Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 1006 (GAU)

K. Sangkhuma v. State of Mizoram

2014-11-19

NISHITENDU CHAUDHURY

body2014
1. This appeal under section 374 of the Code of Criminal Procedure is directed against the judgment and order dated 1.3.2012 passed by learned Addl. Session Judge-I, Aizawl District, Aizawl convicting the appellant under section 376(2)(f), IPC in SR Case No. 167/2011 and sentencing him to suffer RI for 10 years with a fine of Rs. 5,000, in default, to suffer RI for another 6 months. 2. The prosecution story is that on 29.7.2011, Kolasib Police Station received written ejahar from one H.C. Hrangkunga informing that on,, the same date at around 12/12:30 p.m., the present accused K. Sangkhuma committed rape in his house on his 11 years old granddaughter. Thereupon, police registered Kolasib PS. Case No. 47/2011 on 29.7.2011 under section 376(2)(f), IPC and started investigation. 3. The I.O visited the place of occurrence, drew sketch map and examined the witnesses including the victim girl and arrested the accused. Charge sheet was submitted against the accused after completion of trial. On being committed to sessions, the learned Session Judge framed the following charge against the accused by order dated 15.11.2011: “That you on 21.7.2011 at about 12:30 p.m., you committed rape on (name withheld) 11 years inside your residence and thereby committed an offence under section 376(2)(f), IPC and within the cognizance of this court, And I hereby direct that you be tried by this court on the said charge.” 4. The accused pleaded not guilty and claimed to be tried. Prosecution examined as many as 6 witnesses including the victim, the doctor and the I.O. Defence did not lead any evidence. Thereafter, the accused was examined under section 313, Cr.PC and both the sides were heard in course of argument. 5. The learned Session Judge by judgment and order dated 1.3.2012 held the accused guilty of offence under section 376(2)(f) of the IPC and sentenced him to suffer RI for a period of 10 years with a fine of Rs. 5,000, in default, to suffer RI for another 6 months. It was provided that if the fine was realized, it be given to the victim. It is to mention here that throughout the period of trial, the accused continued to remain in custody and he was not released on bail. It is stated that the appellant is still in custody. 6. It was provided that if the fine was realized, it be given to the victim. It is to mention here that throughout the period of trial, the accused continued to remain in custody and he was not released on bail. It is stated that the appellant is still in custody. 6. The aforesaid judgment and order dated 1.3.2012 passed by the learned Session Judge has been challenged before this court by way of jail appeal. This court appointed Mr. Lalfakawma learned counsel as amicus curiae to assist this court. 7. I have heard Mr. Lalfakawma, learned amicus curiae as well as Mr. A.K. Rokhum, learned Public Prosecutor, Mizoram. 8. The case in hand arose out of Kolasib P.S. Case No. 47/2011 under section 376(2)(f), IPC. The case was registered on 29.7.2011 on the basis of a written FIR lodged by one H.C. Hrangkunga informing that on the same day at around 12/12:30, present appellant took his 11 year old granddaughter inside his house and then raped her. This FIR has been exhibited as Exhibit PI by the informant who was examined as PW1 in this case. He admitted in course of cross-examination that he was not present at the time of occurrence and came to know about the offence only after he was informed by others. 9. PW2 is the victim. She stated on oath that the accused is a permanent resident of the area. She was born on 26.12.1999 and was reading in Class VI at that time. On the day of occurrence at about 10/11 a.m., her mother sent her to buy some articles from the nearby shop. There the accused saw her and asked her to accompany him to his house. She refused to accompany but he caught hold of her hand and pulled her in his house. There was nobody in the house at that time. He laid her on the bed, pulled off her petticoat and then lied on her and committed sexual intercourse with her. He told her that if she would not like to have sex with him he would tell her parent and since she was afraid of being beaten up by her parents she could not but to yield to have sex with him. She admitted that she did not shout for help. He told her that if she would not like to have sex with him he would tell her parent and since she was afraid of being beaten up by her parents she could not but to yield to have sex with him. She admitted that she did not shout for help. However, at that time, one Atluanga was near the house and he knew what was happening inside the house. He told his sister Amuani who told the mother of the victim and then mother of the victim and aforesaid Atluanga’s father and mother came. In the mean time, Atluanga broke open the door and