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2014 DIGILAW 43 (GAU)

Zorama v. State of Mizoram

2014-01-17

L.S.JAMIR

body2014
ORDER : Heard Mr. L.H. Lianhrima, learned Amicus Curiae appearing on behalf of the appellant as well as Mr. Lalsawirema, learned Addl. Public Prosecutor appearing for the State of Mizoram. 2. This appeal is directed against the judgment and order dated 28.8.2012 passed by the learned Addl. District & Sessions Judge-IV, Aizawl in SR No. 7/2010 under Section 376 (1) IPC whereby the accused Zorama was sentenced to undergo Rigorous Imprisonment for 7 years and to pay a fine of Rs. 5000/- in default, to undergo Simple Imprisonment for a period of 30 days. 3. The case of the prosecution is that on 7.10.2010 one Vanlalruati lodged an FIR before the Officer-in-charge, Kulikawn Police Station stating that beginning from September 2008 till October, 2010, her granddaughter Lalrinsangi (14) daughter of Lalthanmawia of Chaltlang was threatened and sexually abused by her husband Zorama (46), Gorkhali by birth. She came to learn of these incidents while taking her grand-daughter for a medical check up at Aizawl. They realize that she was 4 months pregnant, bearing the child of her husband. Her granddaughter revealed all the incidents to her and being deeply troubled and hurt by this situation she requested to take necessary action. On the basis of the FIR Kulikawn Police Station Case No. 161/2010 dated 7.10.2010 under Section 376 (2) (f) IPC was registered against the accused Zorama. After completion of the investigation, the IO filed charge sheet against the accused under Section 376 (2) (f) IPC. Charge under Section 376 (1) IPC was framed against the accused to which he pleaded not guilty and, therefore trial proceeded. During the course of trial, the prosecution examined 6 witnesses including the informant, prosecutrix, medical officer and the case IO. The defence examined one defence witness and the accused was also examined under Section 313 Cr. P.C. 4. PW1 is the informant and the granddaughter of the victim. In her deposition, she stated that the accused Zorama is her third husband. She often goes to work in the field with her husband/accused but he sometimes complained of sickness and use to go home earlier than her and even stayed back at home sometimes. P.C. 4. PW1 is the informant and the granddaughter of the victim. In her deposition, she stated that the accused Zorama is her third husband. She often goes to work in the field with her husband/accused but he sometimes complained of sickness and use to go home earlier than her and even stayed back at home sometimes. From the behaviour of her granddaughter/victim and her appearance, she had strong doubt and also that her husband accused did not allow her grand-daughter/victim to join her friends in any festive occassion outside and often restrict her movement outside the house. One day she took the victim to Civil Hospital, Aizawl to the Gynecological Department where she was detected to be pregnant with 4/5 months. When she asked the victim, she told her with tears in her eyes that it was Zorama (the accused) who had sexual intercourse with her many times by threatening to kill her and the victim. He had started having sexual intercourse with the victim since 2008. The victim had wanted to tell her many times but due to fear of the accused she was scared to tell her anything. On 7.10.2010, she reported the matter to the Police Station by submitting FIR and she identified Exhibit P-1 as the FIR and Exhibit P-1(a) as her signature. Her grand-daughter was also taken to the hospital on 7.10.2010 for medical examination and that she had a miscarriage after sometime and she kept the victim at CPD Home, Dawrpui Vengthar, Aizawl and the victim is pursuing her studies from there. In cross examination, she stated that the accused Zorama is a non-Mizo and he is of a Gorkha caste and he is 48 years old. She was married to him in the year 1999 and that she learnt that the victim was pregnant only on November, 2010. She learned that her pregnancy was the outcome of sexual intercourse with the accused. She denied the fact that she asked the accused to have sex with her granddaughter/victim. 