POCSO) Act, 2012, by judgment dated 26.03.2021 and sentence dated

31.03.2021, and was directed to undergo imprisonment for five years and six

months and fine of ₹ 3,00,000/- (Rupees three lakhs) in default of payment

to further undergo another year of imprisonment.

2. Being highly aggrieved and dissatisfied with the said judgment

and sentence, the appellant has approached this Court with this appeal under

Section 374(2) Cr.P.C, 1973.

3. A brief background of the matter leading to the preference of this

appeal germinates from an FIR lodged on 01.08.2015 before the Officer-In-

Charge, Khanapara Police Station, Ri-Bhoi District by respondent No.

3/complainant to the effect that, a complaint was made alleging that the

appellant herein had sexually assaulted the minor victim, son of the

complainant who came to know of the incident when the said son told the

complainant that he should not be punished if he failed in his exams and on

being asked what happened, he explained that the appellant/accused had

sexually assaulted him many times during the night time and he dare not tell

anyone even to his aunt, the wife of the accused because he was afraid.

4. Accordingly, a case was registered being Khanapara P.S. Case

No. 33(8) of 2015 under Section 377 IPC read with Section 4/6 of the

POCSO Act. On completion of the investigation, the Investigating Officer

filed the chart sheet indicating that a prima facie case was found well

established against the appellant/accused for which he has to stand trial.

5. The learned Special Judge (POCSO) took cognizance of the

offence in Special POCSO Case No. 45/2015 and charges were framed under

Section 377 IPC & under Section 4/6 of the POCSO Act against the accused

on 21.03.2016. However, on 05.03.2021, the learned Special Judge has

altered the charges and the appellant/accused was thereafter charged with the

offence under Sections 6 and 10 of the POCSO Act.

6. Thereafter, the prosecution has examined as many as five

witnesses and after closure of the prosecution's evidence, the statement of

the appellant/accused was recorded under Section 313 Cr.P.C and on being

allowed to adduce evidence from his side, the appellant/accused called three

witnesses to the witness box and their evidence was recorded as DW-1, DW-

2 and DW- 3 respectively. On consideration of the argument of the parties,

the Trial Court vide the impugned judgment had accordingly convicted the

appellant/accused herein under Section 10 of the POCSO Act.

7. Mr. K.Ch. Gautam, learned counsel for the appellant has

submitted that basically, the appellant is aggrieved by the impugned

judgment and sentence as the same was based solely on the evidence of the

alleged victim whose testimony was full of contradiction and discrepancies,

the second limb of the argument is that the appellant was not given the

opportunity of a fair trial, inasmuch as, the witnesses were not recalled for

re-examination after the charges were altered which was done right before

the judgment was pronounced.

8. Mr. B. Bhattacharjee, learned AAG arguing on behalf of the State

respondent has submitted that there is no infirmity found in the impugned

judgment and the same being well reasoned, the conviction of the appellant

is justified and may not be disturbed by this Court.

9. The learned counsel for the appellant has found fault with the

evidence of the PW-1, who is the mother of the victim and who has lodged

the FIR on 01.08.2015 and has submitted that the statement of this witness

in the court in comparison with the statement made under Sections 161 and

164 Cr.P.C shows that there is discrepancy and marked improvement. An

instance was pointed out when in the FIR, this witness has stated that the

incident occurred about one month back, while in her statement under

Section 161 Cr.P.C, she stated that the incident occurred two months back

and again, in her evidence in the court, she said that the incident occurred on

31.07.2015 that is one day before the lodgment of the FIR.

10. The learned counsel has also submitted that from a plain reading

of the FIR, it is clear that it was the PW-1 who has physically abused the

victim and has forced him to falsely implicate the appellant. According to

her version, the victim disclosed about the incident to her on 31.07.2015, but

she has lodged the FIR only on 01.08.2015, no explanation was given as to

why the FIR was lodged belatedly after one day. The fact that this witness

has also sent the victim to school on the day the FIR was lodged and that too

after having spent the night in the house of the appellant casts serious doubt

on the truthfulness of her claim.

11. PW-1 has also stated that she came to visit the victim after so

many months whereas the fact that on 30.06.2015, she along with DW-2, the

son of the appellant had gone to Nongpoh to register a Deed of Declaration

indicated that she was in the house of the appellant on that day.