then she ran out of the house. But when she was jumping out of the house, her mother and Atluanga’s parent had arrived. She claimed that even before the present occurrence, the accused had sexual intercourse with her for more than 10 times and on each of those occasions, she used to be paid Rs. 10 and sometimes Rs. 50 by the accused. Out of fear for the accused, she did not inform this to her parent. It is her further statement that she was taken by the Police to the Medical Officer at Kolasib who examined her medically. She said that each time on earlier occasion when the accused used to have sex with her, he used to warn her that in case she would refuse to have sex, he would detain her as his wife and would inform her parents. In course of cross-examination, she was questioned as to whether she raised any voice of alarm when accused had caught her hand and took her into his residence. She denied to have raised any hue or cry for help even in course of cross-examination. She reiterated that accused had committed sex on her for more than 10 times. But she did not want to inform it to anybody. Police did not seize her under garments. 10. PW3 is the mother of the victim. She stated that the victim was born on 26.12.1999. According to her, on 29.7.2011, at about 10 a.m., she had sent her to buy pan (betel leaf). After sometime, Amuani came and asked her to go to the house of the accused and when she reached the house of the accused, she found that victim was standing outside the house of the accused and was weeping. According to her, on 29.7.2011, at about 10 a.m., she had sent her to buy pan (betel leaf). After sometime, Amuani came and asked her to go to the house of the accused and when she reached the house of the accused, she found that victim was standing outside the house of the accused and was weeping. PW3 took the victim into the house of the accused, where she found that the accused was only with underpant (undergarment). She asked him as to what had happened to which the accused replied that he intended to give some clothes to the victim. At this, she suspected that something had happened and took the victim to her house and asked her as to what had happened. When the victim disclosed that the accused had sexual intercourse with her and that even on previous occasions he had done same thing to her. In course of cross-examination, she admitted that she did not see the occurrence by herself. She admitted that victim did not inform about the earlier offence committed by the accused who was related to them. Since she admitted that her daughter did not raise any hue or cry for help they did not have any information regarding the previous episodes of sexual assaults. She stated that as she was upset, she did not accompany the victim to Civil Hospital where the victim was medically examined. 11. PW4 is the same Atluanga as mentioned by the victim in her examination-in-chief. He said that he was nearby the house of the accused when he heard that the victim was crying and saying 'Apa Sangkhum, a na, ka duh tawh lo' (Uncle Sangkhum, it pains, I don't want it any more). Having heard so, he disclosed it to his mother but his mother did not believe and so he again go back to the place of occurrence with his sister Amuani and broke open the door of the accused and found that the victim was inside the house. This witness has not given any description as to the position of the victim at that time. He did not mention as to whether she was in her dress or not. He also did not say if he had found her in compromising position with the accused. This witness has not given any description as to the position of the victim at that time. He did not mention as to whether she was in her dress or not. He also did not say if he had found her in compromising position with the accused. However, in course of cross-examination, he denied that he did not see the victim inside the house of the accused and he denied the suggestion that accused did not commit any offence as alleged. 12. PW5 is the Medical Officer who examined the victim on the day of occurrence on being produced by the personnel of Kolasib Police Station. He proved the medical report in respect of the victim as Exhibit P2 and the medical report in respect of the accused as Exhibit P3. He denied the suggestion put to him in course of examination that he did not examine the accused or the victim. He also denied to have made false statement. Exhibit P2 is on record. It is in original. Although in paragraph 11 of the Exhibit P2, it is mentioned that there is previous history of intercourse by the victim, but in item No. 3 of the finding, it is mentioned that there is no seminal stains or other stains on the clothes of the victim. The finding recorded in Exhibit P2 against Entry No. 1 to 8 are quoted below: Findings: (1) Physical & Mental Health: Normal (2) Influence of Alcohol or Drugs at the time of Examination: Not under influence (3) Seminal stains or others stain on clothes: (4) Marks of violence on the body: Nil (5) Gential examination: (a) Pubic Hair: Not developed (b) Seminal stains: Nil (c) Bruising/Laceration of external genital: Nil (d) Hymen: Tom (6) Signs of infection (Discharge of colour etc.) with duration: Nil (7) Laboratory reports of smears/discharge/stains: Underwear and stain from vagina sent for seminal fluid. (8) X-Ray report for age determination (When age cannot be as certain by Medical Officer): Not done" Signature of Female witness/ Staff Nurse Present During Examination.” Medical Officer Kolasib: Mizoram 13. Exhibit P3 is in original and the same is on record. It relates to Medical Examination of the victim. He was medically examined on 29.7.2011 at 2:00 p.m., i.e., within one hour and a half from the time of alleged occurrence. Exhibit P3 is in original and the same is on record. It relates to Medical Examination of the victim. He was medically examined on 29.7.2011 at 2:00 p.m., i.e., within one hour and a half from the time of alleged occurrence. Although it was mentioned that the accused had not changed his clothes, he did not bathe or wash in the finding, it was mentioned that there was no seminal, stains or other stains on his cloth. He, of course/was found to have consumed alcohol. The finding of Exhibit P3 are quoted below for ready reference: “Findings: 1. Physical & Mental Health: NAD 2. Influence of Alcohol or Drugs at the time of Examination: Has consumed 1 glan of alcohol in the morning 3. Seminal stains or others stain on clothes: Not seen 4. Marks of violence on the body: Not seen. 5. Genital examination: (a) Development of Genital organs: Normal. (b) Pubic Hair (Clothing of hair due to semen): Normal (c) Sacratches or Lacerations on Penis: Absent (d) Abrasion or Laceration on Penis: Absent (e) Presence of smegma around corona eland: Nil 6. Signs of infection (Discharge, Colour & Ulcer): Nil 7. Laboratory reports of smears from glans Penis or stain on clothes or body: smear from glans penis and underwear sent for seminal fluid. 8. X-Ray report for age determination (Whom age cannot be....... Medical Officer): Not done. Signature of Female witness/ Staff Nurse Present During Medical Officer Kolasib:Mizoram" 14. PW6 is the I.O. in the case. He stated that he registered Kolasib Police Station Case No. 47/2011 under section 376 IPC on receipt of the FIR from the PW1. He proved arrest memo as Exhibit P6, seizure memo as Exhibit P5, Sketch map of the place of occurrence as Exhibit P4 and birth certificate of victim as Exhibit P8. He claimed to have visited the place of occurrence and drew the sketch map. In course of cross-examination, he made requisition for medical examination of the victim and the accused and took them to Kolasib Civil Hospital. He claimed to have got statement of the accused recorded by Magistrate under section 164, Cr.PC and finding a prima facie case against the accused in course of investigation, submitted Exhibit P 7 charge sheet against him. Although there was some cross-examination of this witness, but it had no material bearing on the evidence led by him. 15. He claimed to have got statement of the accused recorded by Magistrate under section 164, Cr.PC and finding a prima facie case against the accused in course of investigation, submitted Exhibit P 7 charge sheet against him. Although there was some cross-examination of this witness, but it had no material bearing on the evidence led by him. 15. After aforesaid evidence was led by the prosecution, the learned d Session Judge examined the accused under section 313/281 of the Code of Criminal Procedure. The question put to the accused do hot inspire confidence about validity of the exercise. Without referring to each and every piece of inculpatory material from the prosecution evidence,, 'the learned Session Judge asked the accused as to whether he had sex with the minor victim on 29.7.2011. The victim also answered in equally vague manner and said that for over 20 times he had occasion of sex with the victim in long time, the first one being on 18.10.2010. Only one question involving inculpatory material, put to the accused was that, PW4 heard the victim crying and saying to the accused that 'Uncle Sangkhum, it pains, I don't want it any more and then he entered the house with his sister. Accused answered that they entered afterward. It is these materials which have been relied on by the learned Session Judge to hold the appellant guilty of commission of rape and thereupon he was sentenced to suffer RI for 10 years with a fine of Rs. 5,000, in default, to suffer RI for 6 months more. 16. Mr. Lalfakawma, learned amicus curiae submits that the so-called statement under section 164, Cr.PC placed on record and relied on by the learned Session Judge was no statement under section 313, Cr.PC in Ike eye of law. The statement was recorded in the printed form but the form was not filled up to show