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2015 DIGILAW 1050 (GAU)

Laldawngliana v. State of Mizoram

2015-08-18

MANOJIT BHUYAN

body2015
Manojit Bhuyan, J.:-- In this criminal appeal challenge is made to the judgment and order dated 21.2.2013 and to the order of sentence dated 26.2.2013 passed by the learned Addl. District and Sessions Judge-IV in Crl. Tr. No.2594/2009 under section 376(1) of the Indian Penal Code by which the appellant has been sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs. 10,000, in default, to further undergo simple imprisonment for 2 months. In terms of section 428 Cr.P.C. the detention period already undergone by the appellant during investigation and trial was also ordered to be set-off from the sentence. 2. The facts as unfolding is that on 22.11.2009 at around 7:30 p.m. the appellant had visited the house of the victim/prosecutrix and had asked her to accompany him to visit a bereaved family at Vengchhak, Serhmun. The victim was riding pillion on the appellant's motorcycle and instead of taking the turn towards the destination, the appellant continued to ride towards a place called Vengthar. When the victim/prosecutrix started shouting the appellant stopped at a distance of about 30 meters from the last house of Vengthar locality. Both of them sat down on the middle of the road for sometime. Things turned round when the appellant lied on top of the prosecutrix and despite resistance offered, the appellant over-powered her. Although the prosecutrix did not shout for help but she had called out for her mother and also started crying. Sexual intercourse followed and thereafter the prosecutrix went to the nearest house from where she called up her mother by telephone. The house where the prosecutrix took shelter was the house of one Moli, also known as Tuikhumu. After some time she was taken to her aunt's house from where her paternal uncle came and took her back home. 3. On 24.11.2009 the father of the prosecutrix, i.e., Lalkhawnghinga lodged First Information Report before the Officer-in-charge, Kawrthah Police Station alleging that his daughter had been raped by the appellant, i.e., Laldawngliana. On the basis of the said first information, a case was registered being Kawrthah P.S. Case No.10/2009 dated 24.11.2009 under section 376(1) of the IPC. 4. On 23.11.2009, the day prior to lodging of the First Information, medical examination of the victim/prosecutrix was conducted, the findings of which will be attended to in the later part of this judgment. 5. On the basis of the said first information, a case was registered being Kawrthah P.S. Case No.10/2009 dated 24.11.2009 under section 376(1) of the IPC. 4. On 23.11.2009, the day prior to lodging of the First Information, medical examination of the victim/prosecutrix was conducted, the findings of which will be attended to in the later part of this judgment. 5. Upon due investigation of the case, charge under section 376(1), IPC was framed and consequent thereto trial commenced. 6. As many as 8 witnesses were examined by the prosecution side and from the defense side no evidence was adduced. The informant being the father, deposed as PW 1, and according to him, his daughter was born on 24.1.1991. With regard to the incident his statement is that his daughter did not return home by 8:30 and 9:00 pm on the date of the incident, as a result of which they were worried. However, they received a phone call from their daughter informing that a stranger who had come to their house had sexual intercourse with her forcefully and that while she was narrating the incident she was sobbing. 7. PW 2 is Moli of Serhmun Village at whose house the victim had first taken shelter. According to the said witness the victim entered her house crying and did not say anything. Later on the uncle of the girl had come over to take her back to her house. Her deposition also reveals the fact that she heard the sound of a bike with somebody screaming "no I do not want take me back". 8. The deposition of PW 6, being the Officer-in-charge of Kawrthah Police Station who endorsed the case to himself for investigation, stated that the appellant/accused had confessed his guilt during interrogation and having found a prima facie case against the accused, he had submitted charge sheet although he did not make any seizure. On cross, the statement made is that the victim had told him that earlier she had sexual intercourse once. 9. The statement/deposition of the prosecutrix as PW-7 assumes importance. While detailing the incident, it was stated that she was medically examined on the night of 23.11.2009 but before such medical examination she had washed herself. On cross she deposed that she was acquainted with the accused appellant from a long time. 9. The statement/deposition of the prosecutrix as PW-7 assumes importance. While detailing the incident, it was stated that she was medically examined on the night of 23.11.2009 but before such medical examination she had washed herself. On cross she deposed that she was acquainted with the accused appellant from a long time. A statement is also made to the effect that in the year 2008 she had sexual intercourse on two occasions with her boy-friend who used to reside below their residence. However, in the middle of the year 2009 she had severed relationship with her boy-friend. On cross, she also deposed that she did not put any resistance when the accused lied on top of her and that she did not sustain any injury on her private parts. While stating that she did not voluntarily accompany the accused or had consented to have sexual intercourse, it was also stated that she did not experience any pain after the sexual intercourse. 10. According to the deposition of the Medical Officer, PW-8, he did not find any mark of violence upon examination of the genital area and further that she was also not a virgin. The Medical Officer testified to the extent that vaginal swab for laboratory examination had been taken although he was not aware of the result of the laboratory test. On cross, it is stated that the age of the rupture of the hymen cannot be ascertained and further that the tear of the hymen was an old tear. Statement has also been made to the effect that the report of the laboratory test was shown to him on the date of deposition and the report indicated a negative result. 