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2015 DIGILAW 395 (GAU)

Jacoba v. State of Mizoram

2015-03-31

M.R.PATHAK

body2015
M.R. Pathak, J. 1. This criminal Appeal from jail is preferred by the accused/appellant Jacoba being aggrieved with the judgment and order dated 26.05.2014 passed by the learned Additional District & Sessions Judge, Aizawl Judicial District, Aizawl, in the Sessions Case being S.R. No. 29/2011, corresponding to Criminal Trial No. 2127/2010, arising out of West Phaileng Police Station (District-Mamit) Case No. 23 of 2010 by which the appellant/accused has been convicted under Sections 376(2)(f)/506(a) of the Indian Penal Code and sentenced him for the offence punishable under Section 376(2)(f) IPC to undergo Rigorous Imprisonment for 5 (five) years and to pay fine of Rs. 10,000/-, in default to undergo further Rigorous Imprisonment for another 6 (six) months and for the offence punishable under Section506(a) IPC to undergo Rigorous Imprisonment for 6 (six) months, setting off the sentence of the period of detention already undergone by him during the investigation and trial of the case against the period of sentence under Section 428 of the Code of Criminal Procedure. The prosecution case, as it emerges from the First Information Report dated 17.08.2010 (Exhibit-P1) lodged by the informant Chungkhawliana, PW. 1 & biological father of the victim, is that on the night of 16.08.2010 around 09:00 p.m. his daughter, Ms. M. (original name withheld) was raped by her step father Jacoba and prior to the same, she was earlier raped on 3 three other occasions by the said accused and he threatened her not to disclose the matter to anyone. 2. On receipt of the said FIR, West Phaileng Police Station Case No. 23 of 2010 under Sections 376(2)(f)/506(a) of the Indian Penal Code was registered against the accused/appellant. 3. 2. On receipt of the said FIR, West Phaileng Police Station Case No. 23 of 2010 under Sections 376(2)(f)/506(a) of the Indian Penal Code was registered against the accused/appellant. 3. During investigation, police arrested the FIR named accused appellant on 17.08.2010, visited the place of occurrence, drawn its sketch map, seized the 'Quilt Cover' (Exhibit-P4) found on the bed at the place of occurrence, sent the said seized 'quilt Cover' together with the blood samples of both, the victim as well as the accused, to the State FSL for its necessary examination and also sent them for their medical examination, recorded the statements of the victim, other witnesses acquainted with the facts of the case & the accused under Section 161 Cr.P.C. On receipt of the FSL Report (Exhibits-P3) and on completion of the investigation, finding sufficient evidence against him, the Investigating Officer vide Charge-Sheet No. 3/2011 dated 27.01.2011 filed the charge sheet in the case under Sections 376(2)(f)/506(a) of the IPC against the accused/appellant (Exhibit-P5). The case being exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate, Aizawl on 22.02.2011 committed the said case to the Court of learned Sessions Judge, Aizawl and accordingly, Sessions Case being S.R. No. 29/2011, corresponding to Criminal Trial No. 2127 of 2010, was registered. 4. On 22.02.2011 itself, learned Sessions Judge, Aizawl transferred the case records of said S.R. No. 29/2011, corresponding to Cri. Tri. No. 2127/2010 to the Court of learned Additional District & Sessions Judge Aizawl-I for its disposal. For allegedly committing rape on a minor girl and threatening her of dire consequences by the accused/appellant, the learned Additional District & Sessions Judge Aizawl-I on 01.07.2011 framed charges under Sections 376(2)(f)/506(a) IPC against him and those were read over and explained to him, to which, the accused/appellant pleaded not guilty and claimed to be tried. As such the trial commenced. 5. In order to bring home the charges, against the accused/appellant, the prosecution examined 8 (eight) witnesses on its behalf. The defence cross-examined the prosecution witnesses. The statement of the accused/appellant under Section 313 Cr.P.C. was recorded on 22.01.2014, where he denied all the allegations lodged against him and submitted that he will adduce Defence Evidence. Thereafter, two defence witnesses, including the accused/appellant, were examined and they were cross examined by the prosecution. 6. The defence cross-examined the prosecution witnesses. The statement of the accused/appellant under Section 313 Cr.P.C. was recorded on 22.01.2014, where he denied all the allegations lodged against him and submitted that he will adduce Defence Evidence. Thereafter, two defence witnesses, including the accused/appellant, were examined and they were cross examined by the prosecution. 6. The learned Additional District & Sessions Judge, Aizawl upon appreciation of the evidences adduced by both the prosecution & the defence, recorded the impugned judgment of conviction as aforesaid and hence, the present appeal. 7. We have heard Mr. Mr. Saurabh Pradhan, learned Amicus Curiae, for the accused/appellant and Mrs. Linda L. Fambawl, learned Additional Public Prosecutor, Mizoram representing the State. 