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2013 DIGILAW 331 (GAU)

Lalrinthara v. State of Mizoram

2013-05-22

C.R.SARMA

body2013
JUDGMENT C.R. Sarma, J. 1. Heard Mr. P.C. Prusty, learned counsel appearing for the appellant. Also heard Mr. Lalsawirema, learned Addl. P.P., Mizoram. This appeal is directed against the judgment and order, dated 3.7.2012, passed by the learned Addl. Session Judge-IV, Aizawl in S.R. No. 116/2010 under section 376(2)(f) IPC. 2. By the impugned judgment and order, the learned trial judge, while convicting the appellant, under Section 376(2)(f) IPC, sentenced him to suffer rigorous imprisonment for 10 years and pay fine of Rs. 10,000/- in default to suffer simple imprisonment for 2 months. 3. Aggrieved by the said judgment and order, the convicted person as appellant has come up with this appeal, on the ground that the learned trial judge committed error by recording the conviction and sentence without sufficient evidence against the appellant. The prosecution case, in brief, as may be required for disposal of this appeal, may be stated as follows. 4. The victim girl i.e. the P.W. 2 was a student of class-VI studying in the Govt. Middle School-I, Lengpui and she was 11 years old. On a particular date, in the later part of 2007, when she was leaving her school, after the school hour, the appellant, who was her teacher raped her and thereafter threatened her asking not to disclose about the said incident. On being so threatened by the perpetrator, the victim girl, out of fear, ceased to attend the school. While she was staying in her grandfather's house, after leaving the school, the accused person again visited her in the year 2008, 2009 and in the month of January, 2010 and committed rape on her. After committing the said offence, each time, the appellant had warned her not to disclose the same to others. On being threatened by the appellant, the victim girl did not muster courage to disclose about the incident to her grandparents. But in the morning of 9.5.2010, noticing some changes in her physical structure and behavior, her grandmother (P.W. 4) asked her to disclose the matter and on being insisted upon she had told her that she was raped by the appellant and that pregnant through him. Subsequently, her pregnancy was detected and the medical officer who examined her in the month of May, 2010, opined that she carried pregnancy of 3 months. The mother of the victim girl as informant, lodged an FIR (Ext. P-1) with the police. Subsequently, her pregnancy was detected and the medical officer who examined her in the month of May, 2010, opined that she carried pregnancy of 3 months. The mother of the victim girl as informant, lodged an FIR (Ext. P-1) with the police. 5. On receipt of the FIR, police registered a case under Section 376(2)(f) IPC and launched investigation into the matter. At the close of investigation, police submitted charge sheet against the appellant under section 376(2)(f) IPC. The offence being exclusively triable by the Court of Session, the case was committed to the court of Sessions and the learned Addl. Session Judge-IV, Aizawl framed charge under Section 376(2)(f) IPC. The particulars of the charge was read over and explained to the appellant, to which he pleaded not guilty. 6. The prosecution examined 8 witnesses including the Medical Officer (P.W. 7), who examined the victim girl and the Investigating Police Officers (P.W. 6 and P.W. 8). At the close of the evidence for the prosecution, the accused was examined under Section 313 Cr.P.C. He denied the allegations, brought against him and pleaded not guilty. The accused also examined one defence witness as D.W. 1. Considering the evidence on record, the learned trial Judge convicted and sentenced the appellant, as indicated above. 7. Aggrieved by the said conviction and sentence, the convict/appellant has come up with this appeal. 8. Mr. P.C. Prusty, learned counsel appearing for the appellant, referring to the FIR as well as the evidence on record, has submitted that though the alleged incident took place sometime in the year 2007, 2008 and 2010, the delay in approaching the police or the Court, has not been properly explained and that the failure to explain such inordinate delay is fatal for the prosecution. The learned counsel for the appellant has also submitted that except the oral evidence of the victim girl (P.W. 2), there is no evidence to substantiate the charge that the appellant had committed the alleged offence of rape. The learned counsel for the appellant has also submitted that except the oral evidence of the victim girl (P.W. 2), there is no evidence to substantiate the charge that the appellant had committed the alleged offence of rape. The learned counsel for the appellant, referring to the evidence, given by the Headmaster of the school i.e., D.W. 1, has submitted that the Headmaster of the school, in which the appellant was working has a teacher, certified that the appellant was a person with good conduct and character and as such, it is not believable that the appellant would have committed rape on his student, who was a minor. 