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2012 DIGILAW 39 (GAU)

Lalfamkima son of Ramngaia v. State of Aizawl

2012-01-10

P.K.MUSAHARY

body2012
JUDGMENT Hon'ble Mr. Justice P.K. Musahary 1. This appal has been filed from jail by the convict/appellant against the judgment and order dated 29.10.10 rendered by the learned Additional District & Sessions Judge-1, Aizawl in Criminal Trial No. 2335/2009 convicting the appellant U/S 376(2)(f)/341 IPC and sentencing him to undergo R.I for 10 years with fine of Rs. 500/- in default, another 15 days S.I. 2. The prosecution story in brief is that on 24.10.09 at about 1.10 P.M a written FIR was received from one Thankhuma son of Ramngaia of Dilkhan to the effect that his daughter LZ, aged about 11 had been raped by one Lalfamkima aged about 32 years, from the same place since May 2009 onwards on as many as 6 occasions, the last being on 12.10.09 between 12 noon and 1 P.M. Furthermore, the said Lalfamkima, on 23.10.09 at 3 P.M. tried to call her inside his house with intention to rape her again but she refused to comply. Her school teacher having observed her behavior became suspicious and on being asked she revealed the whole incident. The Headmaster of the school on consultation with the other school teachers and father of the victim girl, lodged written FIR in the name of her father. Accordingly, a case being Saitual P.S. Case No. 4/09 was registered U/S 341/376(2)(f) IPC. During investigation, the victim was produced before the Magistrate for recording her statements and she was also produced before the Medical Officer for medical test at CHC, Saitual. After collecting the medical report and on completion of the investigation, the I.O. concerned submitted charge sheet against the convict/appellant. The learned trial court, on perusal of the materials on record framed charge under the aforesaid sections of law which was read over and explained to the accused but he pleaded not guilty and demanded trial. 3. The prosecution in order to establish the case examined as many as 7 witnesses including the victim girl and the Medical Officer. The Defence adduced no evidence. On conclusion of the trial and upon consideration of the evidence on record and upon hearing the learned counsel for the parties, the learned trial court passed the impugned judgment and order convicting and sentencing the appellant as stated earlier. 4. I have heard Mr. Zochhuana, learned counsel appearing as Amicus Curiae for the appellant and Mr. Lalsawirema, learned Addl. P.P. Govt. 4. I have heard Mr. Zochhuana, learned counsel appearing as Amicus Curiae for the appellant and Mr. Lalsawirema, learned Addl. P.P. Govt. of Mizoram for the State-Respondent. 5. The victim girl was examined as P.W-2. She identified the convict/appellant in the dock in the court and stated that she was raped by him in his residence more than 5 times. She does not remember the date of the first incident. However, she stated that convict/appellant called her to his house while she was coming from school. She thought that he had some work with her or he wanted to tell something to her and so she went to his house. She had vividly narrated how she was ravished by the convict/appellant as follows :- He lay me down on their bed and rubbed his penis around and on top on my private part. It was so sudden and out of my expectation I could not understand anything and I also did not tell anything to my parent when I reached home he warned me not to tell any one or may have dire consequence. My private part was paining but I did not dare to tell about the incident to my parent. The accused after this used to call me regularly during the day time while I go back to school after lunch break and when I came back after school. The accused used to give me fruits like guava, mango from his garden. On last day of the incident the accused was having sexual intercourse with me by putting his penis inside my private part. I shouted (rak) two persons namely U Tana and U Diki came asking for coriander and they stood for sometime and left the house. After that my teacher and my father came to know about the incident that Lalfamkima had sexual intercourse with me. My teacher in the school asked me about the incident. I told about the incident to our teacher Sri Mahminga and Madam Mazovi and they further informed about the incident to my father as I do not have mother anymore she had already died in the year 2009 November. The incident happened after the death of my mother. My father also asked me about the incident and I also told my father everything about the incident. The incident happened after the death of my mother. My father also asked me about the incident and I also told my father everything about the incident. I was born on 1st March 1998 and now I am studying in Class VI. I was medically examined by the doctor. 6. The Medical Officer was examined as P.W-3. He deposed that on police requisition he. examined the victim girl aged about 11 years on 24.10.09 at 10.30 A.M. He found her hymen ruptured. He prepared a medical report, Ext. P/3. He proved the said medical report and his signature on the same. In cross-examination he stated that the hymen can be ruptured due to reason other than the sexual intercourse. He also stated that he examined the accused Lalfamkima on police requisition and he found that there was insertion of small pieces of glass in his penis at 7 places. To that effect he also prepared a medical report Ext. 3(1) to P 3/1. In his opinion the age of the victim was about 11 years. 7. The I.O. was examined as P.W-7. He deposed that he received the written FIR and took up the investigation himself. He visited the place of occurrence and arrested the accused from Dilkhan village. He also sent the victim to CHC at Saitual for medical test. Chargesheet, Ext. P/4 was submitted along with birth certificate of the victim girl Ext. P/6, which was issued by the Govt. of Mizoram Economics and Statistics Department. 