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2015 DIGILAW 119 (GAU)

Sh. Lalmalsawma v. State of Mizoram

2015-02-04

T.VAIPHEI

body2015
JUDGMENT : In this criminal appeal, this Court is called upon to examine the legality of the judgment dated 7.10.2013 passed by the learned Sessions Judge, Lunglei Judicial District, Lunglei in Crl. Trl. No. 85/2012 convicting the appellant under Section 376(1), IPC and sentencing him to undergo a rigorous imprisonment (RI) of 5 years with a fine of Rs. 1000/- and, in default thereof, to undergo a simple imprisonment (SI) of 1 month. 2. The case of the prosecution, briefly stated, is that on 4.4.2012, an FIR was lodged by one Margaret Lalramsiami of Chanmari Kanaan Veng, Lawngtlai stating that on the night of 3.4.2012 between 11:00 p.m. and 12:00 midnight, Cathy Lalramdinpuii (the victim) was taken out by one Lalmalsawma of Chanmari Kanaan Veng at College Hill, and was suspected to have been raped by him. Incidentally, the victim is deaf and dumb. On the basis of the FIR so lodged, Lawngtlai PS Case No. 33/2012 was registered under Section 376(1), IPC and was investigated into by the Lawngtlai Police Station. In the course of investigation, the complainant as well as the victim was examined and their statements recorded. The victim was forwarded to the District Hospital, Lawngtlai for medical examination. The Medical Officer found that the hymen of the victim was torn in the posterior part, but no external injury was found on her body. He also did not find any bruise on her genital part. After investigation of the case, the appellant was arrested and interrogated by the Investigating Officer. The Police thereafter charge-sheeted the appellant under Section 376(1), IPC to stand the trial. The learned Sessions Judge, having found a prima facie case, framed the charge against him under Section 376(1), IPC, to which he pleaded not guilty. The trial court proceeded with the trial and in the course of trial, the prosecution examined as many as 5 prosecution witnesses to bring home the charge against him. After examination of the prosecution witnesses, the appellant was examined under Section 313, Cr.P.C. At the conclusion of the trial, the learned Session Judge found the appellant convicted him under Section 376(1), IPC and sentenced him as noticed earlier. 3. After examination of the prosecution witnesses, the appellant was examined under Section 313, Cr.P.C. At the conclusion of the trial, the learned Session Judge found the appellant convicted him under Section 376(1), IPC and sentenced him as noticed earlier. 3. On examination of the evidence of the victim who tendered her evidence by signs, which were interpreted by the interpreter, who was also examined as PW6, there appears to be major defects in the manner in which the victim was examined by the trial Court. This is the point raised by Mr. J.C. Lalnunsanga, learned counsel for the appellant, who argues that her evidence was not videographed: this is in contravention of the proviso to Section 119 of the Evidence Act, 1872 and such evidence is, therefore, is not admissible in evidence. The learned counsel further argues that the interpreter who was also examined as PW6 was not even administered oath at the time of interpreting the statement of the prosecutrix which is in contravention of the law laid down by the Apex Court. According to the learned counsel for the appellant, the interpreter was also examined as prosecution witness No. 6 and was actively involved in the investigation of the case by assisting the police. As she is an interested witness, argues the learned counsel for the appellant, the evidence of PW6 lacks credibility and cannot be believed and should not be acted upon to convict the appellant as charged. In support of his contention, learned counsel for the appellant strongly relies on the decision of the Apex Court in case of State of Rajasthan v. Darshan Singh alias Darshan Lal, reported in 2012(5) SCC 789 : ( AIR 2012 SC 1973 ). The learned counsel for the appellant finally submits that once the evidence of prosecutrix is discarded and the evidence of PW6 who is an interested witness is considered with a pinch of salt, there is no absolute evidence to bring home the charge against the appellant, who is, therefore, entitled to be acquitted. 4. On the other hand, Mr. A.K. Rokhum, learned Public Prosecutor, Mizoram supports the impugned judgment and submits that the conviction does not suffer from any infirmity calling for the interference of this Court. 4. On the other hand, Mr. A.K. Rokhum, learned Public Prosecutor, Mizoram supports the impugned judgment and submits that the conviction does not suffer from any infirmity calling for the interference of this Court. A spirited defence of the impugned judgment is made by the learned Public Prosecutor by contending that the manner in which the statement of the prosecutrix was recorded, on the basis of the interpretation made by the interpreter, does not suffer from any infirmity and is consistent with the procedure laid down by Section 119 of the Evidence Act. On the basis of the evidence of the prosecutrix, which are corroborated by the evidence of PW 6 and the Medical Officer in material particulars, contends the learned Public Prosecutor, there are sufficient evidence to hold the appellant guilty of the charge. It is also the submission of the learned Public Prosecutor that there are also a chain of circumstances, which taken together, unerringly point to the guilt of the appellant. The learned Public Prosecutor, Mizoram, therefore, strenuously urges this Court to uphold the judgment of conviction and sentence and dismissed the appeal. 