as to when was the accused produced before the Magistrate and as to when was he examined. The statement was recorded in the printed form but the form was not filled up to show as to when was the accused produced before the Magistrate and as to when was he examined. It also does not to whether sufficient time for reflection was given to the Relying on the judgment of the hon'ble Supreme Court in the case of Mohammed Ajmal Mohammad Amir Kasab Alias Abu Mujahid v. State of Maharashtra, (2012) 9 SCC 1 , the learned amicus curiae would argue that under section 281 of the Code of Criminal Procedure, the Magistrate while recording statement under section 164, Cr.PC is duty bound to make a memo of the substance of the examination of the accused in the language of the court and such memo has to be signed by the Magistrate and shall form part of the record. Clause (2) of the same Section requires that Magistrate is also to put on record, the whole of such eviction including every question put to him and every answer given by him. The same should be done if practicable in the language of the accused and if that is not practicable then in the language of the court. The learned amicus curiae submits that the statement of the witnesses were recorded in Mizo language and it was very much practical on the part of the learned Magistrate to record the statement of the accused as well in Mizo. There is no memo as required under section 281(1) of Cr.PC in the present case. In the case of Mohammed Ajmal Mohammad Amir Kasab (supra), reflection time was given by the recording Magistrate to the accused and there was a memo in strict compliance of the provision of section 164(4) as well as section 281 of the Cr.PC. It is under such circumstances that piece of statement was relied on by the court. But here in this case, the so-called statement recorded under section 164, Cr.PC is vitiated for non-compliance of section 281(1) and 281(2) as well as 164(4) of Cr.PC. In the absence of giving any reflection time by the Magistrate before recording statement, the said cannot be relied on in anyway. 17. Coming to the statement recorded under section 164, Cr.PC, it appears that the prosecution did not examine the Magistrate, who had recorded statement of the accused. In the absence of giving any reflection time by the Magistrate before recording statement, the said cannot be relied on in anyway. 17. Coming to the statement recorded under section 164, Cr.PC, it appears that the prosecution did not examine the Magistrate, who had recorded statement of the accused. Had the recording Magistrate be examined, perhaps some light would have been cast as to whether reflection time was given to the accused before recording his statement. Considering the totality of the circumstances, including failure on the part of the prosecution to examine the recording Magistrate, failure on the part of the recording Magistrate to make a memo as required under section 281(1) and absence of any material suggesting that sufficient reflection time was given to the accused before recording his statement, it would not be safe to rely on this statement recorded under section 164, Cr.PC. Similarly, the statement of the accused under section 313 of the Cr.PC also was not a wholehearted exercise by the learned Session Judge. It is no longer res Integra that statement under section 313, Cr.PC is not a piece of substantive evidence. The statement of the accused is never recorded after administering oath to him. This is because an accused cannot be asked to be a witness against himself contrary to the mandate of article 20 of the Constitution of India. This is why, it is established of law that question would be put to the accused under section 313, Cr.PC not for making any evidence but for giving an opportunity to the accused to explain the exculpatory material. Exercise under section 313, Cr.PC is really for compliance of the principles of natural justice and so as to give opportunity to the accused for explaining the materials collected against him by the prosecution. If any reference is necessary, one can rely on the case of State of Maharashtra v. Sukhdeo Singh and Another, 1992 Crl.LJ 3454 at paragraph 50) and Sanatan Naskar and Another v. State of West Bengal, (2010) 8 SCC 249 (at paragraphs and 24). The scope and object of section 313 Cr.PC has been candidly mentioned by the hon'ble Supreme Court in paragraphs 23 and 24 of the judgment and the same paragraphs are quoted below for ready reference: "23. The scope and object of section 313 Cr.PC has been candidly mentioned by the hon'ble Supreme Court in paragraphs 23 and 24 of the judgment and the same paragraphs are quoted below for ready reference: "23. 