8. Head-Master of the school who scribed the FIR and the father of the victim girl as informant were examined as PW-4 and 1 respectively. They have proved the fact of lodging the FIR after the incident was revealed by the victim to them. The evidence of PW 1 and 4 was corroborated by PW-5, another teacher of the school. Head-Master of the school, PW-4, in his deposition stated that the accused married one of his cousins. He stated that the accused was not having a good character which fact is know to all the villagers. He often used to assault his wife and all the time he used to sit idle at home. The accused was earlier convicted by the Magistrate as he attempted to rape on his wife (i.e. wife of P.W-4) while she was fast asleep at home. He often used to assault his wife and all the time he used to sit idle at home. The accused was earlier convicted by the Magistrate as he attempted to rape on his wife (i.e. wife of P.W-4) while she was fast asleep at home. A co-villager named Laltanpuia was examined as PW-6 who stated that he saw the victim girl in her school uniform with shabby and untidy hair in an evening around 3/3.30 p.m. in the house of the accused/appellant. 9. After the closure of prosecution witnesses, convict/appellant was examined U/S 313 Cr.P.C. To the first question, he replied that he had sexual relation with the victim girl about 5 times but he did not insert his penis into the vagina of the victim. He satisfied his sexual urge ejecting outside the vagina. He did not penetrate her vaginal with his penis. He admitted that he had planted small pieces of glass (7 numbers) in his penis as advised by his friends. From these statements it could be understood that the convict/appellant took the stand that he committed sexual abuse on the victim girl but committed no offence of rape as he never penetrated or inserted his penis into the vagina of the victim girl. It is also his stand that the victim girl willingly used to come to his house and she was a consenting party to such sexual acts on several occasions and thereby he committed no offence of rape. If one carefully goes through the evidence of the victim girl he would find that it was never suggested to the victim girl that she voluntarily used to come to the house of the convict/appellant for enjoying sex with him. 10. I have perused the Ext P-VI, birth certificate, wherein the date of birth of the victim girl has been recorded as 1st of March, 1998. During trial, the defence raised no objection to the admissibility of this certificate and as such it can be accepted as a valid piece of legal evidence. The age of the victim girl on the date of incident should be calculated on the basis of the date recorded in the said certificate, Ext. P/VI. If it is calculated so, the age of the victim girl was only 10 1/2 years at the time of alleged rape. The age of the victim girl on the date of incident should be calculated on the basis of the date recorded in the said certificate, Ext. P/VI. If it is calculated so, the age of the victim girl was only 10 1/2 years at the time of alleged rape. It is established that the victim was a minor at the time of alleged occurrence and she was not at the age of consent and as such she cannot be a consenting party. 11. How far the statement of the appellant that he did not penetrate/insert his penis in the vagina of the victim girl could be accepted as true and believable one can turn again to the evidence of the victim girl which has been quoted earlier. She clearly stated that the accused had sexual intercourse with her by putting his penis inside her private part and she shouted. Such statement of the victim girl cannot be disbelieved. Her evidence is supported by the evidence of the Medical Officer P.W-3 and his report Ext 3. The rupture was found on the hymen of the victim girl which cannot be attributed to other reason on the face of the evidence of the victim as well as the medical evidence. On the face of such clear evidence the court can take a view that the hymen of the victim girl got ruptured not due to other reason but for penetration of the penis by the convict appellant. There is no valid reason for not accepting the evidence of the victim girl which is corroborated by the Medical evidence. A question may arise as to why she did not make any complaint to her father or other persons if she was sexually ravished by the accused person. The answer is not far to seek inasmuch as the victim girl in her evidence stated that she was warned with dire consequences if she discloses the same to any body. Being a minor girl it is quite natural that she was frightened to divulge the incident. Moreover, from the medical evidence it is proved that the accused planted as many as 7 small pieces of glass on his penis which is nothing but a reflection of his perverted sexuality with past record of conviction for attempting to commit rape on the wife of P.W-4. 12. Moreover, from the medical evidence it is proved that the accused planted as many as 7 small pieces of glass on his penis which is nothing but a reflection of his perverted sexuality with past record of conviction for attempting to commit rape on the wife of P.W-4. 12. The evidence recorded by the trial court are sufficient to prove the charge against the appellant and in fact, in my considered opinion, the prosecution has been able to prove the case against the convict/appellant beyond all reasonable doubt and rightly convicted and sentenced him. There is no ground for interference with the impugned judgment and order awarding conviction and sentence against the convict/appellant. The impugned judgment and order is hereby upheld. The appeal stands dismissed. 13. The learned Amicus Curiae made a prayer that the sentence of 10 years R.I. be reduced to minimum. As stated earlier the convict/appellant indulged in perverted sexual act on the victim girl who is a minor in age. As against it, the appellant is aged about 33 years and a married person. Compared to his age, the victim is of the age of her daughter, if had any. Had he been a young boy of early twenties and not having criminal record, the sentence could have been reduced as mandated by the Apex Court in Phul Singh Vs. State of Haryana, AIR 1980 SC 249 . The benefit of said judgment cannot be given to the present appellant. Besides, as per the principle laid down by the Apex Court in State of MP Vs. Basadi, (2009) 12 SCC 318 , court has to record " adequate and special " reasons in the judgment, not being fanciful ones, for imposing a sentence less than the prescribed minimum. In the instant case, the appellant having found to be convicted earlier for an attempt to commit rape, I find no good and special reason for reducing the sentence of 10 years R.I. Prayer deserves no consideration and it stands rejected. 14. In recognition of the legal assistance rendered by the learned Amicus Curiae, the State is directed to pay him Rs. 5,000/- as legal fee. 15. Send down the L.C.Rs forthwith.