Long struggle to convict rapist coal baron Small Phawa

Verdict was announced on the 27th Sept 2016, in the Court of the Sessions Judge Smt B Giri, at Jowai, on the case of rape of a minor girl from Jowai, West Jaintia Hills District, Meghalaya, whereby the alleged accused Small Phawa a coal baron, was convicted and he required to undergo a 10 year rigorous imprisonment, a fine of five thousand and the victim was asked to be given a compensation of rupees one lac out of the Meghalaya Victims Compensation Scheme.

Small Phawa at the press conference
Small Phawa at the press conference
The mother of the victim was in the court room and not understanding the verdict delivered in English, was listening and still confused whether her daughter would get justice or not, being let down by the Adhoc Judge, Fast Track Court, Jaintia Hills District, Jowai, earlier, that acquitted him. Suddenly on seeing the judge order the Police to take the alleged accused Small Phawa (33) into custody she realized that justice has been delivered for her daughter and her family and she broke down into tears in the court room.
Finally, after about 4 years and 10 months ,of a fight against money power, which bought freedom for the rapist, the family of the victim girl got to see the justice delivered in their favour as the case was a rape of their 14 and a half year old daughter who was a student. They had to face many hardships, had to take loans, to fight an acquittal for rape, which was delivered by the Adhoc Judge, Fast Track Court, Jaintia Hills District, Jowai, Shri O P Lyttan in early 2015.
Right from day one of the FIR, the alleged accused was favored first by the Police, then by the medical doctor who examined the victim girl but never wrote down the history of the case as is usually done in such cases where the doctor asks the victim what happened and he / she writes it down for records. From the beginning fearing the money power, seeing him not arrested, they were helpless and even though they called for a counsel to assist them, the Court of the First Class Magistrate and the Court of the Adhoc Judge, Fast Track Court, Jaintia Hills District, Jowai, did not allow the Counsel to speak as the Law is such that the Prosecution appointed by the State was the only one who can speak and question. This hampers a person seeking for justice when the Prosecution does not corporate with the victim.

During the trial stage in the Court of the Adhoc Judge, Fast Track Court, Jaintia Hills District, Jowai, the grandfather of the victim and the mother saw the frequent visits of the mother of the alleged accused who used to have tea with the Judge. The Adhoc Judge, Fast Track Court, Jaintia Hills District, Jowai , even went to the extent of making observations in his judgment that ‘generally in a rape case there must be marks on both sides of the thigh …’ and that ‘these marks are unseen in the medical report’.

