Research › Search › Judgment

Gauhati High Court · body

2010 DIGILAW 587 (GAU)

Lalhmingchhuanga v. State of Mizoram

2010-08-13

H.BARUAH

body2010
JUDGMENT H. Baruah, J. 1. This instant appeal is directed against the judgment and order of conviction dated 12.4.2010 passed by Additional District and Sessions Judge, Aizawl in Criminal Trial No. 677 of 2002 whereby and whereunder Appellant is convicted and sentenced to suffer rigorous imprisonment for three years and fine of Rs.500 in default 15 days S.I. under the charge under Section 376(1), IPC. 2. The brief facts involved in this appeal may be projected as under: The victim (PW-1) along with Lalnuntludnga (PW-2) on 9.4.2002 had been to Serchhip village after completion of the work thereat. Victim was awaiting for a vehicle to go to Chhiahtlang at a tea stall owned and possessed by her friend Matlani located at Serchhip Venglai. While the victim" was awaiting in the evening hours the Appellant and two other passengers came to the stall to buy cigarette/pan and during conversation victim's friend Matlani informed that her friend (the victim) was to proceed to Chhiahtlang. Knowing that the victim would go to Chhiahtlang, the Appellant proposed that the victim could go along with them. Accordingly, the victim, the Appellant and the two others boarded in a taxi and proceeded towards Chhiahtlant. When they reached Agri Complex Junction popularly known as Kikawn, the Appellant dropped the two other passengers informing them that he had something to tell someone at the Agri Complex and would come back soon. The victim also tried to get down from the taxi but she was prevented by the Appellant and took her in the taxi towards the Agri Quarter complex and on the way the Appellant forcefully committed rape on her and came back to the place wherefrom the victim was picked up. The victim narrated the incident to her friend Matlani. In the next morning she went to Chhiahtlang and met Lalnuntluanga (PW-2) and reported the incident. Thereafter, the victim went to Serchhip Police Station and lodged information in writing Ext. P/1. The victim was produced before medical officer and she was medically examined. Police also seized her underwear. On filing of the first information report, Ext. P-1 police registered a case being Serchhip Police Station Case No. 24 of 2002 dated 10.4.2002 under Section 376, IPC. Investigation commenced, during investigation police visited the place of occurrence and prepared a sketch map and also examined the victim and other witnesses and recorded their statement. Police also seized her underwear. On filing of the first information report, Ext. P-1 police registered a case being Serchhip Police Station Case No. 24 of 2002 dated 10.4.2002 under Section 376, IPC. Investigation commenced, during investigation police visited the place of occurrence and prepared a sketch map and also examined the victim and other witnesses and recorded their statement. During investigation police also seized the broken hood glass of the taxi bearing registration No. MA-01-A/9680. Appellant was arrested and remanded to judicial custody. After completion of the investigation, the investigating officer laid a charge sheet against the Appellant under Section 376, IPC. The Appellant was put on trial in the court of Addl. District Judge, Aizawl. After hearing the prosecution and defence, having found prima-facie case under Section 376(1), IPC against the Appellant a charge under the section was framed and explained to him. Appellant pleaded not guilty and claimed trial. 3. Prosecution put as many as six witnesses in the witness box to bring home the charge under Section 376 IPC against the Appellant. Defence also examined one witness in support of the defence case. Appellant was examined under Section 313 Code of Criminal Procedure. The learned trial court thereafter on the basis of the facts and circumstances of the case, evidence on record recorded the impugned judgment and convicted the Appellant under Section 376(1), IPC and awarded sentence as indicated above. 4. I have heard Mr. Zochhuana, learned Counsel for the Appellant as well as Mrs. Dinary T. Azyu, learned Assistant Public Prosecutor for the State Respondent. 5. The primary grounds taken in this appeal are that the trial court committed error and illegality in awarding conviction and sentence on the basis of the evidence which can never be branded as truthful and acceptable. The doctors who deposed before the court are also not cited witnesses and, therefore, their evidence cannot be considered as against the Appellant. The Doctor who has been cited as a witness to the prosecution case has been withheld by the prosecution without giving any plausible reason for such withheldment, therefore, such withheldment infers an adverse inference against the prosecution. Prosecution also withheld some of the material witnesses like Matlani, the friend of the victim together with other material witnesses whose names appear in the charge sheet. Prosecution also withheld some of the material witnesses like Matlani, the friend of the victim together with other material witnesses whose names appear in the charge sheet. In the ground No. V, it has been contended that the victim was a consenting party which is evident from the facts and circumstances of the case at the time of de-boarding of the 2 (two) other co-passengers