12. The learned counsel for the appellant has also sought to attribute

motive to the action of the PW-1 in filing of the FIR to the fact that there is

a property dispute between her and her elder sister, the wife of the appellant

which was evident from the complaint (Mark A/1) dated 19.08.2015 filed

with the Sub-Registrar, Ri-Bhoi District, Nongpoh against her said elder

sister as there is a dispute regarding a family property which was sold and in

which she wanted equal share which was not given to her.

13. On the evidence of the victim who was examined as PW-5, the

learned counsel for the appellant has submitted that the statement of the

victim under Section 161 Cr.P.C as well as under Section 164 Cr.P.C

revealed a vast difference when in his statement under Section 161 Cr.P.C,

he has stated that the appellant had sexually assaulted him while under

Section 164 Cr.P.C, he stated that the appellant used to insert his private part

into his anus. Again, under Section 161 Cr.P.C, he has stated that he was

afraid to inform about the incident to DW-3, his aunty who is the wife of the

appellant, but under Section 164 Cr.PC, he has stated that he has told DW-3

about the pain and bleeding in his anus. Even in his deposition before the

court, he has stated that he did not tell DW-3 about the incident.

14. It is further submitted that the victim in his statement under

Section 164 Cr.P.C has mentioned that he was sexually abused every night,

however, in his evidence, he has deposed that he was sexually abused many

times and it was only when the appellant knew that when his mother was

coming the abuse would stop. Again, the victim in his evidence has stated

that the appellant used to put his penis behind his back and rubbed his lungi

which is an obvious indication of his testimony being tutored so as to make

the same believable in the absence of medical evidence which has indicated

that there was no sign of sexual abuse in the private parts of the victim. In

this regard, the Trial Court in the impugned judgment has also pointed out

that there are discrepancies in the statement of the victim, which only proves

that the evidence of the victim is not of sterling quality and the Trial Court

ought not to have relied on such sole testimony to convict the appellant

herein.

15. On the medical evidence, the learned counsel for the appellant has

submitted that the doctor who had examined the victim as well as the

appellant and who was also examined as PW-3 in the proceedings before the

Trial Court has deposed that on examination of the victim, he did not find

any physical injury or any evidence of sexual offence which was confirmed

by the medical report to the extent that it is affirmed that there was no

bleeding, no tear, no discharge, no oedema and no tenderness in anus and

rectum of the victim.

16. Coming to the evidence of the Investigating Officer who was

examined as PW-4, the learned counsel for the appellant has submitted that

the I/O has not done a complete investigation in the case, inasmuch as, he

has not examined any of the neighbours or the wife of the appellant as well

as the son and daughter of the appellant as witnesses, inspite of the presence

in the place of occurrence. Even the statement of the Headman, the Secretary

of the village, the maternal uncle, the cousin sister and the owner of the

Borthakur Clinic Hospital was not taken down by the said I/O and as such,

his evidence cannot be relied upon.

17. On the contrary, the evidence of DW-1 (Sub-Registrar) who has

testified to the authenticity of the Deed of Declaration dated 30.06.2015,

bearing Regn. No. 455/84 was not duly taken note of by the learned Trial

Court to establish the fact that a landed property was involved as far as the

PW-1 and DW-3 (wife of the appellant) are concerned and which property

was the source of a dispute as regard the share of the proceeds from the sale

of the said property which according to the appellant, is the main reason why

the PW-1 had instituted a false complaint against the appellant as she has

demanded more share than was given to her.

18. The second limb of the argument advanced by the learned counsel

for the appellant is that the Trial Court has committed a manifest error in law

when the charges against the appellant was altered before passing of the

impugned judgment, but without any opportunity being given to the

appellant to recall the witnesses for further cross examination as is provided

under Section 217 Cr.P.C. The grounds cited by the learned Trial Court that

the appellant has not filed an application under Section 217 Cr.P.C to recall

the witnesses, but had instead filed an application under Section 311 Cr.P.C

for recall of PW-1 for the purpose of re-cross examination and also for

calling an additional witness as DW-4 is not a good ground to deprive the

appellant of the right to recall the witnesses when the charges was altered.

On this ground alone, the impugned judgment and order is liable to be set

aside and quashed, submits the learned counsel for the appellant.

19. In support of his case, the learned counsel for the appellant has

cited the following decisions: -

       (i)       Plis      Khymdeit      v.     State            of        Meghalaya:

                 MANU/MG/0026/2020, paragraphs 54, 55 & 56.

       (ii)      Rai Sandeep v. State (NCT of Delhi): (2012) 8 SCC 21,

                 paragraph 22.

       (iii)     Krishan     Kumar     Malik       v.        State    of     Haryana:

                 MANU/SC/0718/2011, paragraphs 24 & 31.