5. I have gone through the materials on record as well as the impugned judgment. After giving my anxious consideration to the evidence on record, I am of the considered view that the prosecution is unable to prove beyond reasonable doubt that the appellant committed rape upon the prosecutrix. At the outset, it may be observed that the manner in which the evidence of the witness was recorded and as interpreted by the interpreter, left much to be desired. In the first place, the interpreter was not administered oath by the learned trial Court or by the Magistrate recording the statement of the prosecutrix under Section 164(5)(a), Cr.P.C. read with Section 119 of the Evidence Act, which is contrary to the decision of the Apex Court in the case of Darshan Singh ( AIR 2012 SC 1973 ) (supra). It was held therein that in case the interpreter is provided, he should be a person of the same surrounding but should not have any interest and he should be administered oath. Obviously the interpreter in this case was never administered oath by the Magistrate or trial Court. Secondly, PW6 who has acted as the interpreter while recording the statement of prosecutrix has also admitted that she is a relative of the prosecutrix. Obviously the interpreter in this case was never administered oath by the Magistrate or trial Court. Secondly, PW6 who has acted as the interpreter while recording the statement of prosecutrix has also admitted that she is a relative of the prosecutrix. If that is so, she is an interested witness and she should not have been allowed to act as an interpreter. In view of the legal position reiterated by the Apex Court in Darshan Singh ( AIR 2012 SC 1973 ) (supra), the statement of the prosecutrix and as interpreted by the interpreter is not admissible in law. Once the evidence of the prosecutrix is discarded, the question that remains to be decided is whether in the absence of the evidence of the prosecutrix, there are sufficient evidence to bring home the charge against the appellant. 6. As far as the statement of PW6 who had acted as the interpreter is concerned, apart from the fact that she is an interested witness and whose statement should be critically examined, her evidence is mostly based on the information obtained from the prosecutrix and not on her knowledge. No attempt was made by the prosecution to indicate that the evidence given by her about the incident was narrated to her by the prosecutrix immediately after the incident so as to make it relevant under Section 6 of the Evidence Act, 1872. Therefore, the statement of the PW6, which are mostly hearsay evidence, cannot form the basis for convicting the appellant. Coming now to the evidence of the Medical Officer, who has been examined as PW10, all he said was that the prosecutrix did not change her clothes as he examined her; that there was stain on her underwear; that her hymen was torn in the posterior region; that could not say whether the rupture of hymen was recent or not; and that he did not find spermatozoa on examination of the vaginal smear. Compare this with his disclosure in the cross-examination that there was no external injury on the body of the prosecutrix; he did not find any incriminating sign on the body of the appellant either. In my opinion, the statement of the Medical Officer is conspicuous by its ambiguity. He is not even sure as to whether there was any evidence of commission of rape upon the prosecutrix. 7. In my opinion, the statement of the Medical Officer is conspicuous by its ambiguity. He is not even sure as to whether there was any evidence of commission of rape upon the prosecutrix. 7. When the evidence of the material witnesses are lacking in detail or categorical in nature or are full of ambiguity, it is difficult to sustain the conviction of the appellant. In a criminal case, it is always the burden of the prosecution to prove their case beyond reasonable doubt and if there is any doubt on the case of the prosecution, the benefit of doubt must go to the appellant. It is quite possible that there is reasonable ground for entertaining grave suspicion that the appellant committed rape upon the prosecutrix but then, suspicion however strong or grave it may be, cannot take the place of proof beyond reasonable doubt. Thus, in my opinion, the evidence adduced by the prosecution are not sufficient to hold that the appellant is guilty of the charge. No other issues survive for consideration. It is, therefore, difficult to sustain the impugned judgment of conviction and sentence. 8. For the reason stated in the foregoing, this criminal appeal is allowed. The judgment of conviction and sentence dated 7.10.2013 passed by the learned Sessions Judge, Lunglei Judicial District, Lunglei in Crl. Trial No. 85/2012 cannot be sustained in law and is hereby set aside. The appellant is set at liberty forthwith unless he is required in connection with some other case. Appeal allowed.