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Gauhati High Court · body

2015 DIGILAW 140 (GAU)

Sh. R. Lalthanzauva v. State of Mizoram

2015-02-07

T.VAIPHEI

body2015
This criminal appeal is directed against the judgment and order dated 28-6-2013 passed by the learned Sessions Judge, Lunglei Judicial District, Lunglei convicting the appellant under Section 376(2)(f) I.P.C. and sentencing him to undergo rigorous imprisonment for 10 years with a fine of Rs. 500/- and, in default thereof, to suffer a simple imprisonment for 15 days. 2. The case of the prosecution is that on 26-2-2012 at about 12.15 PM, an ejahar was lodged by Pi Vanlalveni of Lungleng Veng, Hnahthial with the Officer-in-Charge of Hnahthial Police Station stating that on 26-2-2012 at 10.00 AM, when her daughter, aged 6 years, was playing with her friends in front of BCM Church Kanan Veng, Hnahthial, the appellant went to her, asked her to accompany him by promising to buy something for her and then took her to his house and raped her. The Hnahthial Police Station thereupon registered Hnahthial P.S. Case No. 5/2012 U/s 376(2)(f) IPC and investigated into the case. In the course of investigation, the IO of the case visited the place of occurrence (PO) and drew the sketch map of the PO and arrested the appellant and brought him to custody. The underpant of the appellant, the birth certificate of the victim and Rs. 10/- denomination were seized by the IO in the presence of the witnesses, while the appellant and the victim were forwarded to the CHC, Hnahthial for medical examination, and their statements were also recorded. After completion of the investigation, the appellant was charge-sheeted U/s 376(2)(f) IPC and sent up for trial. The trial court, having found a prima facie case, framed the charge against the appellant U/s 376(2)(f) IPC, to which the appellant pleaded not guilty to the charge. In the course of trial, the prosecution examined as many as 10 witnesses to prove the charge against the appellant. After examination of the prosecution witnesses, the appellant was examined under Section 313 CrPC. 3. I have carefully gone through the impugned judgment and the evidence on record. In my judgment, the appellant was rightly convicted by the trial court. I will straightaway refer to the statement of the prosecutrix/victim. She was examined as PW2 and deposed that on the day of the incident, which was a Sunday, she was attending the Church service along with her friends. In my judgment, the appellant was rightly convicted by the trial court. I will straightaway refer to the statement of the prosecutrix/victim. She was examined as PW2 and deposed that on the day of the incident, which was a Sunday, she was attending the Church service along with her friends. At that time, the appellant invited her and her friends to go out of the Church, and when they reached a certain distance from the Church, which was no longer visible, he asked her friends to return home and invited the victim to come to his residence by offering her some money. As they entered his residence, continued the victim, there was no other person. The appellant then kissed her on her lips and then took off his shirt and started to play her private part. He then inserted his male organ on her private part and pressed it. According to victim, she felt pain at this, but it was not bleeding. He then gave Rs. 10/- which she, in turn, gave it to her mother. The appellant instructed her not to tell her parents as otherwise, they would beat her. She then went home crying and on the way home, she met Hlutei (Smt. H. Biakhlupuii), who was examined as PW3, who asked her as what happened to her. To which, she replied that the appellant raped her. The cross-examination of the prosecutrix does not bring out anything to discredit her testimony: in fact, the cross-examination was merely suggestions, which were denied by the victim and such suggestion and denial are hardly sufficient to elicit the truth or demolish her testimony. 4. This then takes me to the evidence of Mrs. Hlutei, who is none other than PW 3. PW 3 identified the appellant and testified that the victim is her relative. Leaving aside her hearsay evidence, what is significant from her deposition is that she was the one who saw the appellant taking the victim away from the Church and it was around 11.00 AM when the victim did not return, she entertained suspicion and when one programme in the church was over, she informed her husband about her apprehension, to which her husband told her to make inquiry instead of attending the second programme. She then proceeded to the residence of the appellant and met the victim on the way and noticed that her hair and face were abnormal and there were tears on her eyes. According to PW 3, the victim tried to avoid her, but when she called her and asked her as to what happened to her, she simply replied that the appellant did not do anything to her. When she asked again for the third time, she requested her not tell her parents, and it was only when she (PW 3) promised not to disclose to her parents that she revealed that the appellant had taken her to his residence whereat he kissed her and had sexual intercourse with her; that she felt pain, cried and ran out of the house. She was carrying Rs. 10/- whereafter she looked at her private part and saw a pool of semen. She became enraged and expressed her apprehension that she (PW 3) would reveal it to her parents and cried out loudly. She then returned and narrated the incident to one Tlangpari (Nupari) whereafter she went to her grandfather informed him about the incident. She was later on called to the Police Station where the police seized the underpant of the victim and Rs. 10/- for which