'The statement of the accused can be used to test the veracity of the exculpatory nature of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case The provisions of section 313(4), Cr.PC explicitly provide that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence for or against the accused in any other enquiry into or trial for any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per d the provisions of the Code but has its own limitations. The courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this section should not be considered in isolation but in conjunction with evidence adduced by the prosecution. 24. Another important caution that courts have declared in the pronouncements is that conviction of the accused cannot be based merely on the statement made under section 313, Cr.PC as it cannot be regarded as a substantive piece of evidence. In Vijendrajit Ayodhya Prasad God v. State of Bombay the court held as under: "3.....As the appellant admitted that he was in charge of the godown, further evidence was not led on the point. The Magistrate was in this situation fully justified in referring to the statement of the accused under section 342 as supporting the prosecution case concerning the possession of the godown. The contention that the Magistrate made use of the inculpatory part of the accused’s statement and excluded the exculpatory part does not seem to be correct. The statement under section 342 did not consist of two portions, part inculpatory and part exculpatory. It concerned itself with two facts. The accused admitted that he was in charge of the godown, he denied that the rectified spirit was found in that godown. He alleged that the rectified spirit was found outside it. The statement under section 342 did not consist of two portions, part inculpatory and part exculpatory. It concerned itself with two facts. The accused admitted that he was in charge of the godown, he denied that the rectified spirit was found in that godown. He alleged that the rectified spirit was found outside it. This part of his statement was proved untrue by the prosecution evidence and had no intimate connection with the statement concerning the possession of the godown.” 10. Paragraph 50 of the judgment of Sukhdeo Singh (supra) is also a mile stone to understand the nature and scope of the exercise made under section 313 of the Cr.PC. This paragraph is also quoted below for ready reference: “50. Section 313 of the Code is a statutory provision and embodies the a fundamental principle of fairness based on the maxim audi alterant partem. It is trite law that the attention of the accused must be specifically invited to inculpatory pieces of evidence or circumstances laid on record with a view to giving him an opportunity to offer an explanation if he choose to do so. The section imposes a heavy duty on the court to take great care, to ensure, that the incriminating circumstances are put to the accused and his response solicited. The words shall question him clearly bring out the mandatory character of the clause and cast an imperative duty on the court and confer a corresponding right on the accused to an opportunity to offer his explanation for such incriminating material appearing against him. It is, therefore, true that purpose of the examination of the accused under S. 313 is to give the c accused an oppprtunity to explain the incriminating material which has surfaced on record. The stage of examination of the accused under clause (b) of sub-section (1) of section 313 reaches only after the witnesses for the prosecution have been examined and before the accused is called on to enter upon his defence. At the stage of closure of the prosecution evidence and before recording of statement under section 313, the learned Judge is not expected to evaluate the evidence for the purpose of deciding whether or not he should question the accused. After the section 313 stage is over he has to hear the oral submissions of counsel on the evidence adduced before pronouncing on the evidence. After the section 313 stage is over he has to hear the oral submissions of counsel on the evidence adduced before pronouncing on the evidence. The learned trial Judge is not expected before he examines the accused under section 313 of the Code, to sift the evidence e and pronounce on whether or not he would accept the evidence regarding any incriminating material to determine whether or not to examine the accused on that material. To do so would be to pre-judge the evidence without hearing the prosecution under section 314 of the Code. Therefore, no matter how weak or scanty the prosecution evidence is in regard to a certain incriminating material, it is the duty of the court to examine the accused and f seek his explanation thereon. It is only after that stage is over that the oral arguments have to be heard before the judgment is rendered. It is only where the court finds that no incriminating material has surfaced that the accused may not be examined under section 313 of the Code. If there is material against the accused he must be examined. In the instant case it is not correct to say that no incriminating material had