Md. Sanayai v. State of Manipur

in FIR No. 28(9)20202 Women P.S.-Imphal West. [3] The facts of the present case in a nutshell is that one Md. Ajijur Rahman lodged a written complaint dated 02-09-2020 to the Officer-in- Charge, Women Police Station, Imphal West District, by stating inter alia that his niece (i.e., the victim girl), aged about 14 years went out from her home and did not return back and that they searched for the girl that night but they could not find her and that they thought that she might have eloped. However, on the next day, the complainant got information that the victim was lying unconscious at Irong Yendao Palli Mapal with multiple bruise and seemed to have been sexually assaulted by unknown persons. [4] On the basis of the said written report, the Officer-in-Charge, Women Police Station, Imphal West registered a case being FIR No. 28(9)2020 Women Police Station, Imphal West District under Section 6 of the POCSO Act, Section 307/325 IPC and started investigation but the victim girl expired on 03-09-2020 at about 02:05 p.m. and as such, the Police aided Section 302/120-B/34/107 IPC in the said FIR. Subsequently, the Accused No. 4, Md. Feiz @ Mohammad was arrested by the Police on BAIL APPLN. NO. 33 OF 2021 CONTD…/- [2] 04-09-2020 in connection with the said FIR and the said accused person has been in custody till today. [5] Mr. S. Jibon, learned counsel for the petitioner submitted that the son of the petitioner, who is the Accused No. 4, is innocent of the charges levelled against him and that the said Accused No. 4 is not at all involved in commission of the crime. In this regard, the learned counsel draw the attention of this court to the statements of PWs namely, Dr. Yumnam Arunkumar, Assistant Medical Superintendent of RIMS, Dr. Md. Kamalluddin Vahrott, Smt. Lourembam (N) Khangembam (O) Selvia Devi and Thamangjam Binod recorded under Section 161 CrPC in connection with the said FIR. The said PWs are the Doctors and Nurses who were taking care of the victim girl while she was in the ICU for her treatment. [6] It has been submitted by the learned counsel for the petitioner that in the statements given by the said PWs, it can clearly be seen that the said persons recorded the dying declaration of the victim girl. In the dying declaration, the name of the Accused No. 4 was never mentioned and that the victim girl clearly stated that the offence was committed by the Accused No. 1 alone. The learned counsel further submitted that in view of the dying declaration given by the said victim girl, it can be clearly seen that the Accused No. 4 is innocent and he is not involved at all in commission of the crime. It has also been submitted by the learned counsel that only in the statement given by the elder sister of the victim girl, the name of the Accused No. 4 was mentioned as one of the accused. However, the statement given by the elder sister cannot be relied on inasmuch as it has never been stated that at which point of time the dying declaration was given by the victim girl. In view of the above, the learned counsel vehemently submitted that the Accused No. 4 is entitled to be enlarged on bail as he is not at all involved in commission of the crime. [7] The next ground raised by the counsel for the petitioner is that the Accused No. 4 was arrested on 04-09-2020 in connection with the said FIR and he has been in custody since then till today for the last about one and half year. It has also been submitted that the charge-sheet was submitted by the I.O. in 01-12-2020, however, no charge has been framed BAIL APPLN. NO. 33 OF 2021 CONTD…/- [3] till today and the trial has not yet commenced even after such a long time and the completion of the trial is going to take a long time. The learned counsel further submitted that two co-accused, who are the Accused Nos. 2 and 3 have been released on bail by this court by a judgment and order dated 09-08-2021 passed in Bail Appln. No. 5 of 2021 and Bail Appln. No. 6 of 2021 on the ground that there is delay in the trial and that the Accused No. 4 is entitled to get the same relief as are given to those co-accused. It has also been submitted by the learned counsel for the petitioner that in the charge-sheet submitted by the I.O., it is clearly mentioned that supplementary charge-sheet will be filed after receiving expert report and accordingly, the prosecution has not submitted the complete charge-sheet. In view of the above, it has been submitted that as the submission of charge-sheet is not yet complete, the Accused No. 4 is entitled to be released on default bail as provided under section 167 CrPC. [8] Mr. Y. Ashang, learned P.P. submitted that during the course of investigation, a good number of PWs was examined in connection with the case and on examination of the elder sister of the victim girl, it has been stated that the victim girl disclosed to her that the Accused No. 4 was also involved in the commission of the crime. It has also been stated by the learned P.P. that in the statement of the Accused No. 4 recorded under Section 161 CrPC, he denied