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Gauhati High Court · body

2009 DIGILAW 308 (GAU)

Lalremruata v. State of Mizoram

2009-05-08

H.BARUAH, H.N.SARMA

body2009
JUDGMENT H. Baruah, J. 1. In challenge is the judgment and order dated 11.8.2006 passed by the Additional District Magistrate (J), Aizawl in Criminal TR No. 2640/04 arising out of Saitual PS Case No. 64/04, whereby accused/appellant was convicted under Section 376(2)(f) IPC and sentenced him to undergo rigorous imprisonment for 10 years and fine of Rs. 5000/- in default, to undergo further rigorous imprisonment for 3 months. 2. After conviction and passing of sentence as aforesaid by the learned trial Court for the purpose of confirming the conviction and sentence, the learned Addl. District Magistrate, Aizawl made a reference to the High Court complying the provisions of Rule 9 of the Regulation of the Procedure of Officers Appointed to the Administration of Justice in the Lushai Hills, 1937 and accordingly criminal reference No. 7/06 was registered. Subsequently, the accused/appellant being in jail serving out the sentence so awarded also preferred an appeal from jail which received registration as Criminal Appeal No. 4/08(J). 3. Since both the criminal appeal and the reference have arisen from a common judgment, we propose to dispose of both the reference and the appeal by this common judgment and order. 4. Mr. M.M. Ali, learned Counsel was appointed as Amicus Curiae to assist the Court since appellant was not represented by any other counsel. 5. For the purpose of deciding the merit of this appeal as well as the reference, it would be appropriate for us, at the very outset to make a survey of the facts briefly which lead to the conviction of the appellant. 6. The appellant, herein, is the father of the victim girl (PW 2) aged about 7 years at the relevant point of time. First informant (PW 1) is the mother of the victim as well as the ex- wife of the accused/appellant. On 24.12.2004, PW 1, the mother of the victim girl set the criminal law in motion by filing an FIR (Ext. P 1) with the SHO of Saitual police station alleging inter-alia that her husband, accused/appellant had committed sexual intercourse with her daughter (PW 20 on several occasions on and from 15.10.2004. Having been filed such information with the police, a case, being Saitual PS Case No. 64/04 was registered under Section 376(2)(f) IPC. Investigation commenced. P 1) with the SHO of Saitual police station alleging inter-alia that her husband, accused/appellant had committed sexual intercourse with her daughter (PW 20 on several occasions on and from 15.10.2004. Having been filed such information with the police, a case, being Saitual PS Case No. 64/04 was registered under Section 376(2)(f) IPC. Investigation commenced. During the investigation, the victim girl (PW 2) was produced before the Medical Officer (PW 6) by her mother (PW 1) for her medical examination who accordingly conducted the examination and submitted report (Ext. P II). 7. In course of the investigation the mother (PW 1) and the victim girl (PW 2) were produced for recording their statement under Section 164, Cr PC. After completion of the investigation, the Investigating Officer laid chargesheet under Section 376(2)(f) IPC for trial of the accused/appellant. 8. The learned trial Court after scrutiny of the materials submitted under Section 173 Cr PC framed charge against the accused/appellant under Section 376(2)(f) of IPC. Accused/appellant pleaded not guilty to the charge so framed and claimed to be tried. 9. During the trial, prosecution to bring home the charge, altogether examined 6 (six) witnesses including the Doctor (PW 6) and the Investigation Officer (PW 7). Defence also examined 3 (three) witnesses including the appellant in support of defence. The learned trial Court after recording the statement of the accused/appellant under Section 313, Cr PC by the judgment and order convicted the accused/appellant as above. The appellant being aggrieved with the impugned judgment and order of conviction has preferred the jail appeal challenging its legality and correctness. 10. We have heard Mr. M.M. Ali, learned Amicus Curiae and Ms. Helen Dawngliani, learned Assistant Public Prosecutor appearing for the State respondent. 11. Amongst all the prosecution witnesses, to us, evidence of PW 1, PW 2, PW 3 and PW 6 are most vital and important for the purpose of ascertaining the legality and correctness of the conviction and sentence so awarded by the learned trial Court against the accused/appellant. 12. PW 1 is the mother of the victim girl (PW 2) and ex-wife of the accused/appellant. She has categorically stated in her evidence that she came to know about the incident from her daughter (PW 2) when insisted that her father had sexual intercourse with her on several occasions at different places. Knowing the incident from her, she accordingly, lodged an FIR (Ext. She has categorically stated in her evidence that she came to know about the incident from her daughter (PW 2) when insisted that her father had sexual intercourse with her on several occasions at different places. Knowing the incident from her, she accordingly, lodged an FIR (Ext. P I) with Saitual police and had also taken her daughter, the victim girl to a Doctor, who after medical examination of the victim submitted a report (Ext. P. II). While deposing she has given a description of the places where the appellant had sex with his daughter. 