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2015 DIGILAW 1171 (GAU)

Rorelliana v. State of Mizoram

2015-09-10

MICHAEL ZOTHANKHUMA

body2015
JUDGMENT : Michael Zothankhuma, J. Heard Mr. Joseph L. Renthlei, counsel for the appellant's. Also heard Mrs. Linda L.Fambawl, Additional Public Prosecutor. 2. The appellant's counsel submits that the Judgment dated 20.3.2015 passed in Session Case No.86 of 2013 by the Court of the Additional Sessions Judge, Aizawl Judicial District, Aizawl wherein the appellant was convicted and sentenced to under Rigorous Imprisonment for 10 years and to pay a fine of Rs. 5,000/- in default of fine, Simple imprisonment for another 2 (two) months under Section 376 (2)(f) of IPC should be set aside. 3. The counsel for the appellant submits that "the brief facts of the prosecution story is that on 19.5.13 a written F.I.R. was received from Lalhmunengi of Khawrihnim to the effect that on that day at around 10-11:00 Am, the accused had committed rape upon her daughter (in short the "victim"), who was aged about 11 years old. Hence, Kulikawn Police Station Case No.60 of 2013 dated 19.5.2013 was registered against the accused under Sections 376(2)(f) and 376(f)(i) of IPC. In the course of investigation, the complainant and the victim were examined, and their statements were recorded. In the statement of the victim, on 19.5.2013 (Sunday) she did not attend church service with her friend Dini since they were late, and on the way met the accused (who was her uncle) at Smt. Dengi's grocery shop who invited them to watch T.V. in his house. Both the victim and her friend then followed the accused to his house. The accused asked the victim's friend Dini to buy lawngpar. As soon as Dini left them, the accused pulled the victim into the bed room and sexually assaulted her on the bed after undressing her. After the incident, the victim left the accused crying ad proceeded towards her friend Dini and informed her about the incident. The victim further stated that before leaving him, the accused stated, "Na ila ti sia, I puitlin hunah kan ti leh dawn nia" (since you feel pain, we will do it again when you grow older). The victim also stated that the accused had touched and poked her private parts two or three times in the past. The victim was medically examined and the medical report revealed that her hymen was absent, forefinger admitted and discharge was present. The victim also stated that the accused had touched and poked her private parts two or three times in the past. The victim was medically examined and the medical report revealed that her hymen was absent, forefinger admitted and discharge was present. A copy of the birth certificate of the victim made from the original was seized to prove the age of the victim. The statements of the witness Laldinpuii and the seizure witnesses were also recorded. The accused was arrested on 19.5.2013 and interrogated. The accused admitted his guilt stating that he had gently penetrated his penis into the victim's vagina, but as the victim felt pain he released her. Since, the statement of the accused was corroborated by the statement of the victim and the other documents collected by her, the accused was forwarded to judicial custody. Hence, S.I. Lalhmachhuani Sailo found a prima facie case against the accused under Section 376 (2) (f) and 376 (2) (i) of IPC and submitted charge sheet to the Court of the learned Chief Judicial Magistrate, Aizawl. 4. The appellant's counsel submits that deposition of the prosecutrix in the examination in chief and the cross examination is contradictory inasmuch as while the prosecutrix has stated that the appellant has inserted his penis into her private parts, in the cross examination, the prosecutrix has stated that she could not say whether the accused had inserted his penis into her private parts since she was scared to look, but it was burning inside and it was very painful. 5. The appellant's counsel has also submitted that while the prosecutrix had been examined by a Doctor on the same day of the alleged incident, the prosecutrix in her examination in chief has stated that she could not remember the exact date of examination. The appellant's counsel thus submits that, in view of the contradictory stand taken by the prosecutrix, the statement of the prosecutrix could not be relied upon and as such, she was not a reliable witness. In support of the above contention, the counsel for the appellant had relied upon the Apex Court Judgment in Rai Sandeep v. State (NCT of Delhi) reported in 2012 8 SCC 21 which states at para 22. In support of the above contention, the counsel for the appellant had relied upon the Apex Court Judgment in Rai Sandeep v. State (NCT of Delhi) reported in 2012 8 SCC 21 which states at para 22. "To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it." 6. The appellant's counsel has also submitted that the prosecutrix in her statement had stated that she struggled a lot. However, the medical examination report of the victim does not say anything regarding signs of injury on the body of the prosecutrix or on her private parts. He thus submits that this goes to prove that there was no penetration by the appellant. The appellant's counsel has in support of the above argument relied upon the Judgment of Apex Court in O.M. Baby (Dead) by Legal representative v. State of Kerala reported in 2012 11 SCC 362 , which at para 15 states as follows :- "15. Insofar as the absence of injuries on the body of the victim is concerned, the evidence on record discloses that in the first medical examination itself i.e. Ext. P-1 it is recorded that the victim was walking in pain. The evidence of PW 11, Dr Shirly Vasu, Assistant Professor of Forensic Medicine, who had examined the victim for determination of her age, clearly shows that circumareolar bite mark contusion of both breasts was noted along with laceration of lower lip. In these circumstances, it cannot be said that in the present case, the prosecution has not succeeded in showing that the victim had not suffered any external injuries whatsoever. In these circumstances, it cannot be said that in the present case, the prosecution has not succeeded in showing that the victim had not suffered any external injuries whatsoever. In any event, absence of injuries or mark of violence on the person of the prosecutrix may not be decisive, particularly, in a situation where the victim did not offer any resistance on account of threat or fear meted out of her as in the present case. Such a view has already been expressed by this Court in Gurcharan Singh v. State of Haryana andDevinder Singh v. State of H.P." 7. The appellant's counsel has also cited para 20 of Nasib Hussain (MD) v. State of Assam & Others reported in 2015 3 GLT 89, which states as follows :- "20. Another vital aspect escapes the notice of the learned Court that as per the medical report, there is no sign of sexual intercourse, though the victim was examined immediately on the next date of occurrence which has negate the whole accusation of rape. Had there been forceful sexual conduct upon the victim, there must be sign of injury on the private part of the victim, and other marks suggestive of sexual intercourse. Nothing such is reflected from the medical report, which again support the statement of the victim girl under section 164 of the Cr.P.C. that accused committed no rape upon her, on their protest. Where is the scope to hold the accused guilty for the offence of rape? As has been discussed above, it is highly unsafe to rely upon the testimony of the victim given during trial, which is materially contradictory to that of previous statement given under section 164 Cr.P.C. Further, these victims never told before other witnesses who apprehended them about why act of rape upon them, by the accused and simply told that accused took them from the road. The cumulative effects of all evidence on record is that prosecution case remain doubtful from all aspects." 8. The appellant's counsel has also submitted that findings No.7 of the medical examination report of the victim states that "3 slides taken from in side the vagina for presence of sperm plus underwear sent for laboratory examination. The cumulative effects of all evidence on record is that prosecution case remain doubtful from all aspects." 8. The appellant's counsel has also submitted that findings No.7 of the medical examination report of the victim states that "3 slides taken from in side the vagina for presence of sperm plus underwear sent for laboratory examination. The appellant's counsel submits that the Trial Court had passed the impugned Judgment dated 20.3.2015 without waiting for the laboratory report as the prosecution were unable to produce the said laboratory report in pursuance to the findings No.7 of the medical examination report of the victim. 9. The appellant's counsel submits that the failure of the prosecution to make any statement regarding the out come of the laboratory report and the failure of the prosecution to produce the said report before the learned Trial Court leads to an adverse interference under Section 114 (g) of The India Evidence Act, 1872 against the prosecution and in favour of the appellant. The appellant's counsel in support of above contention has relied upon the Judgment of the Apex Court in Mussauddin Ahmed v. State of Assam reported in 2009 14 SCC 541 , which at para 11 states as follows :- "11. It is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such material evidence is withheld, the court may draw adverse inference under Section 114 Illustration (g) of the Evidence Act, 1872 notwithstanding that the onus of proff did not lie on such party and it was not called upon to produce the said evidence." He has also relied upon the Judgment of this Order passed in Criminal Appeal No. 14 of 2014 (J) "Sh. K. Sangkhuma v. State of Mizoram which at para 21 states as follows :- 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. 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. 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. 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 glans and prepuce and his underwear were sent for laboratory examination and the report was not made available to the Court. Since finding at Sl. 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 glans, 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." 10. The appellant's counsel submits that due to the reasons mentioned above, the Judgment dated 20.3.2015 passed in Session Case No.86 of 2013 should be set aside and the appellant should be acquitted. 11. Mrs. Linda L. Fambawl, Addl. Public Prosecutor submits that there no infirmity in the impugned Judgment dated 20.3.2015 and the rape of the victim girl by the appellant has been proved by the witnesses. She submits that the evidence of PW No.3 corroborates the statement of the prosecutrix (PW No.2). 