5. PW2 is the victim/prosecutrix. She stated that she was born on 2.10.1996 and was now studying Class IX at Vaivakawn High School, Aizawl and presently staying at CPD Home, Dawrpui Vengthar, Aizawl. Her step grandfather/accused had sexual intercourse with her for the first time in the year 2008 but she could not remember the exact date. 5. PW2 is the victim/prosecutrix. She stated that she was born on 2.10.1996 and was now studying Class IX at Vaivakawn High School, Aizawl and presently staying at CPD Home, Dawrpui Vengthar, Aizawl. Her step grandfather/accused had sexual intercourse with her for the first time in the year 2008 but she could not remember the exact date. When her grandmother had gone to Aizawl, she was sleeping on her bed at night and the accused came to her bed while she was fast asleep and he slept beside her. When she woke up due to his movement she was surprised and asked him to go away but he did not listen to her and threatened her with a knife and told her not to make any sound otherwise he would kill her and her grandmother. He raped her and her private part was bleeding and he left with a warning that if she disclosed about the incident to anyone including her grandmother he would kill her and her grandmother. He continued to have sexual intercourse with her in the gap of about one week till 2009. During the year 2009, he frequently had sexual intercourse with her and she did not disclose about the incident due to fear of death of herself as well as her grandmother. Taking advantage, whenever her grandmother was out of the house, he used to have sexual intercourse with her. The accused used to give her one medicine namely quinine. The accused was very possessive and he never allowed her to go out to have fun even during Christmas and New Year and other festive occasion. Later, when her menstrual period became irregular, her grandmother took her to Civil Hospital, Aizawl in the Gynecological Department. The doctor disclosed that she was pregnant with 4/5 months and her grandmother was surprised and she asked her to tell the name of the person responsible and therefore she disclose that the accused is the person responsible for making her pregnant. The day they went to the hospital was on 6.10.2010 and on 7.10.2010 her grandmother filed the complaint before the Police Station and again she was medically examined by the doctor at the Civil Hospital. The day they went to the hospital was on 6.10.2010 and on 7.10.2010 her grandmother filed the complaint before the Police Station and again she was medically examined by the doctor at the Civil Hospital. She had a miscarriage after one week and hospitalized for a week or so and now she is staying at Aizawl in CPD Home, Dawrpui Vengthar and pursuing her study at Vaivakawn High School. In cross examination, she stated that there were three beds in the bedroom in their house. One was occupied by her grandmother and her husband and the other was occupied by her aunty Lalrinfeli (L) and the last was occupied by herself and there was no partition between the bed. Her aunt Lalrinfeli died in the year 2007. She stated that even when her grandmother was present in the house the accused used to come to her bed to sleep with her while her grandmother was asleep and she denied other suggestion put by the defence. 6. PW3 in his deposition stated that the police seized two knives and one electric wire by which the accused used to threaten the victim saying that he would electrocute with the same was seized from the house of the accused when he was present. The police asked him to sign on the seizure memo and he identified Exhibit M-I as the two knives seized by the police and Exhibit P-2 as the seizure memo and Exhibit P-2 (a) as his signature. In cross examination, he stated that he did not see the accused threatening the victim and that he was present when the victim stated that he was threatened by the accused. 7. PW4 was the president of YMA Branch Chungtlang in the year 2010. On receiving a phone call from the O.C of Kulikawn P/S the the police officer requested the YMA to keep guard on the accused Zorama at his house as he received information that he committed rape upon the victim. On such request, he along with the Treasurer Chungtlang YMA Branch kept guard/watch over the accused from the house of his next door neighbor namely Vanlalsanga. The police personnel reached the house of the accused on the same night and he also immediately rushed to his house and the accused was immediately handcuffed and arrested. The accused was also interrogated by the police and he admitted his guilt. The police personnel reached the house of the accused on the same night and he also immediately rushed to his house and the accused was immediately handcuffed and arrested. The accused was also interrogated by the police and he admitted his guilt. The police seized two knives and a flexible wire under the bed of the accused and the said seizure was made in his presence. He identified Exhibit M-1 as the two knives and a flexible wire which was seized by the police. In cross examination, he stated that he does not know if the victim was earlier raped by the accused but he heard from the accused as well as the victim that in the present case the victim was raped by the accused on his bed. He did not see the police seizing the three articles from under the bed of the accused on being led by the accused. He was in the common room and the articles were brought by them from under the bed of the accused. 