9. With the above submissions, the learned counsel, appearing for the appellant, has contended that the learned trial judge committed error by convicting and sentencing the appellant, without sufficient evidence and as such the impugned judgment and order is liable to set aside and the appellant is entitled to be acquitted. The learned counsel, for the petitioner, in support of his contention, has relied on the following decisions:-- 1) 2011 (5) GLT 788 in the case of Nayan Jyoti Das Vs. State of Assam 2) 2004(1) GLT 478 in the case of Nabin Bora Vs. State of Assam 3) 2011 (3) GLT 589 in the case of Anath Giri Vs. State of Tripura 4) AIR 2002 SC 476 in the case of Surjan & Ors. Vs. State of M.P. 10. Mr. Lalsawirema, learned Addl. P.P., Mizoram, controverting the said argument advanced by the learned counsel for the appellant, has submitted, that the prosecution could duly explain the delay in lodging the FIR and that considering the entire facts and circumstances of this case as well as the minority of the victim girl, the evidence given by the prosecutrix, leads to the reasonable conclusion that the appellant had committed the alleged offence. The learned Addl. P.P. has also submitted that the delay in lodging the FIR itself, cannot be fatal for the prosecution in all types of cases. In support of his contention, the learned Addl. P.P. has relied on the decision held in the case of Dildar Singh Vs. State of Punjab reported in AIR 2006 SC 3084 . 11. The learned Addl. P.P. has also submitted that the delay in lodging the FIR itself, cannot be fatal for the prosecution in all types of cases. In support of his contention, the learned Addl. P.P. has relied on the decision held in the case of Dildar Singh Vs. State of Punjab reported in AIR 2006 SC 3084 . 11. Having heard the learned counsel appearing for both the parties and carefully perusing the evidence or record, I find that the victim girl, who was born on 14.4.1996, was 11 years (eleven) old minor at the time of the first incident i.e. in 2007. She was a student of class-VI. The victim girl, in her evidence given as P.W. 2 clearly stated that, sometime in 2007, when she was proceeding to her home from the school, the appellant had forcibly taken her away from the road and committed rape on her. She further stated that she was threatened by the appellant with the warning that if she disclosed the matter to anybody, then she would be killed. On being so threatened, the victim girl, out of fear, left the school forever and she used to live with her grandparents. According to the victim girl, again in the year 2008, she was raped by the appellant, while she was fetching water. She further stated that in the year 2009 also once the appellant committed rape on her. She also stated that in 2010, in the month of January, on a Saturday night, while she was alone in her house, the appellant entered the house and committed rape on her. This time also, according to the victim girl, she was threatened by the appellant. However, in the month of February, 2010 her pregnancy was detected and she, on being asked by her grandmother, had disclosed that she was raped by the appellant. On being so disclosed, she was taken to the doctor for examination. The medical officer, who examined her, on 11.5.2010, opined that she was aged about 14 years and that she carried pregnancy of about 3 months. The medical officer further stated that the victim girl had missed her menstruation from the 1st January, 2010. The said medical evidence supports the evidence of P.W. 2 regarding her pregnancy. The medical officer, who examined her, on 11.5.2010, opined that she was aged about 14 years and that she carried pregnancy of about 3 months. The medical officer further stated that the victim girl had missed her menstruation from the 1st January, 2010. The said medical evidence supports the evidence of P.W. 2 regarding her pregnancy. Though the victim girl was duly cross-examined on behalf of the defence, her evidence, that she became pregnant through the appellant and that she was raped by the appellant on various dates, remained undemolished. In fact, the defence had admitted that the accused/appellant used to visit the victim. In the cross-examination of the victim, the defence suggested that the appellant was invited by the victim girl. Of course, she denied the said suggestion in the following way. It is not a fact that I often invite the accused to come with (sic) me at the time while my grandmother and grandfather were not in our home Suggestions were also put to the grandfather (P.W. 3) of the victim that the victim had love affairs with the accused. 12. The said suggestions, put by the defence, clearly indicate that the accused used to visit the victim girl. Admittedly, the victim was a minor at the relevant time. Therefore, her consent, if any, can't be treated as lawful consent. The victim, in her evidence, given as P.W. 2, clearly stated that she left the school after the incident of rape, which took place in 2007 and, on being threatened by the appellant, she did not disclose about the incident to anybody. P.W. 3, the grandfather of the victim, deposing as P.W. 3, supported the evidence of P.W. 2 regarding her pregnancy. Corroborating the evidence of P.W. 2, P.W. 3 denied the suggestion, to put to him by the defence, that the prosecutrix had fallen in love and that she had affairs with the accused. This suggestion coupled with the said suggestion put to the victim girl, fortifies the prosecution version that the appellant used to visit the said minor. The grandmother of the victim, deposing as P.W. 4, stated that, during the month of May, 2010, she could notice changes in the behavior and movement of her granddaughter i.e., the victim and on being insisted, the victim had told her that she was raped by the appellant. The grandmother of the victim, deposing as P.W. 4, stated that, during the month of May, 2010, she could notice changes in the behavior and movement of her granddaughter i.e., the victim and on being insisted, the victim had told her that she was raped by the appellant. P.W. 5, P.W. 6, P.W. 7 and P.W. 8 were the formal official witnesses. 