8. Mr. Pradhan, learned Amicus Curiae for the appellant stated that there is no eye witness to the incident and it is mere allegation against the accused. He further stated that, there is also no direct evidence and enough to prove and establish the guilt of the accused under the charged sections. It was further submitted that the victim was looked after by the accused since her childhood days and as there was a family problem/dispute between the accused and his wife since he was an alcoholic and because of his drunkenness, he use to lose his control for which he sometimes misbehaved his wife, it is urged on behalf of the accused that a false allegation has been lodged against him and that the prosecutrix who was a 13 years old girl was in the habit of roaming around in the street at night. For all these and since the prosecution failed to establish the guilt of the accused beyond reasonable doubt, the learned Amicus Curie submitted that the impugned judgment of conviction and sentence against the accused/appellant is liable to be set aside and quashed. 9. On the other hand, Mrs. Fambawl, learned Additional Public Prosecutor supporting the judgment and order of conviction, submitted that prosecution has placed sufficient materials to prove the guilt of the accused. 10. Considered the submissions advanced by the learned counsels appearing for the parties in the present case and perused the evidence that were adduced by the parties in the above noted Sessions Case, apart from the judgment of conviction recorded by the learned Trial Court. 11. 10. Considered the submissions advanced by the learned counsels appearing for the parties in the present case and perused the evidence that were adduced by the parties in the above noted Sessions Case, apart from the judgment of conviction recorded by the learned Trial Court. 11. In order to appreciate the arguments, advanced by the learned counsels appearing for both the parties and to examine the correctness of the impugned Judgment and Order of conviction, it will be appropriate to briefly scrutinize the evidence on record. 12. The prosecution examined Dr. C. Hrangkapzawna (PW. 4), the Doctor who examined both, the victim as well as the accused. In her evidence, she deposed that on 18.08.2010, while she was posted as Medical & Health Officer at Mamit District Hospital, she conducted the medical examination of the victim, found her to be of 11 (eleven) years & below 12 (twelve) years of age; found the victim physically and mentally sound and her secondary sexual characters was not developed. On examination of her genital organs, the Doctor found victim's hymen ruptured which was an old rupture; took her vaginal smear and sent it to the laboratory for examination. Said Doctor also stated that at the time of examination, she was informed that the victim had already taken bath and that she changed her cloths. The Doctor opined that when there is a fresh rupture of hymen, there will be damage/abrasions of the tear and in old rupture such abrasions are not present and as the victim's hymen was found ruptured and the Doctor was definite that there was penetration on the victim. Said PW 4, the Doctor also deposed that she conducted medical examination of the accused and found him to be of a normal healthy person without any deformity in the development of his sexual organs and to her opinion the accused is a potent man. In her cross examination, said PW. 4 deposed that she did not find any injuries or marks on hymen around the genital organs of the victim and as she had already taken bath, no sign of sexual intercourse could be traced as it has been washed out and that laboratory report in respect of vaginal smear of the victim came back with a negative report with regard to the presence of spermatozoa. She also denied the suggestion that a fully intoxicated person with liquor cannot perform sexual intercourse. 13. It is seen that the prosecution by examining the said PW. 4, the Doctor, could prove about the old rupture of hymen of the victim, which was due to penetration on her private part. We are, therefore, required to see as to whether the prosecution could bring home the charge under Sections 376(2)(f)/506(a) of the IPC against the accused/appellant. 14. PW. 1, Chhungkhawliana, biological father of the victim, in his evidence in chief stated that out of their wedlock, he and PW. 3, the mother of the victim had 7 issues before their divorce and out of those 7 issues; the victim is the youngest daughter. After their divorce his wife, PW. 3 married the accused and lived with him and also look after his youngest daughter, the victim. He stated that, it is his former wife, PW. 3, mother of the victim informed him that her present husband, the accused raped their daughter, the victim and after consultation with their relatives, he lodged the FIR of the case, which was written by the FIR writer, wherein he endorsed his signature. In his cross examination, PW. 1 stated he reiterated that he came to know about the incident from his ex-wife, PW. 3 and as advised by the NGO, MHIP, he lodged the FIR. He also stated that a compromise has been reached between his family with that of the accused and he submitted a compromise letter before the concerned Police Station. On queries made by the Court, the said PW1 stated that the victim started living with him since last year and that now she is living with him and that his ex-wife PW. 3 is still married to the accused. 15. PW. 2, Ms. L, (original name withheld), the victim in her deposition submitted that her date of birth is 25.11.1988 and she was informed by her mother that she was about 8 months old when her mother PW. 3 was divorced by her father PW. 1 and that she is presently studying in Class VIII. She also stated that since her mother's divorce with PW1, she is living with her mother and the accused, who is her stepfather and she has a good relation with her biological father PW1 and her other siblings whom she visits quite often. 