Megh HC | To contend that re-trial helped prosecution fill up gaps and lacuna is otiose theory where no such plea agitated during the re-trial

Meghalaya High Court: A Bench of Mohammad Yaqoob Mir, CJ, and H.S. Thangkhiew, J. dismissed an appeal filed against the trial court decision whereby the appellant was convicted for the offence punishable under Section 376 (punishment for rape) IPC.

The appellant was accused of committing rape upon the child-victim. Pertinent to note that he was acquitted by the trial court of the charge of rape levelled against him, in the first instance. Thereafter, the State appealed against his acquittal which was allowed by the High Court and the matter was remanded back for re-trial. After the conclusion of the re-trial, the appellant was convicted under Section 376 and sentenced accordingly. He challenged the decision of the trial court by filing the present appeal.

Senior Advocate S.P. Mahanta assisted by A. Thungwa, Advocate appeared for the appellant. Per contra, S. Sen Gupta, Additional Public Prosecutor represented the State. One of the many contentions raised by the appellant was that his case was prejudiced at the re-trial.

The High Court in reference to the aforesaid contention noted that it has no force as the High Court Judgment which ordered the re-trial was not challenged. It was also found that the appellant and his counsel actively participated in the proceedings at the re-trial and at no stage it was agitated that any rights of the appellant were infringed. The Court said: “It was nowhere mentioned that any of the witnesses during examination or cross-examination has made any improvement or has made any substantial deviation giving rise to any prejudice. Now, after the accused is convicted and sentenced, to contend that by re-trial gaps and lacunas have been filled up is an otiose theory only to be rejected.” On such and other incidental reasoning, the Court dismissed the appeal while upholding the trial court’s decision. [Small Phawa v. State of Meghalaya, Crl. A. No. 5 of 2016, dated 02-04-2019]

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