from the taxi at Agri complex junction. She without raising any hue and cry, alarm went with the Appellant towards the Agri quarter complex that too at 10.30 pm. Evidence is wanting that she also raised hue and cry while proceeding towards Agri quarter complex with the Appellant. Evidence is also wanting that she did ever try to get down from the taxi while proceeding. Evidence is also wanting regarding raising of hue and cry at the time of commission of the alleged rape. The factum of breaking of the back view mirror of the taxi being contrary also failed to infer that she actually put resistance in the commission of the alleged offence. The Appellant putting all these facts together contended that the victim was a consenting party and there was no forceful sexual intercourse. It is also contended in the grounds that the victim herself is not sure whether the Appellant or any other person did commit rape on her. She failed to assert herself that it was the Appellant and the Appellant alone who did commit rape on her on the relevant night. 6. The Appellant, therefore, under the above grounds contended that the impugned judgment and order of conviction and sentence was passed by the learned trial court on conjecture and surmises and not passed on legal evidence. Appellant therefore, prayed this Court to set aside the impugned judgment and sentence as awarded by the trial court and to acquit him from the charge. 7. The issue before us, therefore, is whether the conviction and sentence as awarded by the trial court legally in view of the facts and circumstances of the case and evidence on record both oral and documentary is sustainable in law, On this issue Mr. Zochhuana, learned Counsel for the Appellant very strenuously argued that the evidence of the victim (PW-1) cannot form a basis for conviction since her evidence appears to be untruthful and overwhelmed with falsity. It was argued by Mr. Zochhuana, learned Counsel for the Appellant very strenuously argued that the evidence of the victim (PW-1) cannot form a basis for conviction since her evidence appears to be untruthful and overwhelmed with falsity. It was argued by Mr. Zochhuana that the victim was the consenting party which is evidenced from the facts and circumstances of the case and the evidence of the victim herself. The victim proceeded with the accused and two other passengers in a taxi driven by the accused-Appellant towards Chhiahtlang and when they reached agri complex junction the co-passengers who were along with them were made to de-board by the Appellant informing them that he had a business at the Agri quarter complex and requested both of them to wait at the point. Though there is a evidence that the victim also tried to get down from the taxi along with two co-passengers she was not allowed by the Appellant. In the facts and circumstances it would had been natural on the part of the victim to raise hue and cry while the Appellant tried to take her forcefully to an unknown destination. She, however, did not resort to such step rather went with the Appellant towards Agri complex. It was also submitted by Mr. Zochhuana, the learned Counsel for the Appellant that on the way before reaching the place of occurrence the victim also did not raise any hue and cry in order to save her from the clutch of the Appellant nor she did raise any hue and cry while the Appellant indulged in sexual intercourse with her forcefully. These circumstances according to Mr. Zochhuana, the learned Counsel for the Appellant give rise an interference that she was a consenting party which opportuned the Appellant to have sexual intercourse with her. In the context of breaking of back view mirror it was argued by Mr. Zochhuana that evidence is conflicting in regard to breaking of back view mirror. According to the Investigating Officer he seized broken hood glass vide seizure memo. But evidence of victim speaks otherwise. She stated that the side back view mirror was broken as a result of kicking by her while the Appellant forced to nave sexual intercourse with her. Mr. Zochhuana that evidence is conflicting in regard to breaking of back view mirror. According to the Investigating Officer he seized broken hood glass vide seizure memo. But evidence of victim speaks otherwise. She stated that the side back view mirror was broken as a result of kicking by her while the Appellant forced to nave sexual intercourse with her. Mr. Zochhuana in view of the evidence of the victim claimed impossibility of the breaking of the side back view mirror when there is evidence that rape was committed inside the taxi. There is no evidence forthcoming as argued by Mr. Zochhuana that at the time of commission of rape the glasses of the doors of the taxi were not closed, in other words remained open. Rape is an offence which is stealthily committed. Nobody wants to commit rape on a girl before the public eye, therefore, the natural instinct of a rapist is to commit such act beyond the sight of the people or in a dosed place so that none can have a view of the act. The evidence appearing in the face of the record in the context of breaking of the side back view mirror would also indicate that there was no resistance put by the victim to the Appellant to have sexual intercourse. Mr. Zochhuana, therefore, on these points contended that the victim was a consenting party. 