8. PW6 is the I.O of the case. In his deposition, he stated that on 7.10.2010 an FIR was received at Kulikawn PS from the informant (PW1) to the effect that her granddaughter/ victim age 14 years was raped by the accused who is her husband. After registering the case, investigation was conducted by him on being endorsed by the O.C of Kulikawn PS station. During investigation, he arrested the accused and also recorded the statement of the prosecutrix. From the statement made by the prosecutrix, he seized electric wire, kitchen knife and long knife which was more or less like khukri as the victim stated before him that the accused used such weapons to threaten her. He also seized the birth certificate of the prosecutrix and also forwarded the prosecutrix for medical examination. The medical report indicated that the victim was 4/5 months pregnant and her hymen was ruptured. He also recorded the statement of the informant (PW1) and also sent the accused for medical examination in order to ascertain whether the accused is mentally fit and physically potent. The medical officer examined the accused and was found him to be normal. He found a prima facie case against the accused and he did not deny to have committed the offence and he submitted charge-sheet against him under Section 376 (2) (f) IPC against the accused. The medical officer examined the accused and was found him to be normal. He found a prima facie case against the accused and he did not deny to have committed the offence and he submitted charge-sheet against him under Section 376 (2) (f) IPC against the accused. He found that the offence occurred some time in the year 2008 for the first time and during the said year the victim had not completed 12 years. He identified Exhibit P-4 as the birth certificate of the prosecutrix, Exhibit P-5 as the charge-sheet submitted by him and Exhibit P-o5(a) as his signature. In cross examination, he stated that he did not seize any other materials except which he had stated in his examination-in-chief. 9. PW7 is the Medical Officer. She deposed that she joined as medical officer at Civil Hospital Aizawl since April, 2010. On 7.10.2010, while she was on duty in the said hospital at the gynecology OPD, the victim was brought on requisition by the police for medical examination. She conducted the medical examination on the same day. Upon examination of the victim, she was found to be 24 weeks pregnant and at the time of her examination she was 14 years. She found her to be physically fit and normal and on examining her genital area, she did not find any sign of injury but her hymen was ruptured and there was no fresh wounds. He did not conduct separate test for ascertaining her age because physically she appeared to be the age she stated before her. During her examination, the victim stated before her that her grand-father (accused) had repeatedly raped her and such statement appears to be correct since there was no fresh wounds on her private part. He identified Exhibit P-3 as the medical report prepared by her and Exhibit P-3(a) as her signature. In cross-examination, she stated that the victim stated to her that she was carrying the child of her grand-father and attained menarchy at the age of 12 years. She also stated that from her examination, she cannot give a specific finding on the age of the rupture of her hymen. 10. The defence also examined one witness as DW1. In his deposition, he stated that he has been the president of village defense party at Chungtlang for a number of years. She also stated that from her examination, she cannot give a specific finding on the age of the rupture of her hymen. 10. The defence also examined one witness as DW1. In his deposition, he stated that he has been the president of village defense party at Chungtlang for a number of years. At that time, when the accused was arrested, he was holding the said post and he continues to hold the same post till date. During such time, the VDP did not receive any complaint from PW1 against the accused in connection with any offence including the offence for which the accused is being tried. He knows that the victim/prosecutrix was pregnant and due to such pregnancy the accused was arrested. He did not witness any seizure made by the police in this case and he had never known the accused to be of bad character and they had never received any complaint against him. In cross examination by the prosecution, he stated that the accused came to his village from Reiek. He does not know the family of the accused. The accused and his family have not been residing at Chungtlang for a long time. 11. The accused was also examined under Section 313 Cr. P.C. where he had denied raping the victim or threatening her with knives. However, he stated that he had sexual intercourse with her on her consent from the year 2009 and his wife also knew it. He also stated that she was 17 years and he did not know if the victim was pregnant. 