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2006 DIGILAW 134 (GAU)

Lal Biakkimi v. State of Mizoram

2006-02-03

B.K.SHARMA

body2006
1. This appeal is directed against the judgment of conviction and sentence passed by the learned Additional District Magistrate (J), Lunglei District, Lunglei in Lunglei PS Case No. 157/97 registered under section 376(1)7323, IPC. By the impugned judgment of conviction and sentence, the accused convict has been convicted under section 376(1), IPC sentencing him to undergo RI for 5 years with fine of Rs. 500 in default RI for 1 month. The accused convict has further been convicted under section 323, IPC with the sentence of SI for 3 months. The charge under section 27 of the Arms Act has been held to be not proved. 2. The criminal proceeding against the accused convict was set on motion pursuant to the FIR lodged by the alleged victim woman on 15.9.1997 stating that on 12.9.1997 around 3.30 PM the accused convict committed rape on her twice at a place called Chithar area at gunpoint. After investigation, etc., charge sheet was submitted under section 376(1)7323, IPC and section 27 of the Arms Act. The prosecution examined 4 witnesses including the alleged victim woman. The accused convict was also examined under section 313, Cr.P.C and in his statement he denied the commission of ttie offence by him. 3. Learned Additional District Magistrate (J), on the basis of the materials and evidences on record passed the impugned judgment of conviction sentencing the accused convict to undergo the aforesaid sentence. Hence, this appeal filed by the accused convict urging various grounds. Mr. G. Raju, learned counsel appearing for the accused convict took me through the evidences on record and the grounds urged in the appeal. He also submitted that even if the incident is stated to be true, the victim woman was a willing party and, thus, there was no ingredients of section 376, IPC. Referring to the date of conclusion of hearing of the case with the submissions of written argument on 19.9.2001 and 26.11.2001 and the date of delivery of the judgment on 14.7.2005, i.e., nearly after 4 years of conclusion of hearing, Mr. G. Raju, learned counsel for the accused convict submitted that such inordinate delay in delivering the judgment without any reasonable cause was fatal to the prosecution case and that there ought to have been fresh hearing of the matter. 4. Ms. Dinari, learned PP Mizoram, on the other hand supported the conviction of the accused. G. Raju, learned counsel for the accused convict submitted that such inordinate delay in delivering the judgment without any reasonable cause was fatal to the prosecution case and that there ought to have been fresh hearing of the matter. 4. Ms. Dinari, learned PP Mizoram, on the other hand supported the conviction of the accused. Placing reliance on the decisions of the Apex Court as reported in (2004) 1 SCO 429 ; 1996 Cr.LJ; (1986) 2 SCO 384 ; (1995) 5 SCC 518 and (2004) 1 SCO 215, she submitted that some amount of delay in lodging the FIR was not fatal to the prosecution case and that the conviction of the accused on the basis of the sole testimony of the victim woman is liable to be sustained. 5. The PW1, i.e., the alleged victim woman in her deposition narrated the incident as reflected in the FIR but added that, apart from the gun, the accused convict had also a Dao and a knife with him. She also stated that she was hit on her head and left arm pit by the accused convict with his gun. She categorically stated that she did not shout for help since there was none to help her. Although the incident allegedly occurred on 12.9.1997 she reported the matter to her husband on 13.9.1997 and thereafter the FIR was lodged on 15.9.1997. The delay in lodging the FIR was stated to be the distance to the Police Station. 6. In her cross-examination she stated that the FIR was written by the Sub-inspector of the Police Station and she put her thumb impression. She denied the suggestion that the accused convict did not threat her with gun, dao and knife and that he did not commit rape on her. She also denied the suggestion that due to her personal enmity which he accused convict, she falsely lodged the FIR. 7. PW 2 is the husband of the victim woman. He in his deposition stated as to how he and his wife alongwith some others were in the Jhum Hut in connection with Jhum cultivation on 12.9.1997. He was allegedly reported by his wife on the following day, i.e., 13.9.1997 that she was subjected to rape by the accused convict at gunpoint after hitting her by the gun in her sholder and forehead. He was allegedly reported by his wife on the following day, i.e., 13.9.1997 that she was subjected to rape by the accused convict at gunpoint after hitting her by the gun in her sholder and forehead. In his cross-examination, he stated that he did not notice any unusual thing between the wife and the accused. Be it stated, here that it is on evidence that the accused convict was also engaged in the Jhum cultivation and used to stay at the Jhum hut and the alleged incident took place nearby to the Jhum hut and cultivation while the alleged victim woman was returning from there to her house. 8. PW5 is the Medical Officer, who examined the victim woman and the accused convict. In his cross-examination, he clearly stated that no injury was detected on the body of the victim woman. He categorically stated that no injury was detected on the forehead of the victim woman and that no injury was found on the private parts of the accused convict. 