knowing the victim girl and he tried to mislead the investigation team by giving inconsistent statement and that the Accused No. 4 hide himself in some other locality to escape from the arrest by the Police and did not co-operate with the investigation of the case and that he could not produce any material to prove that he was somewhere else when the crime was committed. The learned P.P. further submitted that according to the statement of the Accused No. 4, the Mobile number currently used by the main accused person, Md. Maja Khan is the same as his previous Mobile number, however, he denied giving the said SIM card to any other person. In view of such statement given by the Accused No. 4, there is reasonable ground for involvement of the Accused No. 4 in committing the crime against the victim girl. The learned P.P. lastly submitted that if the Accused BAIL APPLN. NO. 33 OF 2021 CONTD…/- [4] No. 4 is released on bail, there is possibility that he might hamper and tamper the crucial evidence of the investigation of the case and may also influence the other witnesses and that there is chance of absconding him from the trial of the case. In view of the above, the learned P.P. submitted that the Accused No. 4 is not entitled to be enlarged on bail and the present application deserves to be dismissed. [9] With regard to the first contention raised by the learned counsel for the petitioner, this court is of the considered view that it will not be in the interest of justice to decide the innocence of the accused persons solely on the basis of the statement recorded under Section 161 of the CrPC and accordingly this court refrains itself from deciding this issue so as to avoid causing any prejudice to any of the parties during the trial of the case. With regard to the contention of non-completion of submission of charge-sheet, this court is of the considered view that submission of supplementary charge-sheet is permissible under the CrPC and just because the prosecution has stated that supplementary charge-sheet will be submitted later on does not amount to non-submission of charge-sheet as contemplated under Section 167 CrPC and accordingly, this court is not inclined to grant bail to Accused No. 4 on this ground also. However, this court agrees with the contention raised by the learned counsel for the petitioner that Accused No. 4 has been in custody for the last about one and half year and that the trial is yet to be started and that the conclusion of the trial will take a long time. This court also perused the judgment and order dated 09-08-2021 passed by this court in Bail Appln. No. 5 of 2021 and Bail Appln. No. 6 of 2021 relied on by the counsel for the petitioner and after careful perusal of the said judgment and order, it is prima facie clear that the two co-accused i.e., Accused Nos. 2 and 3 had been released by this court on the ground that there is delay in the trial. On perusal of the said judgment and order, this court respectfully agrees with the reasons and the findings given by this court in the said judgment and order and this court is also of the view that the accused No. 4 is entitled to be released on BAIL APPLN. NO. 33 OF 2021 CONTD…/- [5] bail in terms of the principle laid down by this court in the said judgment and order dated 09-08-2021. In the result, the present bail application is allowed. The respondent is directed to release the accused No. 4, viz., Md. Feiz @ Mohammad, son of Md. Sanayai of Mayang Imphal, Bengoon Mamang Lourak in connection with FIR No. 28(9) 2020, Women P.S., Imphal West subject to his furnishing a personal bond in the sum of Rs. 50,000/- (rupees fifty thousand) with two sureties in the like and amount to the satisfaction of the Trial Court and subject to the following conditions:- (i) The accused, Md. Feiz @ Mohammad shall not leave the place of his residences without permission of the trial court and shall ordinarily reside at a place of residence and the complete address of such place shall be furnished to the trial court at the time of release. (ii) The accused, Md. Feiz @ Mohammad shall appear before the trial court weekly twice i.e., Monday and Friday at 10:30 a.m. until further orders, (iii) If the accused, Md. Feiz @ Mohammad have passport, he shall also surrender the same to the Trial Court. (iv) The accused shall not contact nor visit nor threaten nor offer any inducement to the family of the victim or the complainant or any of the prosecution witnesses, (v) The accused shall not tamper with evidence nor otherwise indulge in any act or omission that would prejudice the proceedings in the matter. (vi) It is clarified that if the accused, Md. Feiz @ Mohammad misuses the liberty or violate any of the conditions imposed upon him, the prosecution shall be at liberty to move this court for cancellation of the bail. BAIL APPLN. NO. 33 OF 2021 CONTD…/- [6] (vii) Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of the present bail petition. With the above directions, the present bail application is disposed of. Devananda JUDGE BAIL APPLN. NO. 33 OF 2021 CONTD…/-