3 was divorced by her father PW. 1 and that she is presently studying in Class VIII. She also stated that since her mother's divorce with PW1, she is living with her mother and the accused, who is her stepfather and she has a good relation with her biological father PW1 and her other siblings whom she visits quite often. She stated that her stepfather, the accused is in the habit of drinking liquor and she doesn't have any complaints against him with regard to his misbehaving her due to his drunkenness. She deposed that sometimes in November 2009, when she was about 11 years old, during daytime, while she was sleeping in her bed, she suddenly woke up as the accused was trying to remove her under pant, found the accused lying on top of her, pulled her hair to the bed and threatened her not to shout and in spite of her struggle the accused inserted his male organ into her private part and raped her by removing her under pant and she was feeling severe pain. She also deposed that on the same day, during the night time, the accused raped her again and as she was threatened by the accused, she did not reveal anything to her mother PW. 3 and that the accused raped her on many occasions, when her mother was not at home. She further deposed that on 15.08.2010, when her mother left the house of the accused because of their quarrel due to drinking habit of her stepfather and when she was about to leave the house with her mother; the accused forcibly detained her and on the same night her stepfather, the accused raped her twice. She also stated that on the next day, when her mother did not return, the accused raped her again. It is on 17.08.2010 while she was coming back from school, her mother PW. 3 called her and both of them went to the house of her elder sister, where her mother was living in that period and on being asked by her mother what her stepfather did to her in the previous nights, then she disclosed everything to her mother. She also stated that she is aware about the FIR lodged at West Phaileng Police Station and that she was medically examined thereafter. She also stated that she is aware about the FIR lodged at West Phaileng Police Station and that she was medically examined thereafter. She also stated that after the arrest of her stepfather, the accused, she lived with her mother and after the accused was released on bail, she started living with her biological father PW. 1. In her cross examination the victim, the PW. 2 denied the suggestion that it is only when the accused was drunk he raped her and admitted that her stepfather use to behave abnormally while he is drunk and she did not tell the incident to anyone except to her mother. She also stated that she did not tell anything to her mother prior to her separation with her stepfather on 15.08.2010. She denied the suggestion of the defence that the accused only inserted finger and not his male organ in her private part. In her cross examination the victim further stated that after her stepfather was released on bail, she use to visit her mother, but never spent the night in their house and during her such visit the accused did not behave in a manner as he did earlier and stated that she never visits their house when the accused remains alone in it. She also stated that the accused has stopped consuming liquor and deny the suggestion that she deposed falsely. 16. PW. 3, Lalneihkimi, the mother of the victim is a hearsay witness. In her deposition, she stated that while returning from school, the victim told her that the accused had sexual intercourse with her and when she enquired it again about the truthfulness of her statement, the victim replied in affirmative and on the same day the victim made a disclosure before her elder sister, who in turn informed her father PW. 1. In her cross examination, PW. 3 stated that prior to the disclosure made by her daughter, the victim; she did not see the accused and the victim nor did she had any suspicion towards any sexual relations between them. She leave her house one night to stay away from her husband, the accused, since he was drunk and returned home next day and then her daughter made the said disclosure. She leave her house one night to stay away from her husband, the accused, since he was drunk and returned home next day and then her daughter made the said disclosure. She also admitted that her husband, the accused in his drunkenness behaves in a unruly manner and after his release on bail, he had reformed himself and gave up the habit of consuming liquor. She also stated that though her daughter, the victim who now stays with her biological father, visits her house often and no trouble has arisen during her such visits. 17. PW. 5, R. Vanlalkima, Assistant Director of Forensic Science Laboratory, Aizawl, who is working in its Biology Department deposed that on careful biological examination by using scientific instruments, it was found that the control blood group of the accused is 'O'; that the blood group of the victim is 'AB'; the stain in the seized quilt gives positive results for presence of semen that belongs to blood group 'O' and Vaginal swab of the victim gives negative results for presence of semen and it belongs to blood group 'AB'. In his cross examination, PW. 5 stated that his finding of examination indicates a positive result of the presence of semen of the accused which is also identical to the blood group of the accused. 