surfaced against the accused, particularly accused No. 5, and, hence, the learned trial Judge was not justified in examining the accused under section 313 of the Code.” 19. In the case in hand, the learned Session Judge put only 3 questions to the accused. This questions are also quoted below for ready reference, and to show that accused was not given any opportunity whatsoever to explain whatever materials was collected by the prosecution against him rather by putting question No. 1 as quoted below, the learned Session Judge virtually made the accused to stand witness against himself. The statements of the accused under section 313m Cr.PC are quoted below: "FORM FOR RECORDING EXAMINATION OF ACCUSED EXAMINATION OF ACCUSED PERSON (Section 313/281 of the Criminal Procedure Code) The examination of accused K. Sangkhuma aged about 50 years taken before me on 7th January, 2012 My name is K. Sangkhuma My father's name is Thanghleia (L) I am by religion Christian My home is in Kolasib, Police Station Kolasib District I reside at Kolasib Hmar Vena Q. 1 From the evidence, you had sex with an 11 year old victim on 29.7.2011. What do you have to say? Ans. What do you have to say? Ans. It is true. We had consensual sex as the little girl used to come over to my place. We had sex for over 20 times and I cannot remember the exact figure. On all these occasions, she is the one who comes to me. The first incident happened on 18th October, 2010. Q.2 During that time, Lalremtluanga, heard the victim cry out saying 'Uncle Sangkhum, it hurts, I do not want it anymore? He then entered your house with his sister Lalrammawii. Is it true? Ans. They entered afterwards. Q.3 Do you have any evidence? Ans. No, I don't. Sd/- Signature or Mark of the accused Sd/r Signature of Magistrated/Judge The above examination was taken in my presence and hearing and contains a full true account of the statement made by the accused.” 20. Once the statement under section 164, Cr.PC which is stated to be the confessional statement of the accused is kept out-of consideration, it is to be seen as to whether prosecution has succeeded to the prove beyond reasonable doubt that the accused had committed the offence of rape on the minor victim. Rape has been defined under the IPC at section 375 the four exigencies under which a rape is constituted involve penetration. There are as many as 7 circumstances, when such an act would amount to tape. Section 375, IPC is also quoted below: "375. Rape. - A man is said to commit 'rape' if he - (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, Under the circumstances falling under any of the following seven descriptions: First. - Against her will. - Against her will. Secondly. - Without her consent. Thirdly. - With her consent, when her consent has been obtained by putting her or any persortin whom she is interested, in fear of death or of hurt. Fourthly. - With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly. - With her consent when, at the rime of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly. — With or without her consent, when she is under eighteen years of age. Seventhly. - When she is unable to communicate consent." 21. Having so found it is to be seen as to whether the ingredients of section 375 have been made out in the present case. PW2 and PW4 are the only two witnesses of the incident. PW2 is the victim here who is the minor of 11 years of age. As pointed out above, she stated that the accused pulled her to his house at against her consent and pulled off her petticoat, lied her on the bed and mounted on her and committed sexual intercourse. Admittedly she did not raise any hue or cry while she alleged that accused had made her to lie on bed and he lied on top of her. She did not say in so many words that there was any penetration. This omission on the part of the victim assumes more importance once finding of Exhibit P2 is taken into consideration. Although she had a history of previous intercourse, but as per the finding at entry No. 3 of Exhibit P2, there was no seminal stains or other stains on her clothes and there was no mark of violence on her body. At page 1 of Exhibit PW2, the Doctor specifically mentioned that there was no change of clothing and the victim did not have bath prior to medical examination. She was examined within two hours of the alleged offence. At page 1 of Exhibit PW2, the Doctor specifically mentioned that there was no change of clothing and the victim did not have bath prior to medical examination. She was examined within two hours of the alleged offence. It is also to be seen that her underwear and vaginal swab was sent for examination to the laboratory to see as to whether there was seminal fluid. But prosecution failed to make any whisper about the outcome of the report. It is also not claimed as to whether report was at all obtained by the prosecution. Had the report being produced and it was shown that there was