11. Insofar as the medical examination (Ext. P-2) and laboratory test are concerned, it reveals that at the time of examination she was physically and mentally stable and there were no sign of influence of alcohol or drugs and no mark of violence on the body. On genital examination no adverse finding was made. In fact, the medical report indicates the absence of bruise or laceration of the external genitalia, although the hymen was not intact. In this connection reference is also made to the laboratory test, which is a document available in the records, which indicates that upon examination of the specimen of vaginal smear, no sperm was seen. 12. In fact, the medical report indicates the absence of bruise or laceration of the external genitalia, although the hymen was not intact. In this connection reference is also made to the laboratory test, which is a document available in the records, which indicates that upon examination of the specimen of vaginal smear, no sperm was seen. 12. Based on the above, the learned counsel representing the appellant submits that having regard to the testimony of the prosecution witnesses and the medical evidence, the impugned conviction and sentence is wholly illegal and liable to be set aside. To this end, learned counsel for the appellant relies upon the case of Dilip and Another v. State of M.P., (2001) 9 SCC 452 . 13. The learned Public Prosecutor, on the other hand submits that the judgment under challenge do not suffer from any infirmity and as such is not liable to be interfered with. It is contended that the statements of the prosecutrix is dully corroborated by the deposition of the witnesses, primarily that of PW2. According to him, the testimony of the prosecution witnesses, primarily that of the prosecutrix herself and PW2, the same demonstrate that resistance was offered and the act itself was not consensual. In the other words, it is contended that voluntary consent cannot be attributed on the part of the prosecutrix. Also, that by the very admission of the appellant, sexual intercourse had taken place. 14. The examination of the appellant under section 313, Cr.PC was recorded on 1.8.2012. The answer to question No.4 indicates that sexual intercourse occurred upon consent of the prosecutrix herself and she did not put up any struggle or resistance. In this connection learned Public Prosecutor submits that the expression "consent" has to be read as not a voluntary consent having regard to the deposition made by the prosecutrix herself and the PW-2 in their testimony. Insofar as the answer to question No.8 is concerned, the appellant has stated that he has been falsely implicated of having raped the prosecutrix. Further, although there was sexual intercourse with her consent, he has been accused of having raped her as her family found that they did not attend the condolence service and in the meantime her family had started looking for her. 15. I have heard the learned counsels for the parties and have also perused the available records. Further, although there was sexual intercourse with her consent, he has been accused of having raped her as her family found that they did not attend the condolence service and in the meantime her family had started looking for her. 15. I have heard the learned counsels for the parties and have also perused the available records. There is no denying the fact that the prosecution case rests on the testimony of the prosecutrix. Although it is a settled position in law that conviction for an offence of rape can be based on the sole testimony of the prosecutrix, however, if for some reason the court finds it difficult to place implicit reliance upon such testimony, it may look for evidence which may lend support to her testimony and to that end, corroboration can be had from the medical evidence. In the instant case, the testimony of the prosecutrix shows that at the time when the appellant had lied on top of her she had offered resistance, which however was of not much help as the appellant had physically overpowered her. Also it is indicated that although she did not shout for help, however she had called out for her mother and started crying. Contradiction crept in at the time of cross-examination when the prosecutrix deposed that she did not put up any resistance when the accused appellant lied on top of her. A statement has also been made to the extent that she did not sustain injury on her private parts and she did not feel any pain after the sexual intercourse. To lend credence to the testimony that she had offered, resistance, as deposed in the examination-in-chief, reliance and/or corroboration has to be made from the report of the medical examination, which is Ext. P-2. A close perusal of the report do not expressly or implicitly record any mark of violence inflicted on the body of the prosecutrix. No bruise or laceration of the external genitalia has also been found nor any sign of infection at the time of examination. 16. Rape as defined under section 375 of the Indian Penal Code means any action under (a), (b), (c) and (d) thereof committed against the will of the victim and without her consent as Firstly and Secondly. The descriptions under Thirdly to Seventhly of section 375, IPC is not attracted in the present case. 16. Rape as defined under section 375 of the Indian Penal Code means any action under (a), (b), (c) and (d) thereof committed against the will of the victim and without her consent as Firstly and Secondly. The descriptions under Thirdly to Seventhly of section 375, IPC is not attracted in the present case. As such, the adjudication of this, case stands confined to the first and second description under section 375. As afore stated, although the first two descriptions can be had from the testimony of the prosecutrix in the examination-in-chief, her version takes a contradictory shape in her cross-examination, as indicated above. Any action of resistance or an action taken against the will and consent is bound to reflect in a medical examination, which is wholly absent in the present case. 17. On an entire consideration of the facts of the case, this court finds it difficult to accept the truthfulness of the version of the prosecutrix. In other words, the prosecution has failed to establish the offence of rape on the part of the appellant beyond all reasonable doubt. The facts above clearly entitle a benefit of doubt in favour of the appellant. 18. For the foregoing reasons this appeal stands allowed and the conviction of the appellant as recorded by the learned trial court in Crl. Tr. No.2594/2009 under section 376(1), IPC is set aside. The appellant is acquitted of the charges framed against him. 19. It is stated at the bar that as on date the appellant is not under incarceration in view of the order dated 11.4.2013 passed in Crl. Misc. Application No.7/2013, arising out of the present appeal. Registry is to send back the records to the court below.