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Gauhati High Court · body

2014 DIGILAW 79 (GAU)

Ramchhanthanga v. State of Mizoram

2014-01-21

L.S.JAMIR

body2014
JUDGMENT : Heard Mr. R. Lalhmingmawia, learned Amicus Curiae appearing for the appellant as well as Mr. Lalsawirema, learned Additional Public Prosecutor, Mizoram. 2. This jail appeal is directed against the judgment and order dated 5.3.2012 passed by the learned Addl. District & Sessions Judge-IV, Aizawl judicial district, Aizawl in S.R. No. 97/10 in Criminal Trial No. 37/2010 under Section 376(1), IPC whereby the accused Ramchhanthanga was convicted under S. 376(1), ICP and sentenced to undergo Rigorous Imprisonment for a period of 7 (seven) years and to pay fine of Rs. 5000/-, in default to undergo S.I. for a period of 30 (thirty) days. 3. The case of the prosecution is that on 16.2.2010, an FIR was lodged by PC Laldingliana who is the father of the victim stating that on 14.2.2010 (Sunday) at around 1-3 p.m., Ramchhanthanga, S/o (P-1) of Khawhai (N) gave liquor to his daughter and her friends to the extent that made her unconscious. He then raped her at Government Primary School-IV, Khawhai. He found his daughter naked in an unconscious condition and piggyback her home. She regained consciousness at around 11 p.m. only. He, therefore, requested to take strict legal action on the person who raped his daughter while she was unconscious. Basing on the information, Khawhai P.S. Case No. 7/2010 was registered on 16.2.2010 under Section 376, IPC. After completion of investigation, a charge-sheet was submitted against the accused under Section 376(1), IPC. Charge under Section 376(1), IPC was framed against the accused and on pleading not guilty, trial proceeded. During the course of trial, the prosecution examined 10 witnesses and the accused was also examined under Section 313, Cr. P.C. 4. PW 1 is the father of the victim and also the informant. In his examination-in-chief, he stated that on 14.2.2010 at around 4.30 p.m. he came to know from his neighbours that his daughter (victim) was lying intoxicated at Government Primary School-IV unconscious and the accused had raped her. He was shocked by the news and felt pain and angry and approached the school and on his way he also heard the words of the accused that he had already slept with the victim. He entered the house of Bawichhunga where the victim was sleeping in the chair unconscious. He was shocked by the news and felt pain and angry and approached the school and on his way he also heard the words of the accused that he had already slept with the victim. He entered the house of Bawichhunga where the victim was sleeping in the chair unconscious. She had been clothed by her friend and he carried her behind him and she regained her consciousness at around 11 p.m. The accused in spite of asking for forgiveness, was angry and claimed himself of supporting her. He was very angry and felt pain for the wrongful act of the accused and he submitted FIR at Khawhai P.S. He identified Exhibit P-1 as the complaint submitted by him and Exhibit P-1(A) as his signature. In his cross-examination, he stated that he had not seen the act of having sexual intercourse with the victim. There are some other houses near the school and there was no cry from the alleged victim and there were so many people around the place of occurrence looking at the incident as an inviting sight. He also stated that what he knew was derived from some other persons. In re-examination by the prosecution he stated that, as far as he knew, there were no persons who were peeping at the act and the alleged victim was unconscious after taking 1 (one) glass of country made liquor and that what is recorded in the cross-examination are partly false. 5. PW 2 is the prosecutrix/victim. She stated that she was born on 2.9.1992 and read upto class IX and failed class X. Presently, she was reading in class VIII (Hindi). On 14.2.2010, on the afternoon, her friends Rempuia, Hmangaihzuala, Zomuana came and invited her to drink country made liquor. She does not drink, however, that day she wanted to taste it. So, she told them that she also want to drink and then her 3 (three) friends led her towards the accused house and she waited at some distance and one of her friends, Zomuana brought the local made liquor and they went towards the Primary School and they entered in the class II room and started drinking. They all took 1 (one) cup each and as soon as she drank 1 (one) cup, she felt drowsy and was unconscious. They all took 1 (one) cup each and as soon as she drank 1 (one) cup, she felt drowsy and was unconscious. When she regained consciousness, she was at home and it was around 11 p.m. She had no idea what her friends and the accused plotted for the wrongful and scandalous incident. She was very angry upon the accused and her 3 (three) friends. She told the whole story to the I.O., complainant as well as her parents and also to the medical officer who examined her. In her cross-examination, she stated that she knew that they have forgiven the accused and have submitted the report to the Court. She did not cry for help at the place of occurrence as she lost her consciousness after a single cup of liquor and she does not know anything thereafter. She also did not see the accused before she was unconscious. She was born on 2.9.1992 and there was nobody when they had the liquor. She also denied that she has been in love with the accused. 