8. Charge sheet discloses a name of a doctor at Serial No. 8 in the witness column. His name is Dr. T. Lalzoliana. Witness No. 8, T. Lalzoliana has been withheld by the prosecution from being examined. Lower court records contain a report in the context of medical examination of the victim PW-1 on 10th of April 2002 at 12.10 p.m., which indicates the age of the victim above 17 years but below 20 years of age. The doctors who deposed before the trial court are numbered as PW-11 and PW-12 per judgment. Both the doctors are not charge sheeted witnesses. Both appear to be examined on the sanction of the trial court vide order dated 19.10.2006 at the instance of the prosecution. But nowhere in the LC Rs an application to that effect is found to have existed, perhaps the trial court allowed the prosecution to examine those medical officers on oral prayer which ought not to have been done by the trial court. But nowhere in the LC Rs an application to that effect is found to have existed, perhaps the trial court allowed the prosecution to examine those medical officers on oral prayer which ought not to have been done by the trial court. Section 311 of the Code of Criminal Procedure provides power to summon material fitness, or examine person present, therefore, by virtue of this provision a court at any stage of inquiry, trial or other proceeding summon any persons as a witness or examine any person in attendance though not summoned as a witness or re-call and re-examine any person already examined, if his/her evidence appears to the court to be essential for the just decision of the case. Therefore, the court at its own instance for the just decision of the case or at the instance of any party to the proceeding examine any person as a witness or any person in attendance or re-call or re-examine any person already examined. Section311 of the Code is, therefore, an enabling provision and also discretionary and unlimited in nature for the purpose of achieving the object. But there is no indication in the order dated 19.10.2006 that the examination of the medical officers is thought appropriate for the just decision of the case and, therefore, allowed to issue summon to them to examine as witness. While adhering to such a provision the court should be very much vigilant why such a step has to be adopted and such requirement is required to be reflected in the order passed for the purpose. The order dated 19.10.2006 appears to be a necked one. There is no indication that whether such allowance is made at the instance of the prosecution or at its own instance. But, however, the prosecution was allowed to examine both the medical officers to arrive at just decision of the case. The trial court also did not find it necessary to call Dr. T. Lalzuliana as a witness to the prosecution who examined the victim medically on 10.4.2002 at 12.10 p.m. This witness also appears to be a material witness for the purpose of just decision of the case. But the prosecution did not feel it necessary to call him as witness though his name appears in the charge sheet. 9. Mr. T. Lalzuliana as a witness to the prosecution who examined the victim medically on 10.4.2002 at 12.10 p.m. This witness also appears to be a material witness for the purpose of just decision of the case. But the prosecution did not feel it necessary to call him as witness though his name appears in the charge sheet. 9. Mr. Zochhuana, learned Counsel for the Appellant taking this opportunity appearing in the face of the record in respect of examination of the doctors submitted that the medical testimony of PW-11 and PW-12 cannot be accepted since they were not cited as witness for the prosecution. The doctor who has been cited as witness has been intentionally withheld by the prosecution and, therefore, the evidence of the doctors (PW-11 and PW-12) cannot be projected as against the Appellant. Section 311 of the Code gives an ample power to call a person as witness or examine any person in attendance or to re-call and reexamine any person already examined for just decision of the case if it appears to the court that such examination of the person or the witness is essential. Therefore, the court suo motu in view of the facts and circumstances of the case and evidence on record or at the instance of the prosecution may take resort to provision of Section311 of the Code. The necessity of examination of PW-11 and PW-12 though in so many words is not reflected in the order, the court allowed the prosecution to examine both the witnesses (doctors). Therefore, nothing illegality or error had been committed by the trial court in allowing the prosecution to examine PW-11 and PW-12 as prosecution witness. From their evidence it also appears that both the witnesses were duly cross-examined by the defence, no prejudice appears to have been caused thereby to the defence. On this point this Court finds no force in the argument advanced by Mr. Zochhuana, learned Counsel for the Appellant. 