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Gauhati High Court · body

2015 DIGILAW 713 (GAU)

Sh. Lalruatsanga v. State of Mizoram

2015-06-09

L.S.JAMIR

body2015
1. Heard Mr. Rosangzuala Ralte, learned amicus curiae for the appellant. Also heard Ms. Linda L. Fambawl, learned Additional P.P., Mizoram. 2. This jail appeal is filed against the judgment and order dated 10.5.2013 passed by the learned Additional District and Sessions judge Aizawl Judicial District, Aizawl in Criminal Tr. 2460/2011 under section 376(2)(f)/365/506, IPC whereby, the accused appellant was convicted and sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs. 5,000 and in default to further undergo rigorous imprisonment for one month for the offence under section 365, IPC, to undergo rigorous imprisonment of eight years and to pay Rs. 20,000 and in default further rigorous imprisonment of six months under section 376(2)(F), IPC and also to undergo rigorous imprisonment for six months under section 506, IPC. The sentences so passed were to run concurrently. 3. An FIR dated 31.10.2011 was lodged by the informant (father of the prosecutrix) before the Vaivakawn Police Station alleging that on 31.10.2011 at around 4:00 p.m. to 5:00 p.m. his daughter/prosecutrix (five years) was abducted from their residence at Vaivakawn, Aizawl by the accused. He took her to Dinthar graveyard and threatened her and raped her. It was therefore, requested to take immediate legal action upon the accused. Basing on the FIR dated 31.10.2011 Vivakawn Police Station Case No. 132/2011 under section 365/376(2)(f) 506, IPC was registered. Thereafter, the investigation started and on conclusion of the investigation, charge sheet was submitted against the accused under section 365/376(2)(f)/ 506, IPC. 4. Charges under the aforesaid sections were framed, the charges were read over and explained to the accused in the Mizo language which was known to him to which the accused pleaded not guilty and claimed for trial. Accordingly, trial commenced. During the course of the trial, six witnesses were examined by the prosecution and four defence witnesses were also examined. The accused was also examined under section 313, Cr.PC. The prosecutrix was also subjected to medical examination. 5. For better appreciation of the case in hand, the depositions of the witnesses are also examined by this court. 6. PW1 is the father of the prosecutrix as well as the complainant. In his examination-in-chief, he stated that on 31.10.2011 in the afternoon when he was feeding chicks and while his wife was preparing dinner his daughter/prosecutrix was playing outside his house. 6. PW1 is the father of the prosecutrix as well as the complainant. In his examination-in-chief, he stated that on 31.10.2011 in the afternoon when he was feeding chicks and while his wife was preparing dinner his daughter/prosecutrix was playing outside his house. When his wife could not find her she went to the nearby shop to inquire. The shopkeeper informed his wife that her daughter was taken away by one person. When he got the information from his wife it was already dusk and he and his wife immediately ran towards Vaivakawn playground but they did not find their daughter in the playground. They continued looking for her in the surrounding area however, as they could not find their daughter, they made phone call to their close relatives. He along with some other person went to the surrounding area of Dawrpui Vengthar Cemetery, they did not find her for a long time and he kept in touch with his brother over telephone and as they could not locate his daughter, they decided to inform the matter to the YMA. However, before the matter was reported to the YMA, his brother informed him that the they have found his daughter and the accused at Dinthar Cemetery and therefore, he along with others went towards the Dinthar Cemetery. When he reached the place his brother was carrying his daughter and other youths who were with him had apprehended the accused. The accused was taken to the Vaivakawn Police Station and he has submitted his written FIR at the same time. He also deposed that his daughter/ prosecutrix was born on 27.1.2006. In cross-examination, he stated that he did not check the body or the private part of his daughter and that he had never known the accused before. 7. PW2 is the younger brother of the complainant. He also deposed on the same line as that of PW1. In his examination-in-chief, he has also stated that the prosecutrix looked very scared when he first saw her and he also found some grasses on her clothes and on her hair. In cross-examination, he stated that when he first saw the accused and the prosecutrix, the accused was sitting and the prosecutrix was standing behind him and when he saw the prosecutrix he noticed some stain on her pants which he suspected to be seminal stain. In cross-examination, he stated that when he first saw the accused and the prosecutrix, the accused was sitting and the prosecutrix was standing behind him and when he saw the prosecutrix he noticed some stain on her pants which he suspected to be seminal stain. He did not check the body of the accused nor did he check the private part of the prosecutrix. 8. PW4 is the owner of the shop who had seen the accused taking the prosecutrix away on that very day. In examination-in-chief, she stated that she saw the accused and the prosecutrix walking together and the accused was holding the hand of the prosecutrix. Initially she did not have any suspicion and she thought that they may be relatives. It was just after dusk that the mother of the prosecutrix came to her shop looking for her and she told that she saw the prosecutrix with one man and they proceeded downwards along the steps that was going down. She also stated that on being questioned about the identity of the person, she told her that she could remember that the person was not very tall with curly/wavy hair and she thought he was their relative. In cross-examination, she stated that she does not remember the date and month when she saw the prosecutrix with the man. She also told that after the accused was arrested she saw him at the Police Station. 