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2015 DIGILAW 396 (GAU)

Lalhmingsanga v. State of Mizoram

2015-03-31

M.R.PATHAK

body2015
M.R. Pathak, J. 1. The accused/appellant, namely, Lalhmingsanga has preferred this criminal Appeal from jail being aggrieved with the judgment and order dated 18.04.2014 passed by learned Additional District & Sessions Judge-I, Aizawl Judicial District, Aizawl, Mizoram in the Sessions Case being Criminal Trial No. 1610/2012 corresponding to S.R. No. 350/201, arising out of Vaivakawn Police Station (District-Aizawl) Case No. 96/2012 by which the accused/appellant has been convicted under Sections 376(2)(f)/511 of the Indian Penal Code and sentenced him to undergo Rigorous Imprisonment for a period of 10 (ten) years and to pay fine of Rs. 10,000/-, in default to undergo Rigorous Imprisonment for another one year, 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 08.07.2012 (Exhibit-P1) lodged by the informant Lalnunpuii, PW. 1 & mother of the victim before the Officer-in-Charge of Vaivakawn Police Station is that on the morning of 08.07.2012, Sunday around 07:00 a.m., her daughter, Ms. Z. (original name withheld), who was only 5 (five) years old was raped by Lalhmingsanga, the accused, below the step of Dinthar Transport Ground. 2. On receipt of said FIR, Vaivakawn Police Station Case No. 96 of 2012 under Section 376(2)(f) of the Indian Penal Code was registered against the accused/appellant. 3. During investigation, police arrested the FIR named accused appellant on 08.07.2012, visited the place of occurrence, drawn its sketch map, by the Seizure Memo (Exhibit-P2) seized the Birth Certificate (Exhibit-P3) of the victim, sent both, the victim as well as the accused 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 Medical Reports of the victim (Exhibit-PVI), of the accused (Exhibit-P), his injury report (Exhibit-P5) and on completion of the investigation, finding sufficient evidence against him, the Investigating Officer vide Charge-Sheet No. 92/2012 dated 04.09.2012 filed the charge sheet in the case under Sections 376(2)(f)/511 of the IPC against the accused/appellant. Since the charge Section 376(2)(f) IPC being exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate, Aizawl on 26.09.2012 committed the case to the Court of learned Sessions Judge, Aizawl and accordingly, Sessions Case being Criminal Trial No. 1610 of 2012 corresponding to S.R. No. 350/2012 was registered. 4. On 26.09.2012 itself, learned Sessions Judge, Aizawl transferred the case records of said Criminal Trial No. 1610/2012 corresponding to S.R. No. 350/2012 to the Court of learned Additional District & Sessions Judge-I, Aizawl for its disposal. For allegedly committing rape on a minor girl by the accused/appellant, the learned Additional District & Sessions Judge-I, Aizawl on 05.11.2012 framed charge under Section 376(2)(f) IPC against him, which were read over & 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 7 (seven) witnesses on its behalf. The statement of the accused/appellant under Section 313 Cr.P.C. was recorded on 28.01.2013, where he denied all the allegations lodged against him. The defence though cross-examined the prosecution witnesses, but did not adduce any evidence from its side. 6. The learned Additional District & Sessions Judge, Aizawl upon appreciation of the evidences adduced by the prosecution and hearing both the parties, found that the prosecution had been able to prove the case against the present appellant and accordingly recorded the impugned judgment of conviction for the offences and imposed the sentence as stated above and hence, the present appeal. 7. We have heard Mr. Victor L. Ralte, learned Amicus Curiae, for the accused/appellant and Mrs. Linda L. Fambawl, learned Additional Public Prosecutor, Mizoram representing the State. 8. Mr. Ralte, learned Amicus Curiae for the appellant stated that no offence under Section 376(2)(f) IPC has been committed by the accused/appellant as there is no evidence to that extent. Mr. Ralte also submitted that the Investigating Officer of the case was not examined in the case and as such prejudice was caused to the accused/appellant and to that extent Mr. Ralte relied on the Judgment of the Hon'ble Supreme Court in the case of Lahu Kamlakar Patil & Anr. Vs. State of Maharashtra, reported in (2013) 6 SCC 417 . Mr. Ralte relied on the Judgment of the Hon'ble Supreme Court in the case of Lahu Kamlakar Patil & Anr. Vs. State of Maharashtra, reported in (2013) 6 SCC 417 . Mr. Ralte further submitted that conviction of the accused/appellant is solely on the evidence of the victim, a child witness and her said evidence with regard to Section 376(2)(f) IPC has not been corroborated by any other independent witnesses and as such the conviction of the accused/appellant under said charged Section is bad in law. In this regard Mr. Ralte placed his reliance on the Judgment of the Hon'ble Supreme Court