       (iv)      Goma Chettri v. Bhuban Chandra Sharma: 2013 SCC

                 Online Megh 194, paragraphs 8, 22 & 23.

       (v)       Kali Ram v. State of Himachal Pradesh: (1973) 2 SCC 808,

                 paragraph, 25.

       (vi)      Kailash Sonkar & Ors. v. State of Chattisgarh: 2021 SCC

                 Online Chh 3258, paragraph 18.

       (vii) Swapan         Kumar     Chatterjee        v.    Central      Bureau   of

Investigation: (2019) 14 SCC 328, paragraphs 9, 10 & 11.

(viii) Natasha Singh v. Central Bureau of Investigation: (2013) 5

SCC 741, paragraphs 8, 15, 16, 20, 21 & 22.

       (ix)      Bhuboni Sahu v. The King: 1949 SCC Online PC 12,

                 paragraph 2.

       (x)       Manik Gazi v. Emperor: 1941 SCC Online Cal 276,

                 paragraph 2.

       (xi)      Ram Lakhan Sheo Charan & Ors. v. State of UP: 1991 SCC




               Online All 1006, paragraphs 11 & 12.

(xii) State of Rajasthan v. Ram Babu: 2008 SCC Online Raj 495,

paragraph 14.

(xiii) Deepak v. State of Haryana: (2015) 4 SCC 762, paragraphs

16, 25, 26 & 27.

20. In reply, Mr. B. Bhattacharjee, learned AAG appearing on behalf

of the State respondent while resisting the argument advanced by the learned

counsel for the appellant, has at the outset briefly narrated the facts of the

case which need not be repeated as the same has been enumerated above.

21. Coming to the evidence, the learned AAG has submitted that the

statement of the victim as PW-5 has explicitly shown that the appellant has

been sexually assaulting him when he has stated in his statement under

Section 161 Cr.P.C, that the appellant would sexually assault him at night by

inserting his penis in his anus and had continued to do so for about two

months, the last being in the month of June 2015. The victim has further

stated that he did not tell his aunt (wife of the appellant) as he was scared of

her. He was able to relate the incident to his mother only on 31.07.2015 when

she came home. The victim has further stated that he has finally told his aunt

about the pain in his anus and that blood used to come out to which the aunt

brought him medicine and told the appellant to apply. The appellant would

apply the medicine, but continued in sexually assaulting the victim at night.

22. The learned AAG has further submitted that from the statement

of the victim, it is very apparent that he was abused in the house of his aunt

and the appellant when he was made to wash the clothes of the appellant and

his aunt and was often beaten by the appellant for small reasons which has

caused him to be scared to even tell his aunt about the sexual abuse by the

appellant.

23. Coming to the evidence of PW-1 (Complainant), it is submitted

that her evidence is reliable and unshaken, inasmuch as, she has stated that

the victim had informed her about the sexual abuse on 31.07.2015 and has

graphically given the details of how the appellant had sexually assaulted him

by inserting his private part inside his anus on many occasions and would

ejaculate his semen on his anus resulting in bleeding from the anus. The

victim has also told her that he did not tell his aunt as he was scared of her.

The complainant has also stated that the appellant has been sexually abusing

the victim for two months and the last time it happened was one month before

filing of the FIR.

24. On the allegation of the appellant that the complainant (PW-1)

has filed the complaint as a retaliation on account of the alleged property

dispute between the sisters that is PW-1 and DW-3, it is submitted that the

complainant has already received her share of dividend arising of the sale of

the land and as such, there is no longer any dispute in this regard. DW-3 in

her evidence has also confirmed this fact when she stated that there was no

dispute between herself and her sister.

25. As to the evidence of PW-3, Dr. Sandip K. Sangma and also that

of PW-4 the I/O, the learned AAG has submitted that their depositions are

not contradictory to the statement made by the victim and the complainant.

Even the deposition of DW-1 has also confirmed whatever was stated by the

complainant.

26. The learned AAG has again submitted that the Trial court has

rightly rejected the application filed by the appellant under Section 311

Cr.P.C to recall PW-1 and also to summon an additional defence witness as

DW-4 since it is simply to delay the progress of the trial and as such, there

is no infirmity in the said order rejecting the prayer of the appellant as

mentioned above.

27. As to the application of Section 217 Cr.P.C, the learned AAG has

submitted that the appellant has not filed any application for recall of

witnesses and even if such an application is filed, the Trial Court is well

within its right to reject such application as the same would only cause delay

in the proceedings and would defeat the ends of justice.