13. Carefully scrutinizing the evidence of the P.W. 1, P.W. 2, P.W. 3 and P.W. 4 i.e. the mother of the victim girl, the victim girl, the grandfather of the victim and grandmother of the victim girl respectively, I find that there is sufficient corroboration in their evidence regarding the alleged rape. Admittedly, the victim became pregnant sometime in the early part of 2010 and on 11.5.2010 i.e., the date of her medical examination conducted by the P.W. 7, she was found to be pregnant for 3 months. Therefore, there is no difficulty in understanding that she became pregnant after the incident of 2010. This medical evidence lends sufficient corroboration in favour of the P.W. 2 that she was raped by the appellant in the month of January, 2010. Her said evidence has also been fortified by the circumstantial evidence, that she was a student of class-VI in the school where the appellant was a teacher, that she had left the school after the first incident i.e. since 2007 that she was alone in her house in the fateful Saturday of January, 2010, that she was found to be in advance stage of five months pregnancy in May, 2010 and that she delivered a baby thereafter in due course. 14. In view of the above, considering the entire evidence on record, I find no difficulty in holding that the appellant visited the victim girl in the month of January, 2010 and had sexual intercourse with her. The victim girl categorically stated that in the year 2007 and 2008 also she was raped by the appellant. She clearly stated that she was given threat by the appellant, who warned her not to disclose the incident. Therefore, due to the said threat she got so frightened that she did not disclose the matter till her pregnancy was detected. The impact of the threat was so much that the minor stopped going to her school. Had she not become pregnant, probably, she would not have disclosed the matter to anybody. Therefore, due to the said threat she got so frightened that she did not disclose the matter till her pregnancy was detected. The impact of the threat was so much that the minor stopped going to her school. Had she not become pregnant, probably, she would not have disclosed the matter to anybody. It is quite believable that threat, more particularly, the threat of death given by the appellant to the minor was sufficient to close her mouth. There is nothing on record to show that the victim had any ill feeling or grudge against the appellant. Therefore, I find no reason to believe that the appellant was falsely implicated, leaving the actual culprit. In the FIR (Ext. P-1), lodged by the mother of the victim, it has been stated that the victim was threatened by the appellant and that, on being threatened with fear of death, the victim did not reveal anything against the appellant. 15. From the FIR as well as the evidence of P.W. 4, it is found that, on being insisted upon by P.W. 4, the victim had disclosed about the involvement of the appellant. 16. Law is well settled that delay in lodging the FIR/complaint is to be explained and unexplained delay raises suspicion about the truth of the prosecution version. In the case of Surjan (supra) it was noticed that there was delay of 10 days in lodging the complaint and the appellant failed to explain the delay. In view of the above unexplained delay, the Supreme Court refused to confirm the conviction and sentence awarded against the appellants. In the case of Nayan Jyoti Das (supra) the appellant was charged under section 376 IPC and he was convicted and sentenced for the said offence. There was unexplained delay of six months in lodging the FIR. A learned Single Judge of this Court, while setting aside the impugned conviction and sentence, observed that the prosecution failed to explain the inordinate delay of six months in lodging the FIR. In view of the unexplained inordinate delay, the court refused to accept, the version of the prosecutrix. In the case of Nabin Bora (supra), conviction under Section 376 was recorded on the basis of the sole testimony of the prosecutrix. In view of the unexplained inordinate delay, the court refused to accept, the version of the prosecutrix. In the case of Nabin Bora (supra), conviction under Section 376 was recorded on the basis of the sole testimony of the prosecutrix. On appeal, a learned Single Judge of this court observed that there was delay of 14 days in lodging the FIR and the said delay was not explained. Due to the said unexplained delay, the court refused to believe the uncorroborated testimony of the prosecutrix and accordingly, set aside the conviction and sentence, awarded against the appellant. In the above referred cases, the delay was not properly explained by the prosecution. But in the present case, the delay, in lodging the FIR, has been explained. The cause of delay was the fear psychosis created by the threat given by the appellant. In the FIR, it has been clearly stated that appellant had, after committing the rape in 2007 and thereafter also, repeatedly threatened the victim, who was a minor girl and that she was even threatened with fear of death. The victim, in her evidence, given as P.W. 2, clearly stated that, on being threatened by the appellant, she did not disclose about the incident to anybody. The evidence of the P.W. 2 that she was threatened by the appellant remained unchallenged. Even no suggestion was put to her challenging her said evidence. 