in the case of K. Venkateshwarlu Vs. State of Andhra Pradesh, reported in (2012) 8 SCC 73 . In addition to that Mr. Ralte also submitted that evidence of Prosecution Witness No. 3, namely, Vanlalhrnuaka has not been signed by the learned Presiding Judge, i.e. learned Additional District & Sessions Judge-I, Aizawl, who recorded the said statement of the PW.3, as required under Sub-Section (3) to the Section 276 of the Code of Criminal Procedure, 1973 and therefore, it cannot be part of the record of the case before learned Trial Court. For all these, learned Amicus Curiae submitted that the prosecution failed to establish the guilt of the accused beyond reasonable doubt, therefore, the impugned judgment of conviction and sentence against the accused/appellant is liable to set aside and quashed. Mr. Ralte, learned Amicus Curiae has submitted before the Court that since the accused/appellant is not guilty under Section 376(2)(f) IPC and if the facts of the case establishes that the accused/appellant committed minor offence, at best he may be convicted for the offence under Section 354 IPC and he relied on the Judgment of the Hon'ble Supreme Court in the case of Pandharinath Vs. State of Maharashtra, reported in (2009) 14 SCC 537 . 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, perused the evidence adduced by the prosecution in the above noted Sessions Trial and also has gone through 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, perused the evidence adduced by the prosecution in the above noted Sessions Trial and also has gone through 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, let me briefly asses the evidence on record. 12. The PW. 1, namely, Lalnunpuii, mother of the victim and the informant of the case in her evidence deposed that the victim borne on 06.03.2003 at Civil Hospital at Aizawl, they are living at Dawrpui Vengthar, Aizawl and on the date of the incident on 08.07.2012 around 6:30 a.m. her daughter, the victim, went outside from their bathroom and thereafter around 7:00 a.m. Vala, PW.3, brought her daughter to her home from the place of occurrence and informed her that her said daughter was tried to be raped by one male person. Then, they immediately proceeded towards the place of occurrence under the step near Pu. Dailova's residential building and her daughter, the victim told her that the accused asked her to purchase acid from the grocery store and then the accused brought her, the victim to the place of occurrence and asked her to suck his private part. The victim also told her that after some time the accused undress her underwear and tried to insert his male organ in to her private part. The said PW. 1 stated that the local people in the meanwhile detained the accused and victim further told her that accused threatened to kill her if she shouts or cry or disclose the matter to anyone. Said PW. 1 also stated that then she lodged the FIR with the Vaivakawn Police Station and her daughter was brought to the Civil Hospital, Aizawl for medical examination and after sometime, she submitted the birth certificate of her daughter, the victim, to the Vaivakawn Police Station. In her cross examination, PW. 1 stated that she informed the Joint Action Committee regarding the incident and on the same day she lodged the FIR and she did not had the time to ask her daughter (victim) regarding the incident and lodged the FIR with the Police Station. In her cross examination, PW. 1 stated that she informed the Joint Action Committee regarding the incident and on the same day she lodged the FIR and she did not had the time to ask her daughter (victim) regarding the incident and lodged the FIR with the Police Station. Said PW.1 also stated that she did not know the accused personally and she did not see the accused committing the offence. 13. The PW.2. Zonunsiami, the victim, was about 5 (five) years at the time when her evidence was recorded on 19.11.2012 (incident occurred on 08.07.2012). Learned Trial Court asked her some questions and found that the victim understood those questions and her answers to those questions were rational. Thereafter, the Trial Court being satisfied recorded her statement. On being asked PW.2, the victim stated that in the morning on the date of incident she went to the house of Mar Mari, but she could not enter there as they did not woke up and she waited near Mar Mari's house. The accused was also standing near Mar Mari's house, who asked her to buy acid and then the accused brought her near the step of the garage which is near the residential building and there the accused forced her to suck his male organ. She also stated that the accused threatened her not to move or shout and he undressed her underwear and made her to sit on a box (fish container) and tried to insert his male organ into her private part and at that time fathers of both Mar Mari and Lalthlamuani saw her, apprehended the accused and Vala (PW.3) brought her to home. In her cross examination, the PW.2, the victim stated that she did not made any hue and cry since the accused threatened her and nobody was present during the time of occurrence and father of Lalthlamuani, who saw the incident, narrated the same to Pu Vala (PW.3) who took her to her mother. 