9. PW 4 is the Inquiry Officer (IO) who conducted the investigation. He proved the documents exhibited. On the question put by the court as to why none of the labourers working in the field could be cited as witness, the 10 replied that since the labourers were from Myanmar, they could not be located. This statement of the IO runs counter to the statement of the victim woman, when she stated that she did not shout for any help as there was none to help her. It is pertinent to mention here that the woman was allegedly raped twice by the accused on her way to home. 10. On perusal of the injury report, it appears that there was no head injury, which is contrary to the statement of the victim woman in which she stated that she was knocked in her forehead by the accused with his gun. 11. On conclusion of the trial, the learned PP appearing for the State submitted his written argument on 19.9.2001 followed by the written argument submitted on behalf of the accused on 26.9.2001. Strangely enough the judgment was delivered nearly three years thereafter on 19.7.2005. I have consulted with the records of the trial court it was recorded in the order dated 26.9.2001 about the submission of written arguments by the defence counsel. Strangely enough the judgment was delivered nearly three years thereafter on 19.7.2005. I have consulted with the records of the trial court it was recorded in the order dated 26.9.2001 about the submission of written arguments by the defence counsel. Although the matter was fixed on 28.1.2002 but nothing is discernible from the order sheet as to what transpired on that day. It was only on 1.7.2005 fresh notice was issued to the accused fixing the matter on 19.7.2005, on which date the impugned Judgment was delivered. Thus, the way in which, the trial court narrated the evidence on record even to the extent of behavioural approach of the victim woman and her husband, cannot be appreciated inasmuch as the records of the case was in cold storage for long three years. 12. The prosecution did not site any independent witness although as per the evidence of the IO, there were independent witnesses and if that be so the statement of the victim woman that she did not shout for help since there were none to help her cannot be believed. She was allegedly raped twice by the accused convict on her way to home within a span of half an hour. Suspicion necessarily arises to the veracity of the story of the alleged victim woman inasmuch as she of her own statement did not shout for any help although was allegedly raped twice. It is on evidence that at the time of commission of the offence, she was a woman of 40 years with robust health. 13. In the aforesaid circumstances, it is unsafe to rely solely upon the uncorroborated testimony of the prosecutrix when her version was inconsistent with the theory of no consent on her part. The medical report also did not point out any resistance by her. In such circumstances, it cannot be said to be not a case of the victim woman being a consenting party. The accused was also charged under section 27 of the Arms Act, but the prosecution failed to establish the charge. The seized gun was also not produced and examined by the court. Another significant point to be noted is that immediately after the incident, the victim woman had intercourse twice with her husband and it was only thereafter the FIR was lodged. This fact also raises a doubt about the story narrated by the prosecutrix. The seized gun was also not produced and examined by the court. Another significant point to be noted is that immediately after the incident, the victim woman had intercourse twice with her husband and it was only thereafter the FIR was lodged. This fact also raises a doubt about the story narrated by the prosecutrix. In the normal circumstances a rape victim would remain out of her ways and her behavioural reflections would be noticeable for quite sometime, but in the instant case as per the deposition made by her husband she did not notice any change on her and she behaved normally in presence of the accused convict. 14. Coupled with the above, no head injury was detected, Which goes against her statement that she was hit by the accused convict with his gun in her forehead. Contrary to the stand in the FIR, she also exaggerated the alleged incident in her deposition by stating that the accused convict apart from the gun also carried a dao and a knife. The injury report has ruled out the possibility of inflicting injury to the victim woman even by the gun. It is in this context, the learned counsel for the accused convict submitted that in all possibility the victim woman was forced to lodge the FIR when the rumour was spread that there was an incident involving her with the accused convict on the previous day. In the normal circumstances, the woman instead of proceeding alongwith the accused convict after she was raped for the first time, would have proceeded/ran towards the Jhum hut in the Jhum cultivation field to inform her husband about the incident. But instead, she accompanied the accused convict and going home took her bath and changed clothes as a normal woman. She reported the incident to her husband only on the following day. 15. The learned trial court, did not consider the above aspects of the matter and the defence raised by the accused convict. There is also no circumstantial evidence corroborating the testimony of the prosecutrix. The learned trial court ought not to have placed reliance on the extra-judicial confession and the statement of the accused convict given in a drunken condition. Considering all these aspects of the matter, it is not a case of establishing the guilt of the accused convict beyond any reasonable doubt. The learned trial court ought not to have placed reliance on the extra-judicial confession and the statement of the accused convict given in a drunken condition. Considering all these aspects of the matter, it is not a case of establishing the guilt of the accused convict beyond any reasonable doubt. Rather the possibility of the alleged victim woman being a consenting party cannot be ruled out. 16.1 have gone through the decisions on which the learned PP, Mizoram placed reliance. The decisions are on the argument that the delay in lodging FIR is not always fatal and that conviction can be sustained on the testimony of the prosecutrix. When there is no quarrel with the propositions of law laid down by the Apex Court, however, each case will have to be judged and decided on its own facts and merit. The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it (see Lord Halsbury in Quin v. Leather, 1901 AC 495). 17. In view of the above facts and circumstances, I am of the considered opinion that it is not a case of establishing the guilt of the accused convict beyond any shadow of doubt and consequently he deserves benefit of doubt. Accordingly this appeal stands allowed by setting aside the impugned judgment and order dated 19.7.2005 passed by the learned Additional District Magistrate (J), Lunglei in Lunglei PS Case No. 157/97 under section 376(1)7323, IPC. 18. The accused convict shall be released and set at liberty forthwith, if not wanted in connection with any other case. Let the case records be send down to the trial court alongwith the copy of this judgment and order. 19. Appeal stands allowed.