High Court of Meghalaya
Shri. Kalbestar Wankhar vs . State Of Meghalaya. on 12 August, 2024
Serial No.10
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
Crl. A. No. 17 of 2023 Date of Order: 12.08.2024
____________________________________________________________
Shri. Kalbestar Wankhar Vs. State of Meghalaya.
Coram:
Hon'ble Mr. Justice B. Bhattacharjee, Judge
Appearance:
For the Petitioner/Appellant(s) : Ms. S. Nongsiej, Adv.
For the Respondent(s) : Mr. N. D. Chullai, AAG with(R: - 1 ).
Ms. Z.E. Nongkynrih, GA.
ORAL:-
Heard learned Counsels appearing for the parties.
This is an appeal against the judgment of conviction dated 16-11-
2022 and order of sentence dated 18-11-2022 passed in Special POCSO
Case No. 35 of 2016 by the Special Judge (POCSO), East Khasi Hills
District, Shillong whereby the appellant was convicted under Section 4 of
the POCSO Act and sentenced to undergo rigorous imprisonment for seven
years and also to pay a fine of Rs.25,000/- and in default of payment, to
undergo simple imprisonment for another six months.
During the pendency of the appeal, the plea of juvenility of the
appellant has been raised for the first time by filing the Misc. Case No. 56
of 2024. According to the appellant, he was born on 07-04-1999 and was a
minor at the time of occurrence of the incident. The learned Counsel for
the appellant submits that there exists a birth certificate issued by the
competent authority of the State Government in support of the
aforementioned date of birth of the appellant and hence, the issue of
juvenility of the appellant is required to be considered before the appeal is
taken up for consideration on merit.
The learned Counsel for the appellant also prays for suspension of
sentence and release of the appellant on bail. The learned Counsel relied
upon the decision of the Apex Court reported in (1999) 4 SCC 421 and the
order dated 03-07-2024 passed in Special Leave to Appeal (Crl.) No.
8388/24 and submitted that since the sentence imposed by the Trial Court is
for a fixed term, the plea for suspension of sentence of the appellant
deserves liberal consideration in the light of the principles laid down
therein.
The learned AAG appearing for the State, on the other hand, fairly
submits that the plea of juvenility can be raised at any stage and suggested
that the matter may be remanded to the Trial Court for deciding the plea of
juvenility of the appellant in accordance with law. He, however, opposed
the prayer for suspension of sentence of the appellant and submitted that
the factual background in the decisions relied upon by the appellant do not
apply to the present case as none of the aforesaid decisions were rendered
in relation to sexual offence falling under the purview of POCSO Act. He
further submits that just because the plea of juvenility is raised, it cannot be
held at this stage that the appellant was a minor at the time of occurrence of
the incident for consideration of prayer for suspension of sentence.
The proposition of law laid down in the decisions relied upon by the
appellant lay down that the appellate court should consider the plea for
suspension of sentence liberally. However, the consideration of the plea for
suspension of sentence has to be on the basis of the facts and circumstances
of each and every case. The decisions relied upon by the appellant were
not rendered in connection with occurrence of any sexual offence involving
the POCSO Act. The order passed by the Apex Court in Special Leave to
Appeal (Crl.) No. 8388/24 was on consideration of the fact the petitioner
therein was seventy years of age and was ailing and virtually blind. In the
present case, the situation is not the same. The appellant, at this juncture,
stands as a convict who has been sentenced to undergo imprisonment for
commission of a heinous offence under Section 4 of the POCSO Act. The
survivor of the offence was only about 9 (nine) years old at the time of the
commission of the crime. The appellant during the entire course of the
trial did not raise any plea of juvenility before the Trial Court. At the time
of hearing of sentence also the appellant did not raise any such plea. Just
because the plea of juvenility has been taken before this Court, it cannot be
presumed that the appellant was a minor at the time of the incident. Since
the appellant is convicted, the presumption of innocence also cannot be
attached to him at this stage. Hence, the prayer for suspension of sentence
has no merit and is rejected.
Insofar as, the issue of juvenility of the appellant is concerned, at the
suggestion of the State, the matter is remanded to the Trial Court for
consideration of the issue. Considering the fact that the appellant is in
custody and deserves a speedy disposal of his appeal against conviction and
sentence, the Trial Court is directed to make an endeavour to decide the
issue within 3 (three) months from the receipt of the copy of this order.
Let the lower court record be sent back to the Trial Court to facilitate
the decision-making on the plea of juvenility of the appellant. The learned
Trial Court shall proceed to decide the issue in accordance with law and
pass necessary order on the decision taken within the period mentioned
above. The lower court record shall again be transmitted back to this Court
by the Trial Court after a decision on the issue of juvenility is taken in the
matter.
Let further consideration of this appeal be kept in abeyance till a
decision on the issue of juvenility is taken by the Trial Court in terms of
this order.
Judge
Meghalaya
12.08.2024
"Biswarup PS"