14. The PW.3, Vanlalhmuaka, in his evidence deposed that on the morning of the incident on 08.07.2012 while he was proceeding towards the grocery store near his residence, he saw the accused being caught hold by Vanchhunga and also saw the victim crying near the garage and took the victim to her parents, told them about the incident. 14. The PW.3, Vanlalhmuaka, in his evidence deposed that on the morning of the incident on 08.07.2012 while he was proceeding towards the grocery store near his residence, he saw the accused being caught hold by Vanchhunga and also saw the victim crying near the garage and took the victim to her parents, told them about the incident. Police subsequently arrested the accused, seized the birth certificate of the victim to which he is a signatory. In his cross examination, the PW.3 stated that he did not see the accused and the victim committing the offence and that he does not know whether police seized anything else except the birth certificate of the victim. 15. The PW.4, Vanchhunga, in his evidence deposed that on the morning of the incident 08.07.2012 around 6 to 6:30 am while he was parking his vehicle in their garage, he saw the accused and the victim and saw that the accused was slightly standing near the garage and the victim was sitting beside him and she was sucking accused's private part. On his enquiry, he saw the underwear and one rupee coin near the victim and also saw eatables nearby. Thereafter said PW.4 caught hold the accused and informed others and after some time handed over him to the JAC (Joint Action Committee). Then Police came, seized the birth certificate of the victim to which he is a signatory. In his cross examination, the PW.4 stated that the place where the incident took place was a bit dark and he could only see the bottom part of the victim and the accused and he had seen the victim sucking the private part of the accused. He also stated that he could see both the accused and the victim when he entered inside the garage. He further stated that Police seized under garments, one rupee coin and other materials which were lying nearby to the place of the incident. 16. The PW.5, J.H. Lalthawmmawia, father of the victim in his evidence submitted that on 9.7.2012 police came and took the birth certificate of the victim (Exhibit-P3) and after making a Xerox copy of the same, they returned the same to him. In his cross examination by defence, the PW.5 denied the suggestion that police did not seize the birth certificate of the victim. 17. The PW.6, Dr. In his cross examination by defence, the PW.5 denied the suggestion that police did not seize the birth certificate of the victim. 17. The PW.6, Dr. Jeremy V. Pachuau, in his evidence deposed that on 08.07.2012 he medically examined the accused around 11:50 a.m. on the requisition from Aizawl Police Station and during his said examination, the accused told him that he did not had sexual intercourse with the victim, but he performed oral sex at around 6:00 a.m. on the same morning. During his medical examination, said PW.6 found the accused intoxicated with alcohol and that he suffered simple injuries on his shoulder, arm, left clavicle, upper thigh and forehead. In his cross examination, PW.6 the Doctor denied the suggestion that he did not examine the accused and that he deposed falsely. 18. The PW.7, Dr. Vanlalhruaii Fanai, in her evidence deposed that on 08.07.2012 she examined the victim and the Exhibit-PVI is her finding and Exhibit-PVI (a) is her signature in it. In her cross examination by the defence, she denied the suggestion that she did not examine the victim and that she deposed falsely. 19. Findings of Medical Examination Report of the present victim PW.2 in alleged rape, i.e. Exhibit-PVI, proved by the PW.7, Dr. Vanlalhruaii Fanai in her evidence reads as follows: "FINDINGS: 1. Physical & Mental Health: Nil. 2. Influence of Alcohol or Drugs at the time of Examination: Nil. 3. Seminal stains or other stain on clothes: Nil. 4. Marks of Violence on the body: Nil. 5. GENITAL EXAMINATION: a) Pubic Hair: Nil. b) Seminal Stain: Nil. c) Bruising/Laceration of external genitalia: Nil. d) Hymen: Intact. 6. Sign of infection (Discharge or colour etc.) with duration: Nil. 7. Laboratory report Smear/Discharge/Stains: Nil. 8. X-Ray report for age determination (when age Cannot be ascertained by Medical Officer)?" 20. Amendment of Sections 354, 375 & 376 of the IPC came into force with effect from 03.02.2013. In the present case, the incident occurred on 08.07.2012, i.e. prior to the aforesaid amendment of Sections 354, 375 & 376 IPC. Section 375 IPC, as it stood prior to its amendment in February 2013, reads as follows: "375. Rape.