she was made the seizure witness. M-Ext-1 is the seized article. Ext. P-II is the seizure memo and Ext-P-II(a) is her signature. She then deposed that she received a report that the appellant had stated that he would assault her after his release from jail. As noticed earlier, apart from the hearsay evidence, her evidence reproduced herein above are not in any manner demolished by the appellant in her cross-examination, which are mostly suggestions and denial. Her evidence that she met the victim, who narrated the incident about her rape are in the nature of statement made shortly after the incident which can be said to form a part of the same transaction and are, therefore, relevant under Section 6 of the Evidence Act. In my opinion, this witness has corroborated the evidence of the prosecutrix in material particulars. On the contrary, her evidence, except for some hearsay, are credible and trustworthy and lend credence to the story of the prosecutrix. 5. P.W. 9 is the Medical Officer, who examined the appellant as well the victim. In my opinion, this witness has corroborated the evidence of the prosecutrix in material particulars. On the contrary, her evidence, except for some hearsay, are credible and trustworthy and lend credence to the story of the prosecutrix. 5. P.W. 9 is the Medical Officer, who examined the appellant as well the victim. According to PW 9, she found no pubic hair; that there was laceration and redness on her vagina; that her hymen was torn which was of recent origin, but she did not find any other injury on the other parts of her body. She found that the appellant consumed liquor the previous night, but found nothing on his body and genital region. The cross-examination of the Medical Officer do not bring out anything to falsify the truthfulness of her testimony. On the contrary, her findings that there was laceration and redness on her vagina, fully corroborated the statement of the victim that the appellant inserted his male organ and she felt pain, but there was no bleeding. As a matter of fact, the question of finding injury on the body or genital part of the appellant does not and cannot arise when it is not the case of the prosecution that the victim struggled and resisted the commission of rape by him. Consent is immaterial when the victim is a minor. Though the appellant in his examination under Section 313 CrPC denied that he raped the victim, yet he admitted that the victim followed him to his residence, and he gave her Rs. 10/-. Now, once he admitted that the victim followed her and he had given her Rs. 10/-, the onus is upon him to prove as to why the victim followed him to his residence and why she gave her Rs. 10/-. In the absence of reasonable explanation, this evidence further bolster the statement of the victim that the appellant invited her to his residence by offering money and that he gave Rs. 10/- after the sexual intercourse. In my opinion, the evidence i.e. the oral testimony of PWs 2 & 3 as well as medical evidence clearly establishes the commission of rape in the manner in which it was committed and the place where it was committed. 6. A desperate attempt was, however, made by Mr. 10/- after the sexual intercourse. In my opinion, the evidence i.e. the oral testimony of PWs 2 & 3 as well as medical evidence clearly establishes the commission of rape in the manner in which it was committed and the place where it was committed. 6. A desperate attempt was, however, made by Mr. Johny L. Tochhawng, the learned Amicus Curiae, in the course of hearing, to destroy the evidence of the prosecutrix on the ground that she, being a six year old child, is a child witness and she is not competent to be a witness due to her tender age as she could be easily tutored by the prosecution. In my judgment, this contention has overlooked the established legal position that a child is competent to testify under Section 118 of the Evidence Act, if it can understand the questions put to it, and give rational thereto. Her competence to testify was never challenged by the defense in the course of trial. Moreover, her evidence was never shaken. Nor was she ever questioned as to her competence to give her evidence. The legal position is clear: the evidence of a child is not to be rejected per se; but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality and reliability thereof that conviction can be recorded. In the instant case, even without corroboration from PW 3 and PW 9, the evidence of the prosecutrix is independently quite reliable and consistent throughout, but then it is not necessary to rely exclusively on her evidence to convict the appellant. There are sufficient corroboration of her evidence from the evidence of PWs 3 and 9 to establish the case of the prosecution beyond reasonable doubt that the appellant committed rape upon the prosecutrix. In the view that I have taken, the trial court has rightly convicted the appellant under Section 376(2)(f) IPC and adequately sentenced him. 7. For what has been stated in the foregoing, there is no merit in this appeal, which is hereby dismissed. The appellant shall serve out the remaining period of his sentence. Transmit the L.C. record. Before parting, I place on record my appreciation for the valuable service rendered by the learned Amicus Curiae in the course of hearing. He shall be entitled to Rs. The appellant shall serve out the remaining period of his sentence. Transmit the L.C. record. Before parting, I place on record my appreciation for the valuable service rendered by the learned Amicus Curiae in the course of hearing. He shall be entitled to Rs. 7,500/- (Rupees Seven thousand five hundred) only by way of fees which shall be paid by Mizoram Legal Services Authority, Aizawl.