10. Dr. Vanlalhruaii in the impugned judgment is numbered as PW-11 while Dr. R. Lalnunpuia numbered as PW-12. The deposition sheet of the respective doctors does not indicate the number in the judgment. The trial court indicated that altogether 6(six) witnesses have been examined to prove the charge. Therefore, apparently the numbering of medical officer as PW-11 and PW-12, is wrong and erroneous. There was no application of mine on this point. Dr. R. Lalnunpuia numbered as PW-12. The deposition sheet of the respective doctors does not indicate the number in the judgment. The trial court indicated that altogether 6(six) witnesses have been examined to prove the charge. Therefore, apparently the numbering of medical officer as PW-11 and PW-12, is wrong and erroneous. There was no application of mine on this point. Dr. Vanlalhruaii, who was examined as PW-11 per judgment deposed that on. 10.4.2002, the victim was produced by police for examination for alleged rape and accordingly he examined her. On examination he discovered sign of bruise over the right shoulder and nipple, on examination of the private part evidence of laceration in posterior, fourchette (viginal opening) which appear to be not recent for which it could not be determined whether there was recent intercourse or not. In cross-examination, he stated that the hymen was ruptured. He also admitted that he is not a gynecologist and expert in the subject. Dr. R. Lalnunpuia stated in his evidence that on 11.4.2002 accused was produced before him for examination and accordingly he examined him and submitted report. In his cross-examination he stated though he examined the entire body of the accused did not find any scratch mark or laceration. From the evidence of Dr. Vanlalhruaii it appears to this Court that hymen was found raptured and there was old laceration in the posterior fourchette for which he was unable to opined whether there was recent intercourse or not, though PW-1 claimed forceful raped on her by the Appellant on the relevant night. Evidence of Dr. Vanlalhruaii failed to support her contention though he discovered bruise over the right shoulder and nipple. Hence, then appears no consistency in between the medical testimony and the evidence of the victim. Now, the question arises whether the discovery of bruise over the right shoulder and nipple would indicate that the victim had been actually raped, when the doctor did not find any sing of recent sexual intercourse. Discovery of bruise would be insufficient to arrive at a finding that the victim was raped by the Appellant. 11. As it appears evidence of PW-1 impeded with infirmities. Therefore, whether it would be safe on the part of the court to record a conviction against the Appellant on the sole testimony of the PW-1 without corroboration more particularly from the medical officer, who was examined as PW-11. 11. As it appears evidence of PW-1 impeded with infirmities. Therefore, whether it would be safe on the part of the court to record a conviction against the Appellant on the sole testimony of the PW-1 without corroboration more particularly from the medical officer, who was examined as PW-11. Apex Court while dealing with the criminal appeal Nos. 858 and 859 of 2000 in between Dilip and Anr. v. State of M.P. (2001) 9 SCC 452 in paragraph 12 of the judgment held as under: 12. The law is well settled that the prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made the basis of conviction unless corroborated in material particulars. However, the rule about the admissibility of corroboration should be present to the mind of the Judge. In State of H.P. v. Gian Chand on a review of decisions of this Court, it was held that conviction for an offence of rape can be based. In sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc., if the same is found to be natural, trustworthy and worth being relied on. This Court relied upon the following statement of law from State of Punjab v. Gurmit Singh 2 SCC (Para 21). "If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulates. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.... 12. This Court while dealing with Siba Ram Barua's v. State of Assam 2006 (2) GLT 6141 held that in order to accept the solitary testimony of the prosecutrix, prudence is always to have corroboration from the medical evidence suggesting rape. In out case though PW-1 deposed in her evidence that there was forceful rape on her, PW-11, the doctor did not find any sign of recent sexual intercourse rather did discover old laceration and rapture on the hymen. In out case though PW-1 deposed in her evidence that there was forceful rape on her, PW-11, the doctor did not find any sign of recent sexual intercourse rather did discover old laceration and rapture on the hymen. According to Mr. Zochhuana, learned Counsel for the Appellant the discovery of old laceration in vagina and rapture in the hymen do not suggest that a forceful rape was committed on PW-1. Further the underwear which was seized by the police was also not examined to show presence of spermatozoa which could have given an indication that there was sex at least in between the PW-1 and the Appellant. This Court in paragraph-11 of the judgment in the case (supra) refused to accept the solitary testimony of the prosecutrix in absence of corroboration from the medical testimony. 