12. I have considered the submissions made by the learned counsel appearing for the respective parties. 13. From a consideration of the deposition of the prosecutrix, it is seen that she was subjected to rape from a tender age when she was hardly 12 years old. The deposition of the PWs more particularly PW1 and PW2 corroborated with each other and there is no room for doubting their statement. PW4 who is an independent witness has stated that the accused admitted his guilt before the police in his presence. PW6 had also stated that he had seized one electric wire and kitchen knife and long knife which was used to threaten the victim by the accused. PW7 who is the medical officer had also stated that on examination, he found that the hymen of the victim was ruptured. PW6 had also stated that he had seized one electric wire and kitchen knife and long knife which was used to threaten the victim by the accused. PW7 who is the medical officer had also stated that on examination, he found that the hymen of the victim was ruptured. The defence while examining the PWs has not been able to demolish the case of the prosecution. The defence also examined one defence witness but the same has been of no help to the accused. 14. While the accused was examined under Section 313 Cr. P.C., though denying raping the victim, he had admitted having sexual intercourse with the victim. The age of the victim nor the birth certificate has been contested by the defence. This would go to show that during 2008 while the victim was subjected to rape by her step grandfather/accused, she was 12 years old only and a minor. It was an age during which the victim was to have enjoyed the innocence and beauty of life without facing any worldly problems. Instead at the tender age of 12 years old, the victim was made to undergo physical and mental trauma. Presently, she is pursuing her studies and physically she has been found to be fit by the doctor. However, the mental and pshycological injuries that has been caused upon her cannot be wiped off and her innocence cannot be returned back to her. Such was the trauma that was presented to her by her step grandfather. Another aspect which cannot be ignored by this Court is the fact that the victim was administered Quinine by the accused who is the step grandfather without any medical prescription. Administering Quinine to the victim at such an age without any reason is just not imaginable. 15. In the appeal from jail filed by the accused, he has admitted his guilt citing that he was under the influence of alcohol when the said offence was committed. His appeal is confined for reduction of the sentence on the ground that he is the sole bread earner of his family who are living in Nepal. This Court has considered the application made by the accused. It appears that it is only in 2013 that he has remembered that he has a wife and children at Nepal. Since 1999, he had never bothered about his wife and children at Nepal. This Court has considered the application made by the accused. It appears that it is only in 2013 that he has remembered that he has a wife and children at Nepal. Since 1999, he had never bothered about his wife and children at Nepal. The ground taken by the accused in his appeal petition is not acceptable before this Court. 16. The prosecution has built up a strong case, the prosecution witness has corroborated each other leaving no room for any iota of doubt. On the other hand, the defence has miserably failed to demolish the case of the prosecution. Under the circumstances, this Court does not see any reason to interfere with the judgment and order dated 28.8.2012 passed by the learned Addl. District and Sessions Judge-IV, Aizawl Judicial District, Aizawl in SR No. 7/2010. Accordingly, there is no merit in this appeal and the same is accordingly dismissed. 17. Send down the LCR forthwith along with a copy of this judgment. 18. In appreciation of the services rendered by Mr. L.H. Lianhrima, learned Amicus Curiae, this Court is of the opinion that he is entitled to a hearing fee of Rs. 5000/- (Rupees five thousand), which shall be borne by the Mizoram State Legal Services Authority on production of a certified true copy of the judgment and order of this Court. The Registry is directed to supply a certified true copy of the judgment and order of this Court to the learned Amicus Curiae free of cost. 19. This criminal appeal stands disposed of. Appeal dismissed.