--A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- First.--Against her will. Secondly.--Without her consent. Section 375 IPC, as it stood prior to its amendment in February 2013, reads as follows: "375. Rape.--A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- First.--Against her will. Secondly.--Without her consent. Thirdly.--With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly.--With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.--With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.--With or without her consent, when she is under eighteen years of age. Explanation.--Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception.--Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape." So to constitute 'rape' as per Section 375 IPC, prior to its amendment in February, 2013; it is necessary to have sexual intercourse with a woman and for that purpose, penetration into the private part of the victim woman is must. 21. On careful perusal of the evidence of the victim girl PW.2, it is seen that the victim herself stated that the accused tried to insert his male organ into her private part. But there is nothing in the evidence of the case in hand that the accused penetrated his male organ into victim's private part. The medical evidence of the victim, Exhibit-PVI, proved by the Doctor PW.7; also does not reflect about any injury like abrasion/bruising/laceration etc. on her private part. From the evidence adduced by the prosecution and recorded by the learned Trial Court, as discussed above, it cannot be hold that the accused penetrated his male organ into the private part of the victim and had sexual intercourse with her to commit the offence of rape as provided under Section 375 IPC. 22. on her private part. From the evidence adduced by the prosecution and recorded by the learned Trial Court, as discussed above, it cannot be hold that the accused penetrated his male organ into the private part of the victim and had sexual intercourse with her to commit the offence of rape as provided under Section 375 IPC. 22. However, it is seen from the evidence recorded by the learned Trial Court that the accused had committed an unnatural offence of having carnal intercourse with minor victim girl. Section 377 of the Indian Penal Code relates to Unnatural Offences and it reads as follows: "377. Unnatural offences.--Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine. Explanation.--Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section." So as per Section 377 IPC, for the unnatural offence of carnal intercourse also penetration is necessary. 23. The minor victim girl, PW.2 in her evidence specifically stated that the accused forced her to suck his male organ and he threatened her not to move or shout and that he undressed her underwear and made her to sit on a box (fish container) and tied to insert his male organ into her private part. This part of the evidence of the victim PW.2 remained unshaken during her cross examination by the defence. 24. Again the PW.4, an independent witness, in his evidence clearly deposed that on the day of the incident, in the morning hours, while he was parking his vehicle in their garage, he saw the victim sucking the private part of the accused and then he caught hold the accused, informed others and thereafter handed him over to the Joint Action Committee. The said PW.4 also stated that he saw the underwear, one rupee coin near the victim and some eatables nearby. The defence could not rebut this evidence of the PW.4 during his cross examination. 25. The said PW.4 also stated that he saw the underwear, one rupee coin near the victim and some eatables nearby. The defence could not rebut this evidence of the PW.4 during his cross examination. 25. Further, another independent witness PW.6, the doctor who medically examined the accused on the date of occurrence of the incident, particularly stated that during his examination, the accused himself told him that he did not had sexual intercourse with the victim, but performed oral sex with her on the same morning. While cross examining this witness, the defence did not rebut this evidence of PW.6. 26. From the above, it is clear that the accused forcefully penetrated/inserted his male organ into the mouth of the victim girl threatening her not to move or shout and tried to insert his male organ into her private part removing her underwear, before he was caught by PW.4. Though the victim, i.e. the PW.2 and the independent/disinterested witnesses PW.4 & PW.6 were cross examined by the defence; but it failed to bring out any material contradiction to demolish their evidence and did not rebut the same and as such the evidences of said prosecution witnesses remained intact. 