12. The Addl. 11. Mrs. Linda L. Fambawl, Addl. Public Prosecutor submits that there no infirmity in the impugned Judgment dated 20.3.2015 and the rape of the victim girl by the appellant has been proved by the witnesses. She submits that the evidence of PW No.3 corroborates the statement of the prosecutrix (PW No.2). 12. The Addl. Public Prosecutor submits that the evidence of the prosecutrix has been corroborated by the evidence of the PW.3 in her examination in chief where she has stated as follows : "I looked inside the house through the window and I saw the accused lead the victim to their bedroom. I was a bit worried for my friend but decided not to think too much and went to Pi Dengi's shop. I purchased the cloves and was going to return to the house of the accused when I saw my friend/victim crying on the way. She told me that the accused had forcefully got on top of her on the bed. She was crying a lot and so I suggested that we should report the matter to her mother. She told her mother what the accused had done to her but I was not present at that time since I went to another room while she reported the matter to her mother." 13. The Addl. Public Prosecutor submits that the failure of the prosecution to produce laboratory report cannot be held against the prosecution and it cannot be presumed that the non production of the same was not favourable to the prosecution. The Addl. Public Prosecutor submits that the conviction of the petitioner can be done even in the absence of the laboratory report. The Addl. Public Prosecutor has relied upon the Judgment of the Apex Court in State of Uttar Pradesh v. Munesh reported in 2012 (9) SCC 749 which at para 22 & 25 states as follows :- "22. Mr. Mani has pointed out that in the absence of the report of Sperm Detection Test, the conclusion regarding rape cannot be accepted. It is true that PW 4 has stated that the slide containing sperms which had been sent for examination has not returned so far along with the examination report. Mr. Mani has pointed out that in the absence of the report of Sperm Detection Test, the conclusion regarding rape cannot be accepted. It is true that PW 4 has stated that the slide containing sperms which had been sent for examination has not returned so far along with the examination report. In the absence of such a report, the case of the prosecution cannot be doubted about rape, particularly, in the light of categorical findings of the doctor that the hymen was found to have been ruptured. The other prosecution witnesses have also stated about injury on her private parts and oozing of blood. The medical evidence proved that the victim was raped before her death and she died on 5.3.2002. In other words, the prosecution story is fully corroborated with the medical evidence on record and, unfortunately, the High Court failed to give importance to the said evidence. 25. The primary concern both at national and international level is about the devastating increase in rape cases and cases relating to crime against women in the world. India is no exception to it. Although the statutory provisions provide strict penal action against such offenders, it is for the courts to ultimately decide whether such incident has occurred or not. The courts should be more cautious in appreciating the evidence and the accused should not be left scot-free merely in flimsy grounds. In the instant case, the accused had committed rape, which repels against the moral conscience as he chose a girl of 11 years to satisfy his lust and subsequently murdered her." The Addl. Public Prosecutor has also relied upon the Judgment of the Apex Court in Narender Kumar v. State (NCT of Delhi) reported in 2012 7SCC 171 which at para 20 states as follows :- "20. It is a settled legal proposition that once the statement of the prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case." 14. I have heard the learned counsels for the parties. 15. I have also noticed that the Doctor has not been examined by the Trial Court. The question of the importance of laboratory report in the present case is only with regard to whether there is the presence of sperm inside the vagina of the prosecutrix. However, the absence of sperm does not mean that there was no penetration. 16. On going through the materials on records, I find that the Apex Court has held that in the absence of a laboratory report, the case of the prosecution cannot be doubted about rape, particularly in the light of categorical findings of the Doctor that the hymen was found to have been ruptured. It has been held by the Apex Court in Narender Kumar (supra) that conviction can be based solely on the evidence of the prosecutrix if it inspires confidence. However, the Doctor's evidence has not been recorded by the Trial Court. As a matter of prudence and caution, the Trial Court should have also examined the Doctor. Accordingly, the matter is remanded back to the learned Trial Court to record the evidence of the Doctor concerned. Thereafter, the Trial Court may examine the accused further under Section 313 of Cr.P.C and pass necessary Orders as per law. The learned Trial Court shall dispose of the case as expeditiously as possible and preferably within a period of 4 (four) months from the date of receipt of the LCR. Accordingly, the Judgment & Order dated 20.3.2015 is set aside. 17. The LCR be returned back to the learned Trial Court.