Even the then prosecution took things lightly and if the Counsel, appointed by the family of the victim, had not also monitored the case; it would have been made very weak. This is the irony when Govt automatically takes up the prosecution of any criminal case which is regarded as a crime against the society and law does not allow the interference of any other legal counsel even if appointed by the family of the victim. This is the lapse that has to be addressed as this gives room for foul play as the prosecution can be bought and at most times they do not even discuss the case with the family of the victim or the victim for that matter. After taking evidence put forth by the IO, (Grandfather and grandmother were not put as witnesses) the verdict was delivered in favor of the alleged accused and he was given acquittal on the 26th February 2015 when the judgment was pronounced.
The family with deep sadness still vowed to fight on. The mother then wrote to the Law Secretary, Govt of Meghalaya on the 9.3.2015, to appeal the acquittal. Since there was no answer from the law secretary the mother then wrote to the Member Secretary Meghalaya State Legal Services Authority, Shillong on 6.5.2015, and his immediate action resulted in the Government to direct the Government Pleader High Court to appeal the acquittal.
Then the High Court was moved against the acquittal, but the appeal was filed on behalf of the Woman Police Investigating Officer of Jowai and delay was condoned as sought and then on 12.08.2015 leave to prefer an appeal under section 378(3) was allowed by the Hon’ble Meghalaya High Court.
Even in the High Court it was noticed that the Govt Counsel did not even try to interact with the mother of the victim and only when she approached the Counsel did little of the case was shared. Certain documents were not put on record even in High Court and I remember I had to tell the victim and the mother if they dared stand before the Chief Justice so he takes note of their presence and they told me yes they could and when the victim and the mother stood before the Chief Justice in the High Court and when he asked who they were and asked the Govt Lawyer that they should be asked to sit down, as they were not the petitioners in this case,  the Govt Lawyer had to tell it was the mother and the victim. Then the letter to the Law Secretary was shown to the Chief Justice who read and went through it.
That made the difference and the Chief Justice made certain queries such as the where about of the clothes, to which the Govt Pleader said the IO told them that she had returned the clothes and the Chief Justice asked where was the return Memo to which there was no reply.
After case was heard, the judgment of the Fast Track Judge, Jowai, was set aside and the Hon’ble Mr Justice Dinesh Maheshwari, Chief Justice, Hon’ble Meghalaya High Court pronounced the Judgment in open Court on the 28.4.2016 stating;
‘The appeal is allowed and while setting aside the impugned judgment and order dated 26.2.2015, FTC Case No 447 of 2012 {GR Case No 177 of 2011} is restored for retrial. The operative portion of the order reads as under:-
With the observations foregoing this appeal is allowed; the impugned judgment and order dated 26.02.2015 as passed in FTC Case No 447 of 2012 {GR Case No 177 of 2011} by the Adhoc Judge, Fast Track Court, Jaintia Hills District, Jowai, is reversed and set aside; the order dated 30.05.2013 as passed in FTC Case No 447 of 2012 with is also set aside; and FTC Case No. 447 of 2012 with the application filed by the prosecution under section 311 of the Cr P. C is restored by consideration. The learned trial Court shall reconsider the said application and pass appropriate order thereupon and shall proceed with the matter thereafter. The learned trial Court shall also re- examine the Investigating Officer and may put her relevant question having a bearing on the present case, of course with liberty of cross examination to the party entitled thereto. The learned trial court shall be expected to deal with the matter expeditiously and to deliver the final the judgment without much delay, preferably within four months of the first date of appearance of the parties’.
The judgment delivered by the Hon’ble High Court, gave a ray of Hope to the family of the Victim and her family and the case was reopened and re trial started in the Court of Sessions Judge at Jowai.
The Retrial was done with 11 Public Witnesses and 5 Defence Witnesses and evidence was taken and the grandmother and the grandfather who were initially not called as witnesses by the IO (Investigating Officer) were also called in the re-trial as the grandmother was also one of the first to see the condition of the girl when she was dropped off by the alleged accused after the rape, as the victim girl was staying with her grandparents in Jowai.
Even the Doctor was re-examined and when asked by the Court in the re- trail, if he had recorded or written down the history of the victim girl on the case, he replied that he did not. This is a great lapse on the part of the Doctor who even tried to establish in detail the bruise which could be self inflicted or a trauma while all along he had failed to take down the history of the case.
When asked, even by his counsel, if he medically examined the accused, he said he could not remember if he had. But strange he could remember every detail to explain the bruise sustained by the victim in her upper thigh, stating that it could be a self inflicted bruise or due to trauma.
The IO was also examined and when she was asked about the clothes her answer was that she had returned the clothes. She was asked about the return Memo but due to her lapses it transpired that she did not prepare a return Memo. She also did not seize the car where the crime took place giving the accused a chance to be able to wriggle his way out and escape punishment for a heinous crime. It is informed to us that the IO knew the family of the accused and also the accused.