13. PW 2 is the victim girl herself. She while deposed before the Court had given a narration of the incident as to how she had been raped on the day and also on different times. During her evidence she stated that her father committed rape on her on several occasions although she could not exactly recollect the number of dates. On the last occasion, she had to accompany her father to Saitual along with her two brothers. On way, her father committed rape on her by the side of the road after sending both of her brothers away to a considerable distance from the spot. It is also stated by her that brothers having found her and their father not reporting early came nearby the spot and had witnessed the sexual intercourse committed on her by their father. Thereafter, they together had been to their residence. The incident, thus later on was reported to her mother, the informant and accordingly, PW 1 filed FIR with the Saitual police. 14. PW 3 is one of the brothers who did accompany his father and sister (PW 2) on the relevant date, stated before the Court that while they were proceeding along the road towards Saitual, the appellant had taken his sister to the side of the road to a considerable distance. Finding his sister and father not approaching them for a long time he and his another brother went to the spot and found their father and the sister indulging in sex. It is also stated by PW 3 that they together returned back and PW 2 reported the incident to her mother (PW 1) who later filed the FIR with the Saitual police. 15. It is also stated by PW 3 that they together returned back and PW 2 reported the incident to her mother (PW 1) who later filed the FIR with the Saitual police. 15. These 3 (three) witnesses were duly cross examined by the defence but nothing substantial could be brought on to the surface sufficient to rebut the evidence of all the three witnesses in material particulars. The evidence so offered by PW 1, PW 2 and PW 3 remained stable without any infirmity whatsoever. 16. PW 6, the Doctor who conducted the medical examination on the person of victim (PW 2) also found that she had been sexually molested by some person. His findings are seem to be based on rupture of hymen and swelling of labia minora. 17. By cross-examining this witness, the defence too failed to rebut the evidence of PW 6 that his finding so arrived at are erroneous. Thus the evidence of PW 6, the Doctor also lends support to the evidence of PW 2 and PW 3. Since both witnesses, PW 2 in particular categorically stated that it was the accused/appellant and appellant alone who did commit rape on her. 18. The learned Amicus Curiae while arguing the case has drawn our attention to some defects apparent on the fact of the record which according to him are material for the purpose of deciding the reference and the appeal. It is submitted by him that the charge is defective since it was not framed in conformity with the provision of Section 212 of Cr PC. According to him, the Court while framing charge ought to have addressed the place of occurrence and also the time. Since both the aspects are missing from the charge itself, it is argued by him that the charge being defective, the appellant cannot be convicted. 19. We find no force in the submission made by Mr. Ali on the ground that rape was not committed on a particular date and particular time. It is apparent from the evidence on record that the commission of rape continued since long back on PW 2, the victim by the accused/appellant. 19. We find no force in the submission made by Mr. Ali on the ground that rape was not committed on a particular date and particular time. It is apparent from the evidence on record that the commission of rape continued since long back on PW 2, the victim by the accused/appellant. When there is no specific date appearing in the face of the record and in the statement recorded Under Section 161 of Cr PC, it was perhaps not possible on the part of the trial Judge to incorporate the places and the dates in the charge. The argument advanced by Mr. Ali, in our considered view, is not sustainable. 20. The second point raised by Mr. Ali is that the Investigating Officer who conducted the investigation of the case, failed to resort to Section 53, Cr PC to ascertain the commission of alleged offence. Admittedly, the offence was not committed, as we have stated hereinbefore at a particular date. The first information report was lodged with the police at a belated stage i.e., on 24.12.2004. Therefore, resorting to the provision of Section 53 of the Code for the purpose of ascertaining the commission of the alleged offence by the accused/appellant was apparently not possible on the part of the Investigating Officer by producing the accused/appellant before a Medical Officer for his medical examination. This issue raised by Mr. Ali also cannot sustain in view of the facts and evidence on record and lapse of time. 21. The third issue raised by Mr. Ali is that the sentence awarded by the learned trial Court can be reduced to a certain extent on the ground that the appellant is the sole bread earner for the members of his family. There is no evidence on record to show that accused/appellant, is at present living with PW 1, PW 2 and PW 3 and is maintaining them after commission of the offence. There is also no evidence on record that in the midst he had been maintaining his family members. In absence of such evidence, on the said count, we do not find any force in the argument advanced by Mr. Ali that the sentence awarded by the learned trial Court can be reduced to a certain extent. 22. Law provides that for commission of offence under Section 376(2)(f) IPC, the punishment can shoot upto life imprisonment. In absence of such evidence, on the said count, we do not find any force in the argument advanced by Mr. Ali that the sentence awarded by the learned trial Court can be reduced to a certain extent. 