28. Reiterating the contention that even on the basis of the sole

testimony of a witness, if found reliable and trustworthy, the Court can safely

convict the accused. This proposition is supported by the authorities cited in

the case of Vijay v. State of M.P: (2010) 8 SCC 191, paragraphs 9 to 14.

29. It is therefore prayed that this appeal has no merit and the same is

liable to be dismissed.

30. This Court on consideration of the submission made by the

parties, has thought it fit and proper that in cases involving alleged violation

of the person of a minor, apart from the legal consequences what is also

required to be considered is the mental anguish and trauma undergone by the

victim which has to suitably redressed, albeit, in due procedure of law. On

the other hand, as a Court, it cannot be lost sight of that a person accused of

such a serious and heinous offence must equally be afforded the best possible

defence so as to enable the court to arrive at a verdict which demands only

the highest level of judicial scrutiny as is the case in criminal jurisprudence

that an accused can be convicted only after the evidence and other materials

on record would leave the court with no other option, but to come to the

conclusion that the guilt of the accused has been proved beyond reasonable

doubt.

31. It also goes without saying that an appeal is but a continuation of

the trial and an appellate court can not only examine the legality or otherwise

of the Trial Court, but can even examine the contents of the proceedings to

correct any error or inadvertence committed by the Trial Court.

32. This Court's attention is drawn to the aspect of likely prejudice

caused to the appellant when it was submitted that the Trial Court after

alteration of the charges right before pronouncement of the judgment has not

afforded the appellant with the opportunity to recall the prosecution

witnesses for re-examination and that the provision of Sections 216 and 217

of the Code of Criminal Procedure was not adhered to in the true sense of the

provisions.

33. Section 216 Cr.P.C. reads as follows:

"216. Court may alter charge. - (1) Any Court may alter or add to any charge at any time before judgment is pronounced.

(2) Every such alteration or addition shall be read and

explained to the accused.

(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court to prejudice the accused in his defence or the prosecutor in the conduct of the case the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.

(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.

(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded."

34. Section 217 Cr.P.C. reads as follows:

"217. Recall of witnesses when charge altered. - Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed-

(a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re- examine such witness for the purpose of vexation or delay or for defeating the ends of justice;

(b) also to call any further witness whom the Court may think to be material."

35. From the records, it is seen that the learned Special Judge vide

order dated 12.03.2021 has noted the fact that charges were altered/added on

05.03.2021 and soon after that, the prosecution and the defence were heard

on a petition filed under Section 311 Cr.P.C, wherein the defence has prayed

for recalling the PW-1 for re-cross examination. However, an observation

was made by the learned Special Judge that the learned counsel for the

defence has submitted that after the alteration of the charges, the accused will

be prejudiced if the trial proceed without the defence being given the chance

to change the defence strategy and therefore, that the court should proceed

under Section 217 Cr.P.C. This prayer was rejected on the ground that there

was no petition filed under Section 217 and the court cannot determine who

the defence wishes to recall and examine with respect to the altered/added

charge. Another reason given is that the case has been pending for five years

and as such, the said objection was only for delaying the proceedings.

36. In the course of a criminal trial, after the charges have been

framed and perhaps evidence has been led, whether concluded or not yet

concluded, the court is of the view that the charge(s) has to be altered or

added, the enabling provision is Section 216 of the Code of Criminal

Procedure.

37. In the case under consideration, the learned Special Judge has

framed two charges against the accused/appellant, firstly, under Section 377

IPC and secondly, under Section 4/6 of the POCSO Act on 21.03.2016.

38. After evidence has been led, it is obvious that the prosecution has

produced its witnesses to prove the charges as pointed out above. Similarly,

the accused/appellant would have cross-examined the prosecution witnesses

by trying to disprove the said charges.

39. The learned Special Judge after recording the deposition of the

prosecution witnesses and the defence witnesses in evidence, has however

on 05.03.2021 altered/added fresh charges and has framed the charges

against the accused/appellant firstly under Section 6 POCSO Act and

secondly, under Section 10 of the POCSO Act, thereby causing a significant

difference in the original charges framed against the accused and the fresh

charges framed, inasmuch as, Section 377 IPC and Section 4 of the POCSO

Act have been done away with and replaced by Sections 6 and 10 of the

POCSO Act. It is also noted that the altered/added charges were read over

and explained to the accused/appellant who pleaded not guilty.