6. PW 3 stated that the accused is his uncle. On 13.2.2010, their club members went to the jungle and collected firewood. On the way, he met the accused and he requested them to visit him. After collection of firewood, he and his friend Hmangaihzuala visited the accused at the place where he was manufacturing the country made liquor. They drank some cups which were given to them and the accused told them to search a lady to intoxicate by liquor and after the lady was intoxicated, he told them to tell him. They replied in the affirmative. The next day, i.e., 14.2.2010, he met one of his friends, Rempuia and then they met another friend Hmangaihzuala and they searched for lady with whom to drink. They requested Te-i and Vanneihmawii but they refused. After some time, they requested the victim and invited her and she told them that she would like to drink with them without others noticing them. In the afternoon, she went with them and he took the liquor from the house of the accused and then they went inside the Primary School in class II room and started drinking. After some time, they requested the victim and invited her and she told them that she would like to drink with them without others noticing them. In the afternoon, she went with them and he took the liquor from the house of the accused and then they went inside the Primary School in class II room and started drinking. When he took the liquor from the accused, he was told by the accused to drink up the amounts which he gave him and also told him that he will give another portion of liquor, if the lady was not drunk. Soon after they had the liquor, his friends, the victim and Rempuia lost consciousness and his friend Hmangaihsangzuala went and called the accused. When the accused arrived, he led him and his friend Hmangaihsangzuala out from the room. When he went outside he saw other people standing in the school compound and his other friend took him to a different place and he took another cup of liquor and stated that he does not know other things. In cross-examination PW 3 denied that he was deposing falsely. 7. In cross-examination, PW 4 stated that on February, 2010, on a Saturday, the members of the subordinate club went for collection of firewood and on their way they met the accused who invited them to taste the liquor which he had made. After finishing the business, they went to the house of the accused and consumed liquor and the accused told them to look for a girl to drink liquor and he would provide the liquor and when she lost consciousness to call him. The next day, i.e., Sunday, after morning service was over, he and his friends Zomuana and Puitea invited some ladies to drink the liquor. However, they refused and on meeting the victim who consented to have liquor their friend Zomuana brought the liquor from the accused and the victim did not know their intention. They entered the Primary School IV class III room and started consuming the liquor. He was sent for vigilance at the door and while he was in the door, he realized that the accused told them to call him when the lady was losing consciousness. They entered the Primary School IV class III room and started consuming the liquor. He was sent for vigilance at the door and while he was in the door, he realized that the accused told them to call him when the lady was losing consciousness. He went and called the accused and in the house of the accused he found Jima and U Vch-a and the accused drinking liquor and they all came to the Primary School except one of them. When he joined his friends, he saw his friend Puitea and the victim had already lost consciousness. The accused instructed them to go outside from the room and he went outside and tried to peep from the next room but before he could peep his friend Zomuanpuia called him and he went to their house. In cross-examination, he stated that he was born in August, 1994 and his correct age in February that year (2010) was 15 (fifteen) years and 6 (six) months. 