Pyrshangbor Myrthong vs State of Meghalaya & Anr

W. Diengdoh, J

The Petitioner, Shri Pyrshangbor Myrthong having been arrested in connection with Sohra P.S. Case No 20(6) 2020 u/s 376(2) (f) IPC, has preferred this instant application under Section 439 Cr.P.C. with a prayer for grant of bail.

The brief facts of the case as could be seen from the records produced before this Court is that on 03.06.2020 around 1:00 AM, the accused who is the biological son of the Complainant/victim raped her while she was in deep sleep in the kitchen of her house at Tiewlieh Mawmyrsiang village. She came to know about it only when her other children came to wake her up and was told that one of her granddaughter saw the accused lying on top of her. The Complainant/victim then filed the FIR before the Officer-Incharge, Sohra P.S. which was duly received and registered as Sohra P.S. Case No. 20(06) 2020 u/s 376 IPC. The accused/Petitioner was then arrested on 03.06.2020 itself and is still in judicial custody till date.

Heard Ms. S. Nongsiej, learned counsel for the Petitioner who has submitted that this is a case where the prosecution has alleged that he has committed rape on his own mother, based on the allegation made in the FIR as well as the statements of the alleged eye-witnesses which is contradictory.

Ms. Nongsiej has also submitted that the case has been charge sheeted and is at the stage of consideration of charge before the Court of the Sessions Judge, Shillong, however in the meantime, the accused/Petitioner has been in custody for the last 19(nineteen) months.

Ms. Nongsiej has further submitted that the complainant has herself filed a bail application before the Learned Magistrate at Sohra wherein in one of the paragraphs she has categorically stated that the accused/Petitioner has not committed any offence whatsoever. The Complainant/victim in her statement u/s 164 Cr. P.C. has also stated that she woke up and found her son on top of her but since she was unconscious and in a state of shock, she did not know what he did to her. There was nothing mentioned about the alleged rape.

Again, Ms. Nongsiej has led this Court to the statement of the alleged eye-witnesses whose statements have been recorded by the I/O during investigation and has submitted that on perusal of the said statements, it can be seen that they are contradictory and will not support the case of the prosecution. Even the medical report did not reveal any evidence of sexual assault submits Ms. Nongsiej.

The case of Shri Benkelbin Nongrum v. State of Meghalaya: BA. No.8 of 2021 was referred to by Ms. Nongsiej particularly the order dated 20.09.2021 at paragraph 12 & 13 to buttress her contention as far as the applicability of the principle of bail is concerned.

Finally, the learned counsel for the petitioner has submitted that the accused/Petitioner being a young man of 21(twenty-one) years and being the sole bread earner of the family, he may be enlarged on bail with any conditions to be imposed by this Court.

Also heard Mr. S. Sengupta, learned Addl. Sr. P.P. who has submitted that from the records including the case diary produced before this Court, what could be seen is that a prima facie case has been made out against the accused/Petitioner, inasmuch as, eye witnesses have been cited who have witnessed the offence being committed by the accused and as such, at this stage it may not be proper for this Court to allow the accused/Petitioner to be enlarged on bail.

Having considered the submission of the parties and on perusal of the records which was duly produced before this Court, what can be understood here is that an incident occurred in which the accused/Petitioner was said to have been caught in the act of rape on his own mother as he was allegedly seen by some eye-witnesses who are his own nieces lying on top of his mother. It may also be mentioned that the place of occurrence was the kitchen of their house and the time of the incident was about 1:00 AM in the morning. The Complainant/victim has initially lodged the FIR alleging that her own son has committed rape on her, but in her statement u/s 164 Cr.P.C., she could not definitely say that she was raped by the accused/Petitioner. The fact that she has retracted her statement in the form of an averment in a bail application filed by her on behalf of the accused/Petitioner also speak volumes about her pursuing the matter in earnest.

The statement of the alleged eye-witnesses will also be tested during their examination in Court in due course and as such, this Court will not venture to make any observation on the same at this juncture. However, it is pertinent to mention that it has been observed that the medical examination of the Complainant/ victim did not reveal any evidence of sexual assault (though the same is subject to examination in Court).

The fact that the investigation in the case has been completed and charge sheet filed, there is no possibility of the accused/ Petitioner tampering with the same at this stage.

When it comes to consideration of bail applications, the well settled principle of bail jurisprudence is that the courts should usually resort to "Bail and not Jail", of course, under the facts and circumstances of each case. However, this Court should also not be found wanting to apply this principle under the facts and circumstances of this instant case as enumerated above. In the case of Sanjay Chandra v. Central Bureau of Investigation: (2012) 1 SCC 40, referred to by Ms. Nongsiej, which case found mentioned in the case of Shri Benkelbin Nongrum(supra), the Hon'ble Supreme Court at paragraphs 21 and 22 has observed as follows:

"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances."

In the light of the above, this Court is inclined to allow this application and hereby directs that the accused/Petitioner be released on bail, if he is not wanted in any other case, provided he comply with the following directions:

i) That he shall produce a personal bond of ₹ 20,000/- (Rupees twenty thousand) only along with two solvent sureties of like amount to the satisfaction of the Trial Court;

ii) That he shall not abscond or threaten the witnesses including the victim;

iii) That he shall appear in court as and when required;

iv) That he shall not leave the jurisdiction of India without due permission of the court.

With the above, this matter is disposed of. No cost.

Registry is directed to return the Lower Court case records.