22. Law provides that for commission of offence under Section 376(2)(f) IPC, the punishment can shoot upto life imprisonment. The learned trial Court has leniently awarded the sentence to minimum imprisonment of 10 years. This being the position in the face of the record and in absence of evidence that the appellant is providing food and shelter to his family members, the sentence is not liable for reduction. We find no force in the argument of Mr. M.M. Ali, the learned amicus curiae. 23. Per contra to the submission of Mr. M.M. Ali, learned Amicus Curiae, Mrs. Helen Dawngliani, learned Asstt. Public Prosecutor for the State respondent argues that no room is available to cause an interference with the impugned judgment and order of conviction and the sentence in view of evidence of PW 1, PW 2, PW 3 and PW 6. Their evidence, according to Mrs. Helen Dawngliani appears to be truthful, reliable and acceptable. Each witness corroborates each other in material particulars leaving no room for disbelieving the same. It is also argued by her that the issues raised by the learned Amicus Curiae do not have substance in view of the facts and evidence on record. 24. Now, the question arises before us whether the evidence of PW 1, PW 2, PW 3 and PW 6 are sufficient enough to sustain the conviction and sentence so awarded by the trial Court. It is true that PW 2 and PW 3 are child witnesses aged in between 7 to 9 years. But the manner in which the learned trial judge recorded their evidence, goes to show that nothing illegality had been committed in recording their evidence by the trial judge. Some questions were put before recording their evidence by the trial Judge so as to see the maturity of their understanding and the trial Judge being satisfied with their answers so offered by them on those questions, found them matured enough to depose. No cross-examination is found to have been made in respect of minority of those witnesses contending that their evidence cannot inspire confidence in the mind of the trial Court and therefore cannot be acted upon. 25. No cross-examination is found to have been made in respect of minority of those witnesses contending that their evidence cannot inspire confidence in the mind of the trial Court and therefore cannot be acted upon. 25. The evidence of PW 1, PW 2 and PW 3, more particularly, PW 2 and PW 3 being carefully marshalled and scrutinized, we find no infirmity which can render their evidence unacceptable and unreliable. Evidence so offered by PW 1, PW 2, PW 3 and PW 6, to our humble opinion would be sufficient to record the finding of guilt of the accused/appellant in respect of the charge framed against him. 26. Though the defence tried to bring some incongruity in between the accused/appellant of PW 1 by cross examining her, we do not find any force in such cross examination in view of the allegation brought against the accused/appellant. During the scrutiny of the evidence available on record, more particularly, the evidence of PW 2 and PW 3, the material part of their evidence in respect of the alleged commission of offence is not found to have been challenged by the defence during the cross examination. This being the situation, the material part of their evidence remained uncontroverted and therefore, their evidence cannot be brushed aside. 27. In a case of rape, to warrant conviction the rapist, no number of witness is required for the purpose of corroboration. If, the trial Court finds the evidence of the prosecutrix, truthful, reliable and acceptable, Court can without any hesitation whatsoever, record a finding of the guilt. In a catena of decisions, the Apex Court held that conviction can be awarded relying on the evidence of the prosecutrix alone, if her evidence is truthful and acceptable. The Apex Court further held that even the evidence of the doctor, in view of such evidence of the prosecutrix cannot play a vital role. No corroboration is necessary from doctor's evidence. In our present case, we have seen that PW 2 and PW 3 corroborated each other. Their evidence is also found to have been corroborated by PW 6, the Doctor. In such a situation, we do not find any cogent ground to reject their evidence. Infirmity not being crept in, we accept their evidence. We find no scope to disbelieve the evidence of PW 1, PW 2, PW 3 and PW 6. 28. Their evidence is also found to have been corroborated by PW 6, the Doctor. In such a situation, we do not find any cogent ground to reject their evidence. Infirmity not being crept in, we accept their evidence. We find no scope to disbelieve the evidence of PW 1, PW 2, PW 3 and PW 6. 28. A close scrutiny and marshalling of all the evidence on record, we find that defence became unsuccessful in rebutting the evidence of prosecution witnesses. 29. From a scrupulous reading of the facts and evidence on record both oral and documentary, we are of the view that the prosecution was successful to bring home the charge against the accused/appellant under Section 376(2)(f) IPC. We find no cogent or reasonable ground to interfere with the judgment and order of conviction and the sentence awarded by the learned trial Court. 30. In the result, the reference is accepted and the appeal filed by the appellant from jail stands dismissed. Conviction and sentence of the accused/appellant are upheld. Send down the records. 31. For rendering valuable assistance to the Court by Mr. M.M. Ali, Amicus Curiae, he is entitled to fees as applicable to Public Prosecutor. State is accordingly directed to provide him with such fee.