27. It is submitted on behalf the accused-appellant that the examination of the Investigating Officer of the case is necessary to arrive at a just decision of the case and due to non-examination of the Investigating Officer in the present case by the prosecution before the Trial Court, the entire trial is vitiated. It is true that examination of the Investigating Officer is necessary in a criminal trial. But in the present case, the accused-appellant failed to show as to how the evidence of the Investigating Officer of the case was necessary and/or material in the present case, as two independent prosecution witnesses PWs. 4 & 6 in their evidence before the trial court corroborated the unshaken evidence of the victim and therefore, such non-examination of the Investigating Officer of the case, does not affect the case in hand in any way. 28. 4 & 6 in their evidence before the trial court corroborated the unshaken evidence of the victim and therefore, such non-examination of the Investigating Officer of the case, does not affect the case in hand in any way. 28. It is also submitted on behalf of the accused/appellant that there is infirmity with regard to the evidence of the minor victim girl PW.2, being a child witness, and accordingly her evidence cannot be accepted, as there is all possibility of she being tutored and her evidence may not be free from vulnerability and as such no such weight should be given to her evidence for accepting and/or proving guilt of the accused. But after careful scrutiny, it is seen that the evidence of the victim girl is truthful & worthy of credibility and as because she is a child-witness, her evidence simply cannot be discarded, since her unshaken evidence has been duly corroborated by two independent and disinterested prosecution witnesses No. 4 & 6. The Judgments cited by the learned Amicus Curiae have been perused and duly considered and for the reasons stated above, the Court is of the opinion that those are not directly applicable in the present case. 29. From the discussions stated above, it is seen that prosecution failed to prove that the accused committed 'rape' as defined under Section 375 of the IPC prior to its amendment in February, 2013. As such, accused/appellant's conviction in the present case under Section 376(2)(f) IPC is not maintainable in law. 30. On the other hand from the aforesaid discussion and from the evidences recorded by the learned Trial Court it is amply proved and beyond reasonable doubt that the accused/appellant voluntarily had carnal intercourse with the victim minor girl in the morning hours on the date of occurrence by forcefully inserting his male organ into her moth by threatening her, against the order of nature and also tried to insert his male organ into her private part removing her underwear and the said act of the accused/appellant clearly attracts the culpability under Sections 377 of the IPC. 31. 31. It is seen from the Charge Sheet filed under Section 173 Cr.P.C. in the present case vide No. 92/2012 dated 04.09.2012, which is part of the present case that prior to the present incident, the accused-appellant was convicted and sentenced in 3 (three) criminal cases during the year 2002 to 2008 which were under Sections 376(2)(f)/511 IPC and Section 376(1) IPC. But as the Investigating Officer has not been examined by the prosecution during the trial of the case, the Court at this stage would not go to find out the veracity of the same. It is also seen from the impugned Judgment that on being asked by the learned Trial Court about those cases and his conviction & sentence, the accused/appellant answered in affirmative before him. Nonetheless, the accused-appellant himself, in his statement under Section 313 Cr.P.C. before the learned Trial Court, admitted that he was released from jail on 07.03.2012 and he did not pay fine. 32. For the reasons stated above, the impugned conviction under Sections 376(2)(f) IPC is modified and the accused-appellant is convicted under Section 377 of the IPC. Accordingly, the accused-appellant is sentenced to suffer Rigorous Imprisonment for a period of 7 (seven) years and to pay a fine of Rs. 5,000/- (Rupees Five Thousand), in default to suffer Rigorous Imprisonment for another period of 3 (three) months under Section 377 IPC. The period of detention, already undergone by the accused-appellant shall be treated as set off. Fees collected from the accused-appellant shall be given to the victim and if in the meanwhile she attains majority, otherwise to her legal guardian. 33. With the aforesaid modification of conviction and sentence, the appeal stands disposed of. 34. The Court acknowledges the assistance rendered by learned Amicus Curiae Mr. Victor L. Ralte, appearing for the accused-appellant. The Mizoram State Legal Services Authority is directed to pay him his legal remuneration of Rs. 7000/- (Rupees Seven Thousand only). Registry shall send down the Lower Court's Record with a copy of the Judgment. Registry shall also forward a copy of the Judgment to the accused appellant as well as to the Special Superintendent, Central Jail, Aizawl.