18. PW. 6, namely, Chuangliani is a seizer witness who was present in the house of the accused when police seized the bed sheet having floral print which contains some stain on it. In her cross examination, PW. 6 stated that she does not have any personal knowledge regarding the case except what she heard from the family of the victim. 19. PW. 7, namely, Lianzuali is another seizer witness who in her evidence deposed that at the time of the incident she was the vice president of MHIP Dapchhuah Branch and when police seized the bed sheet from the house of the accused, she was not present in the said house. She stated that while she was in the house of the President of the MHIP, where she found the family members of the victim and when police arrived, they all went to the house of the accused but she remained in the house of the President. She stated that while she was in the house of the President of the MHIP, where she found the family members of the victim and when police arrived, they all went to the house of the accused but she remained in the house of the President. She also deposed that when police with others returned and showed her the bed sheet and then she put her signature in the seizure memo. In her cross examination, she stated that she and the other seizer witness PW. 6 did not see police seizing the bed sheet as both of them waited for them in the house of the MHIP President and she do not know from where the police brought the bed sheet (Material Exhibit-1) to the house of the MHIP President. 20. PW. 8, namely, Dhian Singh Minhas, the Investigating Officer of the case in his evidence deposed that he conducted the investigation, visited the place of occurrence and recorded the statement of the witnesses, the victim of the case, who was medically examined. He stated that the victim in her statement before him told that the accused first raped her in November 2009 and also on the nights of 15th & 16th August, 2010 and on the said two days, she was sexually assaulted twice on both the nights and that on the night of 16.08.2010 after she was raped by the accused, she wiped her private part with quilt cover and seized one quilt cover as shown by the victim in presence the independent civilian witness and arrested the accused on 17.08.2010, forwarded him along with the victim for medical examination; where blood samples of both the victim as well as of the accused were collected including the Vaginal swab of the victim, which were sent to the FSL along with the seized quilt cover for its necessary examination and to ascertain the presence of any spermatozoa in the same. After the receipt of the FSL report and from the evidences collected during the investigation, he being prima facie satisfied, submitted the charge sheet against the accused for the offence punishable under Sections 376(2)(f)/506(a) IPC. In his cross examination, PW. After the receipt of the FSL report and from the evidences collected during the investigation, he being prima facie satisfied, submitted the charge sheet against the accused for the offence punishable under Sections 376(2)(f)/506(a) IPC. In his cross examination, PW. 8 submitted that he is not aware about any other criminal antecedence of the accused as he did not receive any FIR against the accused regarding previous incidence, sent the accused for medical examination to see his general conditions and that he do not have any documentary proof with regard to the age of the victim and that the mother of the victim who was asked to produce birth certificate/baptismal certificate or any other certificate with regard to the age of the victim, i.e. her daughter; but as she did not return to the house of the accused, she did not produce any document to him. 21. DW. 1, Namely, Huntharnghaka, who is a hearsay defence witness, in his deposition stated that the accused is his neighbour, heard about the incident two days after the arrest of the accused. In his cross examination, DW. 1 stated that the accused is the step father of the victim and he does not have any knowledge with regard to the seizure from the house of the accused and that he did not personally ask the victim about the incident and further stated that though the accused is his close neighbor, he do not have the entire knowledge of the accused's family and that he is not an eye witness to the incident of the case. 22. DW 2, the accused, namely Jacoba in his evidence submitted that he and his wife (PW. 3) had an altercation as no pork was left for him which he purchased for which she left the house and two days thereafter she met the victim while she was returning from school and on the said day around mid night he was arrested by police while he was fully drunk. 3) had an altercation as no pork was left for him which he purchased for which she left the house and two days thereafter she met the victim while she was returning from school and on the said day around mid night he was arrested by police while he was fully drunk. While he was in police custody, his wife came to him in the morning with the request to allow her to look after his property which he agreed and on his release on bail, the former husband of his wife, the biological father of the victim sought for an excuse from him as he lodge the FIR against him and thereafter the father of the victim went to the concerned police station to inform him about the compromise of the matter. He denied the allegations lodge against him and submitted that prior to the FIR; both he and the father of the victim had a misunderstanding with regard to the selling of timber by father of the victim without his knowledge which were sowed together. In his cross examination, DW 2 the accused stated that his wife returned to his house on the date of the arrest and that he never had any sexual relation with the victim and submitted that when he was made the accused for committing rape on the victim, he was drunk. 