8. PW 5 stated that the accused is his uncle. On 13.2.2010, their club members went to the jungle to collect firewood. On the way he met the accused who requested them to visit him after they finished collecting firewood. He and his friend Hmangaihzuala visited the accused where he was making the country made liquor. They drank some cups which were given to them and the accused told them to search a lady to intoxicate by liquor and after the lady was intoxicated he told them to call him. The next day, i.e., 14.2.2010, he met 2 (two) friends and they invited him to drink liquor and he followed them. They took him to the house of the accused and they gave him some cups of liquor. The accused told him to look for a lady who can be intoxicated. Thereafter, they requested Te-i and Vanneihmawii but they refused. Then they requested the victim to drink with them which she agreed to do without others noticing them. In the afternoon, she came with them and he took the liquor from the house of the accused and they went inside the Primary School-IV class II and started drinking. He did not complete a single glass of liquor and he felt drowsy and lost consciousness. Before losing consciousness, he did not see the accused drinking with them. In the cross-examination, he denied that he was deposing falsely. He did not complete a single glass of liquor and he felt drowsy and lost consciousness. Before losing consciousness, he did not see the accused drinking with them. In the cross-examination, he denied that he was deposing falsely. 9. PW 6 stated that one Sunday afternoon, while he was drinking a cup of liquor at the residence of the accused, V. Cha and Jima also came. On his way back, he met one boy asking about the whereabouts of the accused and he told him that the accused was at home, he heard from the same boy that the prosecutrix/victim was lying in the Primary School-IV unconscious and he also went there to see. The accused and Jima along with the boy reached the school and they entered inside where they had a cup of liquor. Then, they all went out as instructed by the accused from the room. He peeped from the wall and he saw the accused squatting between the thigh of the prosecutrix/victim in a compromised position and he also heard the accused saying Numam do you know that your elder brother U Mathanga (accused) who is lying on top of you. His friend Lallianpuia came and they left the school. In cross-examination, he stated that both of them were not removing their wearing apparels. In re-examination by the prosecution, PW 6 stated that when he saw the accused and the prosecutrix, he saw the prosecutrix improperly dressed. 10. PW 7 stated that one Sunday after church service was over, he called his friend Lalropuia to visit him by phone but he told him that he was at Primary School-IV and asked him to come over as the accused was hanging inside the classroom. When he look through the window, he saw the accused and the prosecutrix lying on the floor and then he went away. In cross-examination, he stated that inside the school besides the said 2 (two) persons, there were some other persons but he could not see them properly as it was a bit dark. 11. PW 8 stated that one Sunday, afternoon, while he was having a cup of liquor with his friend Lalvenchhunga at the residence of the accused, one boy came and had conversation with the accused. As he was having a bike, the accused requested him to take him to the Primary School-IV where he took him. 11. PW 8 stated that one Sunday, afternoon, while he was having a cup of liquor with his friend Lalvenchhunga at the residence of the accused, one boy came and had conversation with the accused. As he was having a bike, the accused requested him to take him to the Primary School-IV where he took him. He and the accused entered the room from the window and inside he saw the prosecutrix lying unconscious. Her breast was also exposed and her underwear was also improper as her private part could be seen. Besides, one boy was also lying unconscious there. He went out from the room and only the accused was left with the prosecutrix and the unconscious boy. He again proceeded to the residence of the accused and continued his drink. When his friends asked him about his whereabouts, he told him that he saw one girl naked at Primary School-IV. In cross-examination, he stated that he did not see the act of raping the prosecutrix by the accused and also stated that he does not believe that the accused committed rape on the prosecutrix as she was badly drunk. 12. PW 9 stated that he cannot recollect the exact date but he knew that it was in the month of February, 2010. It was a Sunday afternoon when he saw the children looking towards Primary School-IV. He approached the school and entered inside the class III room and peeped from the wall. When he peeped he saw the accused committing sexual intercourse with the prosecutrix and he also heard the accused saying to the prosecutrix that the person who is committing sexual intercourse is U Mathanga (accused). As he heard other persons coming, he went away. In cross-examination, he stated that the age of the prosecutrix is not known to him but she was about 18 years old. The prosecutrix was also drunk and she did not cry for help. In his opinion, both of them were doing things as willing partner. He does not know whether the organ of accused had really entered into the vagina of the prosecutrix nor did he ask about these things to anybody. 