40. A conjoint reading of Sections 216 and 217 Cr.P.C would show

that the accused person who is charged with the additional charge ought not

to be prejudice as far as his defence is concerned, inasmuch as, the new

charges may carry implications which have not been covered in the evidence

already recorded and for which the accused person ought to be given the

opportunity to further cross-examine the witnesses in line with the new or

altered charges. Similarly, the prosecution may also be prejudice by the new

or altered charges for which the witnesses may have to be recalled to

incorporate evidence in that regard.

41. Section 217 of the Code has created provision to allow the

prosecutor as well as the accused to recall or re-summon and examine the

witnesses with reference to such alteration or addition.

42. In this case, after the charges have been altered/added, the

accused/appellant has filed an application before the court for allowing

sometime to the accused for making submission on the point of whether the

said accused/appellant would be prejudice after alteration of the charges.

Another application was filed under Section 311 Cr.P.C for recalling PW-1

for re-cross-examination. The learned Special Judge while considering the

said application, after hearing the parties has vide order dated 12.03.2021

rejected the prayer of the accused and directed that the trial shall proceed.

43. Now the question arises as to whether the provisions of Sections

216 and 217 are mandatory or not. To answer this question, the Hon'ble

Supreme Court in the case of R. Rachaiah v. Home Secretary, Bangalore:

(2016) 12 SCC 172, at paragraph 14 has held that:

"14... It hardly needs to be demonstrated that the provisions of Sections 216 and 217 are mandatory in nature as they not only subserve the requirement of principles of natural justice but guarantee an important right which is given to the accused persons to defend themselves appropriately by giving them full opportunity. Cross-examination of the witnesses, in the process is an important facet of this right. Credibility of any witness can be established only after the said witness is put to cross-examination by the accused person."

44. In the order dated 12.03.2021, the learned Special Judge though,

acknowledging the fact that the accused/appellant had made a prayer before

the court to proceed under Section 217 Cr.P.C presumably on the ground that

the alteration and addition of the new charges would prejudice him, has

rejected this submission on the ground that no petition under Section 217

Cr.P.C has been filed and that the objection is vexatious and filed only for

the purpose of delaying the matter.

45. Irrespective of the fact that an application under Section 217 has

been filed or not, the fact that a prayer to that effect has been made should

have been considered by the court given the mandatory nature of the

requirement to comply with the provision of Section 217 of the Code as was

held by the Hon'ble Supreme Court in the case of R. Rachaiah (supra).

46. The liberty of a person accused of an offence which carries the

consequence of imprisonment or confinement would be zealously

safeguarded by the courts and the alternative would be only after due

procedure of law is followed. Therefore, the golden principle of criminal

jurisprudence that an accused can be convicted only when the evidence and

materials on record points to his guilt beyond reasonable doubt has always

been the cornerstone as far as criminal trials are concerned. It goes without

saying that the accused/appellant should not be under the apprehension that

prejudice has been caused to him in course of the trial, if adequate

opportunity has not been afforded to him in defence of his case.

47. On consideration of the order dated 12.03.2021, this Court is of

the opinion that the mandatory provision of Section 217 of the Code has not

been adhered to by the learned Special Judge which has caused prejudice to

the accused/appellant, thereby resulting in the impugned judgment and order

of conviction against him.

48. To overcome this, it is, but proper that this Court in appeal

consider the prayer made by the accused under Section 217 of the Code and

to allow the same accordingly.

49. Without making any observation on the argument advanced by

the parties noted above, as far as the merits of this appeal is concerned, at

this juncture, this Court is of the considered opinion that the matter has to be

remanded to the court of the learned Special Judge to allow the parties to

place their case even to the extent of recalling witnesses for consideration on

the altered or added charges made against the accused/appellant.

50. In view of the above, the impugned judgment is hereby set aside

and quashed. Consequently, the matter is remanded to the Court of the

learned Special Judge (POCSO), Ri-Bhoi District, Nongpoh for fresh

consideration by allowing the parties to recall witnesses for re-examination

or cross-examination whatever the case may be.

51. On the impugned judgment and order being set aside and quashed,

the appellant is accordingly allowed to be released from conviction, but will

continue to be enlarged on bail with the same terms and conditions as was

set out in the earlier bail order passed in this regard.

52. Let copy of this order be issued upon the appellant free of cost as

well as upon the learned Special Judge (POCSO), Ri-Bhoi District Nongpoh

for compliance.

53. Registry is directed to send back the Lower Court case records.

Judge

Meghalaya 20.05.2022 "N.Swer, Stenographer"