The witness for the defense were also examined and one of them also displayed a letter by NGOs who had supported the rapist and had gone to the media with him for a Press Conference where he has admitted saying that he had sexual intercourse with the victim, with her consent and this witness had stated that she was sitting next to the accused in the Press conference. She was Secretary of the Mynso Woomen Welfare Organization(MWWO) and she along with other Presidents of the HNPFJ, CSWO (I) headed by Irene Hujon,  and KJLU had submitted a letter to the ADC Jowai requesting him to grant Anticipatory bail to the accused person to which he obliged, ignoring the age of the victim girl being a minor.
It may be mentioned that with regard to this, the Hon’ble Sessions Judge also remarked that ‘it is surprising that the NGOs have come forward in this case to help the accused person while in majority of instances, they espoused the cause of the victim..’
After having heard all submissions, the Sessions Court heard all evidence and judiciously applied her mind and provided justice to the victim. The Prosecution too along with the Counsel appointed by the victim managed to do a great job to secure conviction for the allege rapist.
The Hon’ble court also noted that in the argument of the prosecution it is noticed that Defense Witness 2 a member of an NGO as a witness, has completely destroyed the case of the Defense as in her cross examination, stated that she went with the accused to the Press Club, where the accused stated that he has had sex with the victim with her consent.
The victim was born in a Hospital and date shows she was very much a minor and this is also corroborated by a Dr who states in her deposition that the victim is more than 14.3 years but less than 15.8 years, which proves beyond reasonable doubt that the girl was a minor at the time of the incident.
According to the Hon’ble Sessions Judge in her judgment, ‘the fact remains that the girl has not attained the age of majority and comes within the definition of child or minor which is also mentioned under section 375 and 376 of the Indian Penal Code’…  The Defense had adduced Evidence of 5 witnesses …but none of the witnesses have given any categorical statement that there was no rape or that the victim girl is an adult at the time of the incident.’
Further in the judgment it is stated that ‘to bring the Charge under 376 IPC, the evidence of the Victim is vital and in this case the victim has been examined.’
The Hon’ble judge also mentioned that ‘the IO of the Case WPSI/ I Nongrum has not been meticulous in her investigation’ …but the Hon’ble judge mentioned that ‘with regard to defective investigation Hon’ble Supreme Court has held in the case of Dhanaj Singh alias Shera and other Vs State of Punjab (2004) 3 SCC 654 as follows;
“5. in case of defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect..’
Further the judgment states, ‘the prosecutrix victim was cross examined and in cross examination her testimony with regard to the conduct of the accused in calling her pulling her inside the car and driving away to a secluded place remains unshaken, so also the offence of rape committed by the accused. The detail statement of the victim with regard to the rape by the accused person inside the vehicle was not even challenged in cross examination thus statement of the victim remains unrebutted.’
Furthermore in the judgment, ‘the DWs and also the accused person in this case have gone to even to established the occurrence as alleged by the Prosecutrix by holding a Press Conference and admitting that there was a consent for sexual intercourse. Accused has again admitted this fact in his statement U/s 313 CrPC when the question was put to him as follows:
“Q.5. Pw 1 further stated that in your press statement to “U Rupang” (Local Daily) you have stated that you had sexual intercourse with the consent of the victim. What do you have to say?”
Ans:- Yes I have made a Press statement that the girl went willingly with me.”
Finally the last para of the judgment read ‘the evidence of the prosecutrix in this case is found to be trustworthy and reliable and in view of all discussion made herein before, and from the unshaken evidence of the prosecutrix the accused is found to have committed the offence of Rape upon the prosecutrix  who is a minor at that point of time. And accused is thus accordingly convicted under section 376 of the Indian Penal Code.
When the verdict was delivered and after the shock which brought tears to the eyes of the mother, the jubilant  family thanks the High Court Chief Justice,Shri Dinesh Maheshwari, Smti B Giri, the Learned Sessions Judge, Jowai,  the Prosecution in the retrial, Smt Y Shylla, her Counsel Smt Poonam Yadav, the Government,and all those who helped including NGOs, her relatives and friends and not to forget the media who have helped to highlight this high profile case of rape by a moneyed perpetrator.
It may be mentioned that, had the mother of the victim not moved the Member Secretary Meghalaya State Legal Services Authority, Shillong, to appeal the acquittal, Govt would not have appealed the acquittal, and had the Victim and her mother not got up in the High Court and went to the front row where they were noticed by the Chief Justice who took note of the Letter from the Mother to the Law Secretary, the Court may not have known of much of the facts which were not put forth by the Government Pleader of the High Court.
This very well shows the need and urgency that Government amend the laws to allow the victims of such heinous crimes to be able to select a counsel of their choice at Govt expense, as Rape is a crime against the society.  Lapses on the part of the Doctor not writing the history of the girl also requires henceforth that a copy of the medical report and a copy of the history written down by the doctor be immediately given also to the victim. IOs who fail to initiate a proper investigation, but who intentionally fail in order to try to help the accused, should be hauled up and punished with half the sentence given to the accused. There is also a need to transfer Police every time and not give them chance to be in a place for more than 2-3 years and those who are from the same areas of such accused should not even be given the investigations of the cases involving  that person as partiality will definitely be there.


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Agnes Kharshiing Written by:

Agnes Kharshiing is a leading human rights activist from Meghalaya. She is a leader of CSWO (Civil Society Women's Organisation)

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