17. In the case of Dildar Singh (supra), a minor below the age of 16 years was raped by her teacher. She did not report the incident to anyone either on the first occasion or on the second. When she became pregnant, she could not keep it secret since her mother had discovered that she was pregnant. At this stage, she disclosed the matter. The FIR was lodged after three months of the incident. The trial Court convicted the appellant under Section 376 and 506 IPC. The High Court in appeal upheld the conviction and sentence. Aggrieved by the said order of the High Court, the convicted person as appellant approached the Supreme Court. It was argued that delay in lodging the FIR was fatal to the case of the prosecution. The Supreme Court, dismissing the appeal observed as follows:-- 6. The main submission urged on behalf of the appellant is that there was considerable delay in lodging the first information report. It was argued that delay in lodging the FIR was fatal to the case of the prosecution. The Supreme Court, dismissing the appeal observed as follows:-- 6. The main submission urged on behalf of the appellant is that there was considerable delay in lodging the first information report. It is also argued that there was never any complaint about the earlier incident. Therefore, the delay in lodging the report was fatal to the case of the prosecution. We notice from the judgment of the High Court that the High Court has referred to several decisions of this Court and applied the principles laid down therein to the facts of the present case. This Court has observed in several decisions that the Courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. A girl in a tradition bound non-permissive society would be extremely reluctant even to admit that any incident, which is likely to reflect upon her chastity, had occurred, being conscious of the danger of being ostracized by the society or being looked down by the society. Her not informing any one about the incident in the circumstances cannot detract from her reliability. In normal course of human conduct an unmarried girl would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate such incident. Overpowered, as she may be, by a feeling of shame her natural inclination would be to avoid talking to anyone, lest the family name and honour is brought into controversy. Thus, delay in lodging the first information report cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same on the ground of delay in lodging the first information report. Delay has the effect of putting the Court on guard to search if any explanation has been offered for the delay and, if offered, whether it is satisfactory. 7. In the instant case, the girl was a minor below the age of 16 years. She was studying in Class VIM and the appellant was the drawing teacher of that class. Delay has the effect of putting the Court on guard to search if any explanation has been offered for the delay and, if offered, whether it is satisfactory. 7. In the instant case, the girl was a minor below the age of 16 years. She was studying in Class VIM and the appellant was the drawing teacher of that class. It is no doubt true that the prosecutrix did not report the incident to anyone cither on the first occasion or on the second. Ultimately a stage was reached when she could not keep it a secret since her mother discovered that she was pregnant. In these circumstances, she was compelled to disclose the true facts. Having regard to the facts and circumstances of the case, we do not find any infirmity in the reasoning of the High Court and the conclusion reached by it. 18. In view of the above discussion and the principles laid down by the Supreme Court, I am inclined to hold that in the case at hand the delay has been properly explained and as such, the delay is not fatal for prosecution case. Therefore, in the attending facts and circumstances the sexual intercourse committed by the appellant on the said minor amounted to rape. Having considered all aspects of the matter, I find that the learned trial judge has properly appreciated the evidence on record and rightly arrived at the findings that the appellant committed the offence charged against him. The findings arrived at by the learned trial judge are found to be reasonable and plausible. Therefore, I find no error in the impugned judgment and order requiring interference. There is no merit in this appeal. In the result, the appeal is dismissed and the impugned conviction and sentence are upheld and confirmed. Return the L.C.R. Appeal dismissed