13. PW 10 is the IO of the case. The prosecutrix was also drunk and she did not cry for help. In his opinion, both of them were doing things as willing partner. He does not know whether the organ of accused had really entered into the vagina of the prosecutrix nor did he ask about these things to anybody. 13. PW 10 is the IO of the case. He stated that on 16.2.2010 at around 11 a.m. a written report was submitted by the PW 1 to the effect that his daughter (victim) aged about 18 years was forcibly raped by the accused inside the class II room while she was under intoxication which was given to her by the accused through 3 (three) minor boys. Khawzawl P.S. Case No. 7/10 dated 16.2.2010 under Section 376, IPC was registered against the accused and the case was duly investigated. He was endorsed by the OC to investigate the case. He visited the place of occurrence during investigation and also examined all available witnesses including the complainant and recorded the statement. The accused was interrogated. Initially, he could not be interrogated as he was under the influence of liquor and was lying almost unconscious on the long chair at one house at Khawhai. He was arrested and taken to Khawzawl PS. The next morning when the influence of liquor was over, he stated that he had sexual intercourse with the victim while she was under the influence of liquor and he also admitted that he had sent the 3 (three) persons to bring liquor to give to the victim so that she could consume the liquor and get intoxicated and can have sexual intercourse with her. The victim was sent for examination to the M.O. PHC, Khawhai and the report received by him revealed that the hymen was ruptured and there was mild laceration on her labia minora (L) and also found violent marks i.e., bruises on her thighs. On careful investigation, he found the prima facie case established against the accused and submitted the charge-sheet. He identified Ext. P-2 as the charge-sheet and Ext. P-2(a) as his signature. In his cross-examination, he stated that what he knew were derived from other persons and personally he has not heard or seen any of the said incident. However, he asked the accused personally and he confessed. He also stated that the date of incident is 14.2.2010. He identified Ext. P-2 as the charge-sheet and Ext. P-2(a) as his signature. In his cross-examination, he stated that what he knew were derived from other persons and personally he has not heard or seen any of the said incident. However, he asked the accused personally and he confessed. He also stated that the date of incident is 14.2.2010. The accused was interrogated on 17.2.2010 and the victim was examined by the doctor on 15.2.2010 without escort of the police and the victim had already taken bath and changed her wearing apparels. 14. PW 10(A) is the Medical Officer. He stated that on 15.2.2010 at around 10 a.m. one alleged raped victim aged about 18 years was brought to Khawhai PHC for medical examination. According to her, she had already taken bath and changed her clothes after the incident. She was physically and mentally healthy. There was bruise marks on both inner thighs but there was no seminal stain. On examination of her genital area, he found that there was mild laceration on the labia minora (L). Her hymen was ruptured and vaginal smear was taken for laboratory report. He identified Ext. P-3 as the medical report conducted by him and Ext. P-3(a) as his signature. In cross-examination, he stated that the victim was alleged to have been raped on 14.2.2010. He does not know what caused the bruise marks in the inner thighs of the victim. The hymen ruptured can be caused by using some other substances and the rupture of the hymen was not recent. There was no seminal stain visible on the vagina and he has not examined the male accused. 15. The findings of the medical examination report of the victim is reproduced herein below :- FINDINGS : 1. Physical & Mental Health : Conscious, Oriented 2. Influence of Alcohol or Drugs at the time of Examination : No. 3. Seminal stains or other stain on clothes:------------- NIL 4. Marks of Violence on the body : Bruise on both inner thighs 5. GENITAL EXAMINATION : a) Pubic Hair :-------------- b) Seminal Stain : NIL c) Bruising/Laceration of external genitalia : Mild laceration on labia Minora (L) d) Hymen : Rupture 6. Signs of infection (Discharge or colour etc.) with duration : NIL 7. Laboratory report smear/discharge/Stains : Vaginal smear taken. 