23. The victim, P.W.1 in her evidence stated that her date of birth is 25.22.1998 and as told by her mother, PW. 3 she was about 8 (eight) months old when she divorced her biological father. PW. 3, mother of the victim in her evidence stated that she married the accused in the year 1999 and that the accused is not the father of the victim, whereas it is PW. 1, her divorced husband is the father of the victim. During her medical examination, the Doctor PW. 4, found the victim to be of 11 (eleven) years old which she stated in her evidence. These evidences were not rebutted by the defence. So it can be well presumed that the victim was a minor aged between 11 to 12 years old during the incident in November 2009 and in August 2010. 24. The Doctor PW. 4, found the victim to be of 11 (eleven) years old which she stated in her evidence. These evidences were not rebutted by the defence. So it can be well presumed that the victim was a minor aged between 11 to 12 years old during the incident in November 2009 and in August 2010. 24. The Doctor PW. 4 who medically examined the victim, in her evidence stated that she found old rupture of hymen of the victim and opined that when there is a fresh rupture of hymen, there will be damage/abrasions/injury of the tear, but in old rupture, such injuries are not present and as the victim's hymen was found ruptured, she was definite that there was penetration on the victim. There is nothing to disbelieve the said evidence given by the Medical officer. The defence in cross examining the said Doctor, the PW. 4 could not destroy said part of the evidence. 25. The victim, PW. 1 in her evidence specifically stated that in November 2009 the accused committed rape on her, she was threatened of dire consequences, if she reveals about the same and again during 15th -16th August, 2010, in absence of her mother PW. 3, the accused raped her. While she deposed her statement before the Court in March 2012, the victim was only about 13 years old. Further, victim's statement before the Court is fully corroborated by the statement of the Investigating Officer PW. 8, before whom she disclosed the aforesaid incidents. Moreover, as told by the victim that she wiped her private parts with the quilt cover after the accused raped her on the night of 16.08.2010 and as shown by the victim, the Investigating Officer seized the said quilt cover, sent to FSL and on its scientific examination, report of the FSL revealed that the stain in the said quilt cover showed positive result of presence of semen that belongs to blood group 'O' and as per FSL examination report, the blood group of the accused is 'O'. In this regard the Assistant Director of Forensic Science Laboratory, Aizawl, Mizoram was examined by the prosecution as PW. 4. 26. Though the aforesaid prosecution witnesses were cross examined by the defence, it failed to bring out any material contradiction to demolish their evidence, which remain intact. In this regard the Assistant Director of Forensic Science Laboratory, Aizawl, Mizoram was examined by the prosecution as PW. 4. 26. Though the aforesaid prosecution witnesses were cross examined by the defence, it failed to bring out any material contradiction to demolish their evidence, which remain intact. There is also no evidence on record in the case to show that the accused and the victim and/or her mother and/or her biological father and/or all of them had any animosity between them or they had any reason to falsely implicate the accused/appellant in a rape case; sacrificing family pride & honour and the future of the minor victim girl at the cost of her character. Hon'ble Apex Court in catena of decisions have settled the law that in a case of sexual assault, the testimony/evidence of the victim/prosecutrix alone, if found to be trustworthy and reliable, can be the sole basis for conviction. In the present case, there is nothing on record to disbelieve the evidence of the victim recorded by the learned Trial Court and on the other hand there are enough evidence on record corroborating her evidence. 27. Considering the entire aspect of the matter and in view of the aforesaid discussion, the Court is of the view that prosecution could prove the guilt of the accused involved in this case beyond all reasonable doubt and the learned Trial Court on the basis of evidence available on record, has arrived at the findings which do not suffer from any illegality and perversity. 28. In view of the aforesaid discussion, this Court does not see any reason to interfere with the judgment & order of conviction and sentence under Sections 376(2)(f)/506(a) dated 26.05.2014 passed by learned Additional District & Sessions Judge, Aizawl Judicial District, Aizawl in Criminal Trial No. 2127/2011 corresponding to SR No. 29/2011, against the accused-appellant, more particularly, when the impugned sentence passed against the accused-appellant is quite less than the punishment prescribed statutorily. 29. Accordingly, this appeal stands dismissed. 30. Before parting with the case, the assistance rendered by the learned Amicus Curiae, Mr. Saurabh Pradhan appearing for the accused/appellant is acknowledged and the Mizoram State Legal Services Authority is directed to pay him his legal remuneration of Rs. 7,000/- (Rupees Seven Thousand only). Registry shall send down the records along with copy of the Judgment.