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2011 DIGILAW 708 (GAU)

M. C. Lalengliana v. State of Mizoram

2011-08-24

H.BARUAH

body2011
JUDGMENT H. Baruah, J. 1. Heard Mr. P.C. Prusty, learned Amicus Curiae as well as Mrs. Dinari T. Azyu, learned Addl. P.P., Mizoram for the Respondent State. 2. The Appellant herein being aggrieved and dissatisfied with the judgment and order of conviction and sentence dated 28.1.2011 passed in Crl. Trial No. 1506 of 2006 by the Addl. District and Sessions Judge No. -I, Aizawl has preferred this appeal from fail challenging its legality and correctness. Appellant was convicted under Section 376(2)(f) read with Section 511 IPC and sentenced him to suffer rigorous imprisonment for 5 years and to pay fine of Rs. 500/- in default 1 month S.I. The case as it appears from the records is as follows: 3. On 23.11.2006 at about 4 p.m. one Cicilia Lalthlamuani, daughter of the first informant David Lalrinsanga (PW 1) aged about 8 years while was playing near the spring at Khatla F-Line, a stranger asked her to locate some papers which he had lost and was successful in taking the girl with him. In the evening Smt Zonunsiami, a tenant of Rodinga took aforesaid Cicilia Lalthlamuani to his residence. The first informant when asked, said Cicilia, he came to know that the stranger was the person who had taken her and committed rape. David Lalrinsanga accordingly on the same day i.e. on 23.11.2006 lodged and FIR with the Aizawl Police Station which had been registered as Aizawl P/S Case No. 418 of 2006. Investigation commenced and during investigation the victim Cicilia Lalthlamuani was produced before a medical officer for her medical examination. After completion of the investigation, a charge sheet under Section 173 of the Code of Criminal Procedure was laid. The offence being triable by the court of Session, the case was made over to the Addl. District and Sessions Judge No.-I, Aizawl for trial of the Appellant. 4. The learned trial court having found the prima facie materials to presume that the Appellant did attempt to commit rape on the victim on 23.11.2006 framed the charge as indicated above against the Appellant. Appellant, however, pleaded no guilty to the charge when read over and explained. 5. In order to bring home the charge as framed against the Appellant, prosecution examined as many as 18 witnesses while defence examined 9 in support of its case. Appellant, however, pleaded no guilty to the charge when read over and explained. 5. In order to bring home the charge as framed against the Appellant, prosecution examined as many as 18 witnesses while defence examined 9 in support of its case. Appellant while under examination under Section 313 of the Code of Criminal Procedure pleaded his innocence. The learned trial judge after meticulous perusal of the facts and circumstances of the case and evidence on record, both oral and documentary, recorded a finding of guilt against the Appellant under Section 376(2)(f)/511 IPC and accordingly sentenced as above. 6. The learned Amicus Curiae Mr. P.C. Prusty at the very outset of his argument brings to the notice of this Court that the judgment and order of conviction and sentence cannot sustain in law since the trial court wrongly framed the charge as against the Appellant and further the victim the most important witness for the prosecution had been withheld form being examined although her evidence recorded in a different case had been taken into consideration while recording conviction against the Appellant. Referring to page 5 of the paper book which contains the form of the charge, Mr. P.C. Prusty, the learned Amicus Curiae submits that the contents of the charge do not contain anything as against the Appellant. Unless the charge is framed specifically against the Appellant, the conviction basing on the charge so framed and also the evidence on record cannot sustain in law. As it appears from page 5 of the paper book we find that the learned trial judge framed the charge against the Appellant as follows: that on 23.11.2006 a written FIR was submitted by David Lalrinsanga of Khatla stating that his daughter Cicilia Lalthlamuani aged 8 years was forcibly taken away by one person who had rape her and charged under Section 376(2)(f)/511/34 IPC. The charge as framed is not projected against the Appellant that it was he who committed rape on Cicilia Lalthlamuani. Section 211 of the Code of Criminal Procedure deals with the subject of the contents of the charge while Section 212 deals with particulars of time, place and person. The charge as framed is not projected against the Appellant that it was he who committed rape on Cicilia Lalthlamuani. Section 211 of the Code of Criminal Procedure deals with the subject of the contents of the charge while Section 212 deals with particulars of time, place and person. Section 212 of the Code of Criminal Procedure specifically states that the charge was shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. The primary object of framing charge is to give notice of the matter to the person who is charged about the offence. As we have from page 5 of the paper book, the charge so framed as against the Appellant cannot indicate that by framing as such the accused had the notice of the offence that he allegedly had committed rape on 23.11.2006. The learned trial judge did not frame the charge as per mandate of Section212 of the Code of Criminal Procedure and thus committed error and illegality. 7. As we have from the records the victim, Cicilia Lalthlamuani, is the daughter of David Lalrinsanga (PW 1). From the perusal of the original records of the Crl. Tr. No. 1506 of 2006 this Court finds no order therein that the victim was examined as one of the prosecution witnesses but the learned trial judge while writing the judgment impugned herein took the evidence of the Cicilia Lalthlamuani in addition to other testimonies available on record. In the impugned judgment at paragraph 20, evidence of Cicilia Lalthlamuani, the victim has been referred to. She has been indicated as PW 16 but as we have from the original record, Cicilia Lalthlamuani was never examined as one of the prosecution witnesses. Therefore, the conviction recorded as against the Appellant basing on her evidence and other evidence on record cannot sustain in law. It would appear to us that Cicilia Lalthlamuani was examined as PW 16 in Crl. Tr. No. 1434 of 2006. Therefore, her testimony recorded in that case cannot be legally used against the Appellant who was facing charges in Crl. Tr. No. 15061 2006 8. It would appear to us that Cicilia Lalthlamuani was examined as PW 16 in Crl. Tr. No. 1434 of 2006. Therefore, her testimony recorded in that case cannot be legally used against the Appellant who was facing charges in Crl. Tr. No. 15061 2006 8. The impugned judgment and order of conviction and sentence therefore, cannot sustain in law. This Court has not other option than to set aside and quash the same and it is accordingly done so. The matter is remanded back to the trial court for a fresh decision with the following directions: a) that the learned trial court shall frame charge against the Appellant in consonance with the provisions of Chapter XVII of the CPC; and b) that the trial court shall also examine the victim as one of the prosecution witnesses giving an opportunity to the defence to cross examine. An endeavour shall be made to dispose of the case within a period of 2 (two) months from the date of the receipt of the copy of the judgment and order and the LC Rs. 9. Appellant would be at liberty to apply for bail from jail before the trial court which would be disposed of in accordance with law. 10. For rendering valuable assistance by Mr. P.C. Prusty, the learned Amicus Curiae, his fee is quantified at Rs. 5000/- to be paid by the State.