8. X-Ray report for age determination (when age cannot be ascertained by Medical Officer) --------NIL. 16. Signs of infection (Discharge or colour etc.) with duration : NIL 7. Laboratory report smear/discharge/Stains : Vaginal smear taken. 8. X-Ray report for age determination (when age cannot be ascertained by Medical Officer) --------NIL. 16. The accused was also examined under Section 313 Cr. P.C. where he denied the allegations made by the prosecution. In the examination of the accused under Section 313 Cr. P.C., he also stated that he was very drunk and he tried to perform sexual intercourse but as he was very drunk he could not do anything. 17. I have considered the submissions made by the learned Amicus Curiae as well as learned Additional Public Prosecutor, Mizoram. 18. From a consideration of the deposition of the PWs it is seen that the accused had already planned to rape the victim one day ahead. With that intention, he had lured the PWs 3, 4 and 5 by giving them liquor and also instructed them to led the victim drink liquor and make her intoxicated with the intention of raping her. The intention of the accused is clearly borne out by the deposition of PWs 3, 4 and 5. A minute consideration of the deposition of PWs 3, 4 and 5 would show that there is corroboration in their statements and this Court does not find any reason to doubt the veracity of the statements made by the aforesaid PWs. The defence has also not been able to demolish the depositions made by the PWs 3, 4 and 5. 19. The depositions of PWs 6, 7, 8 and 9 also supports the deposition made by the PWs 3, 4 and 5 that the accused had committed rape upon the victim. The damaging depositions made, more particularly by PW 6 and PW 9 clearly shows that the accused had raped the victim/prosecutrix. This has not been demolished by the defence. 20. PW 1 is the father of the victim. PWs 3 to 9 are all independent witnesses. Considering the statements of the PWs this Court is of the opinion that the prosecution has made out a very strong case against the accused. PW 10 who is the IO had also deposed that the accused had confessed to the offence. 20. PW 1 is the father of the victim. PWs 3 to 9 are all independent witnesses. Considering the statements of the PWs this Court is of the opinion that the prosecution has made out a very strong case against the accused. PW 10 who is the IO had also deposed that the accused had confessed to the offence. From a consideration of the statements of the PWs, some of whom were eye-witnesses and also the Medical Report, this Court has no hesitation to come to the conclusion that the accused had committed rape upon the victim/prosecutrix when she was intoxicated by liquor administered to her by the accused through the 3 (three) PWs, namely, PWs 3, 4 and 5. 21. In his appeal, the accused has admitted to have committed the offence and has prayed for reduction of the sentence on the ground that his wife has re-married and that there is no one to look after his children. Certificates issued by the PW 1, President, Village Council/Court, Khawhai, Secretary Branch M.H.I.P., Khawhai, President, Young Mizo Association, Khawhai Branch stating that the accused has been forgiven by the father has also been enclosed. However, this Court is of the opinion that such certificates showing that the father has forgiven the accused is of no consequence in a criminal case. 22. In the facts and circumstances of the case, this Court finds no reason to interfere with the judgment and order dated 5.3.2012 passed by the Addl. District & Sessions Judge-IV, Aizawl district, Aizawl sentencing the accused to undergo R.I. for a period of 7 (seven) years and to pay fine of Rs. 5000/- (rupees five thousand) and in default to undergo S.I. for a period of 30 (thirty) days. 23. There is no merit in the appeal and the same is accordingly dismissed. 24. Send down the LCRs forthwith along with a certified true copy of the judgment and order. 25. In appreciation of the services rendered by Mr. R. Lalhmingmawia, learned Amicus Curiae, he is entitled to hearing fees of Rs. 5000/- (rupees five thousand) which shall be borne by the Mizoram State Legal Services Authority on production of the certified true copy of the judgment and order by the Amicus Curiae. The Registry of this Court shall supply a certified true copy of the judgment and order of this Court to the Amicus Curiae free of cost. 5000/- (rupees five thousand) which shall be borne by the Mizoram State Legal Services Authority on production of the certified true copy of the judgment and order by the Amicus Curiae. The Registry of this Court shall supply a certified true copy of the judgment and order of this Court to the Amicus Curiae free of cost. Appeal dismissed.