seminal fluid in the vaginal swab of the victim in that event there would have been no doubt about the commission of the offence of rape. Section 114(g) of the Evidence Act provides that court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. Here in this case, prosecution not only withheld the laboratory report in this regard but also made no statement being the reason for such failure and so there is no escape from drawing presumption under section 114(g) of Evidence Act against the prosecution and in favour of the accused. Same is the position in regard to Exhibit P3 which also contains a specific endorsement to the effect that the accused did not have bath or did not change his clothing after the occurrence and before his medical examination. Here in this case, the accused was also medically examined within 2 hours from the time of alleged occurrence. It is revealed from entry No. 3 of the finding of Exhibit P3 that no seminal stain or other stain was available in his clothes. Had there be a rape, even in the absence of in-vitro ejaculation, invariably there would have been seminal stain on the clothing of the accused if not on the clothing of the victim. Even in this case also, smears from his glens and prepuce and his underwear were sent for laboratory examination and the, report was not made available to the court. Even in this case also, smears from his glens and prepuce and his underwear were sent for laboratory examination and the, report was not made available to the court. Since finding at S I. No. 3 shows that there was no seminal stains or other stains on the underwear of the accused and that prosecution withheld the laboratory report in regard to examination of the smears of his glens, prepuce and his underwear, presumption under section 114(g) has to be taken against the prosecution and in favour of the accused. There is, therefore, a reasonable doubt as to whether accused had committed rape on the victim. 22. PW4 who claimed to have been nearby the place of occurrence broke open the door and found the victim inside the house of the accused. He also does not say as to the condition of the accused at the first sight when he broke open the door. He did not say as to whether the victim was in dress or not. The only material he could furnish is that he had heard the victim crying and saying 'Apa Sangkhum, a na, ka duh tawh Id (Uncle Sangkhum, it pains, I don't want it any more). Now if the commission of rape is not proved then at-least the accused did something to the victim causing her pain. One evidence is that he made her to lie on his bed and he himself lied on her. Since there was no seminal fluid in the garment if either the accused or the victim, such on act on the part of the accused would definitely constitute an offence under section 154, IPC. At this stage, Mr. A.K. Rokhum, learned Public Prosecutor would argue that this piece of evidence constitutes an offence as to attempt to rape. Let us examine the evidence once again to see as to whether there was any attempt to rape. The PW2, i.e., victim stated on oath that the accused pulled off her petticoat and then made her to lie on his bed and he himself mounted on her. There is no allegation that he had put off her undergarment. The existence of undergarment is discernible from Exhibit P2 which shows that the victim was putting on undergarment which did not contain any seminal stains and it was sent to laboratory for examining existence of seminal fluid. There is no allegation that he had put off her undergarment. The existence of undergarment is discernible from Exhibit P2 which shows that the victim was putting on undergarment which did not contain any seminal stains and it was sent to laboratory for examining existence of seminal fluid. When there was an undergarment put on by the victim and there is no allegation that the accused had put it off but had only pulled off the petticoat, it cannot be said that there was either any rape or that there was any intention of rape on the part of the accused. Having so found, conviction of the accused under section 376(2)(g), IPC is hereby set aside. However, he is convicted under section 354, IPC and is sentenced to suffer RI for 5 years and to pay a fine of Rs. 5,000 which if paid shall be given to the victim. However, if the fine is not paid, the accused shall be liable to suffer RI for another 6 months and both the sentences shall run concurrently. The period already served by the accused shall be set off. 23. Appeal stands partly allowed. 24. Before parting with the record, it is necessary to put on record the assistance and guidance given by Mr. Lalfakawma, learned amicus curiae in this case. The learned amicus curiae has rendered sincere service by preparing the case and relying on the reported judgments and in assisting the court to arrive at the decision. He is entitled to a fee of Rs. 7,500 to be paid by the Mizoram Legal Services Authority, Aizawl.