13. Accused was examined under Section 313, Code of Criminal Procedure. He in his examination admitted the sexual intercourse with the victim on the night with a rider that sexual intercourse was done with the consent of the victim. But whether such statement of the Appellant made during the course of examination under Section 313, Code of Criminal Procedure can form the basis of conviction without corroboration. We have already indicated herein before that the evidence of PW-1, the victim appears no trustworthy inasmuch as she did not raise any alarm or hue and cry to attract the attention of the people of the locality that the Appellant tried to take her to an unknown destiny with an ulterior motive. Even she did not raise any alarm or hue and cry when the other two co-passengers de-boarded the taxi or no the way or at the place of occurrence. Therefore, a doubt creeps in, in the mind of the court that whether she had been raped by the Appellant or she submitted to the will of the Appellant at her own. The victim in her cross-examination stated that she passed class X school examination from Chhiahtlang in 2002. She was born on 2nd July, 1985 at Thentlang. In that calculation, in the year 2002 she was more than 17 years. In regard to proof of age there is no evidence on record although the charge sheeted witness Dr. T. Lalzuliana indicates her age above 17 and below 20. She was born on 2nd July, 1985 at Thentlang. In that calculation, in the year 2002 she was more than 17 years. In regard to proof of age there is no evidence on record although the charge sheeted witness Dr. T. Lalzuliana indicates her age above 17 and below 20. But prosecution withheld this witness from being examined and, therefore, the court withheld this witness from being examined and, therefore, the court cannot take the assistance of the report submitted by Dr. T. Lalzuliana, whose name appears at Sl. No. 8 of the witness list. But from the evidence of PW-3, the victim we can arrive at a decision that in the year 2002 she was more than 17 years of ace. The age, coupled with the evidence of victim in the context of non-raising of hue and cry, alarm at the time of her taking by the Appellant would reflect that she had the consent to go with the Appellant and submit to the desire of the Appellant. Further, it has been brought on to the record through evidence that after the incident both came together to the place but she did not divulge immediately to anybody that she had been raped by the Appellant although there is evidence that she divulged the incident to Matlani, her friend and PW-5 subsequently. We have also noticed that the police during investigation seized the underwear of the victim. There was no attempt on the part of the investigating officer to send the same for examination or opinion to thee forensic science laboratory to ascertain whether there was presence of spermatozoa or not. This appears to be a lapse on the part of the investigating officer which indicates that the investigation was conducted in a perfunctory manner. No sincerity was adopted by the investigating officer to conduct the investigation so that the offender could be brought to book for offence allegedly committed. In the same manner the trial court also conducted the trial in a perfunctory manner. It did not resort to the procedure in a proper manner rather conducted in a haphazard manner. The lapses on the part of the trial court are also indicated herein before, more particularly in regard to examination of the doctors and the numbering of the witnesses examined by the prosecution. It did not resort to the procedure in a proper manner rather conducted in a haphazard manner. The lapses on the part of the trial court are also indicated herein before, more particularly in regard to examination of the doctors and the numbering of the witnesses examined by the prosecution. Such act is not warranted on the part of the that court since it creates problem to the Appellant authority in writing a judgment against the judgment and order passed by the trial court. A trial court must be consistent and vigilant while conducting a trial. The matter should not be haphazardly put raising confusion in the mind of the superior authority. In this appeal it appears that the trial court failed to maintain consistency in proceeding the case against the Appellant, which is not desirable at all. 14. Defence examined one witness. His evidence discloses that victim requested the Appellant to take her in the taxi but after some time both case back and dropped the victim at the place wherefrom they had started and she took leave from the Appellant saying goodbye. Mr. Zochhuana in view of the evidence of the D.W. maintain to state that both the Appellant and the victim left the place in the taxi and comeback after something and such leaving was at the sweet will of the victim herself. Therefore, the alleged rape on PW-1, the victim can never be branded as rape within the meaning of Section 375 of Indian Penal Code. Such sexual intercourse was committed by the Appellant with full consent of the victim. 15. After meticulous consideration of the facts and circumstances of the case, the evidence on record both oral and documentary and the grounds taken by the Appellant, I am of the considered view that the prosecution case cannot stand in a base not actuated by doubt. It failed to prove the charge beyond all reasonable doubt and therefore, the court is constrained to hold a different view than the view adopted by the trial court. This Court finds sufficient ground to interfere with the findings of the learned trial court. 16. In the result the appeal is allowed. Judgment and order of conviction and sentence is set aside and quashed. Accused is acquitted on the benefit of doubt. Send back the case records. Appeal allowed.