9. PW5 is the Doctor who had examined the prosecutrix. In her examination-in-chief, she stated that she was posted as Medical Officer in Civil Hospital Aizawl from the year 2008 till date and on 31.10.2011 at about 9:30 p.m. requisition was received for the victim. She conducted investigation on the same night and she was assisted by one attendant. Before conducting examination, she asked the victim a brief history of the incident but she did not record the same in her report as there was no specific column made for the same. She stated that the victim had told her that at about 4 to 5 p.m. while she was playing with her toys the accused lured her by offering to buy her something and she followed him and he bought her a chocolate and took her to Dinthar Cemetery where he made her remove her under pant and touched her private part with his male organ. She further stated that on examining her genital area she found that her pubic was not developed and she found inflammation and redness on the right of her hymen near 3'O clock position of the hymen. There was discharge with mud present near the vagina. She had taken three vaginal smears for laboratory examination. Further, she stated that victim was sexually assaulted since there was inflammation and redness around her vagina. In cross-examination, she stated that at the time of examination she was informed that the victim had not changed her clothes and had not taken bath and she also found in her examination that there was discharge with mud present near her vagina. From her examination she found that there could have been partial penetration since there was redness and inflammation on her vagina. 10. PW6 is the I.O of the case. 11. The defence had also examined four witnesses. DW1 stated that the accused was his friend but they are not related to each other, he resides in the same colony with the accused and has been friend with the accused since adolescent. He knew that the accused sometimes consume liquor but he had never known of him indulging in any vices or causing nuisance to the society. The accused parents divorced when he was a small boy and since then he has been living with his mother. He has never known of the accused being admonished by leaders of NGO's within the locality for his behavior. The statement of DWs 2, 3 and 4 were also on the same line as that of DW No.1 and therefore their deposition are not discussed any further. Deposition of DW No.3 who is the prosecutrix shall be discussed later. 12. The accused was also examined under section 313, Cr.PC to which he had denied to all the questions that were put to him. 13. Learned amicus curiae appearing for the appellant submits that from a reading of the medical report it would show that there was inflammation and redness on the right side of her vaginal wall and that her hymen was intact. 13. Learned amicus curiae appearing for the appellant submits that from a reading of the medical report it would show that there was inflammation and redness on the right side of her vaginal wall and that her hymen was intact. He further submits that redness or inflammation on the right side of her vaginal wall could have been caused due to the prosecutrix playing on the ground over the sand and therefore, such finding could not be attributed to rape more particularly, when the hymen of the prosecutrix was intact. He also submits that apart from the medical report, the prosecution witnesses as well as the prosecutrix could not confirm that the accused had committed rape on the prosecutrix and therefore, the impugned judgment and order dated 10.5.2013 passed by the learned District and Sessions Judge, Aizawl Judicial District, Aizawl in Criminal Tr. 2460/2011 should be set aside and quashed. In support of his case, learned Amicus Curiae has relied upon the case of Narender Kumar v. State (NCT of Delhi), (2012) 7 SCC 171 wherein, he has stressed on the ratio laid down by the Supreme Court that since the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. He further submits that in the present case, the medical report is not conclusive and that the prosecution has failed to make out a water tight case calling for conviction and sentencing of the accused under the aforesaid sections of law. 14. Ms. Linda L. Fambawl, learned Additional P.P., Mizoram submits that the deposition of PW No.3/ prosecutrix is by itself trustworthy and clinches the case in favour of the prosecution. 14. Ms. Linda L. Fambawl, learned Additional P.P., Mizoram submits that the deposition of PW No.3/ prosecutrix is by itself trustworthy and clinches the case in favour of the prosecution. She also submits that from the medical report it is seen that there was discharge with mud present near her vagina with inflammation and redness on the right of her hymen near 3'O clock and, therefore, this would indicates that even if there may not have been complete penetration there was an attempt to rape the prosecutrix. A joint reading of the statement of the prosecutrix as well as the medical report would clearly indicates the ingredients of rape under section 376(2)(f) and, therefore, there is no necessity to interfere with the impugned judgment and order dated 10.5.2013 passed by the learned District and Sessions Judge, Aizawl Judicial District, Aizawl in Criminal Tr. 2460/2011. 15. I have considered the submissions forwarded by the learned counsel for the parties. 16. The medical report reads as under : "Findings: 1. Physical & Mental Health : Normal 2. Influence of alcohol or Drugs at the time of Examination: Absent 3. Seminal stains or other stain on clothes Brownish stain present over Anterior side of her pant 4. Marks of Violence on the body: Absent 5. Genetial examination: (a) Pubic Hair: Absent (b) Seminal Stain: 3 vaginal smears sent for presence of spermatozoa (c) Bruising/ Laceration of external genitalia: Inflammation redness present over right side of vaginal wall (d) Hymen: Present redness present near 3'O clock position of Hymen 6. Signs of infection (discharge or colour, etc.) with duration: Discharge with mud present near vagina 7. Laboratory report smear/discharge/Stains: 3 vaginal smears sent for presence of spermatozoa 8. X-Ray report for age determination (when age cannot be ascertained by Medical Officer) Signature of female witness/ Medical Officer Staff Nurse present during Civil Hospital, Aizawl Examination 17. The deposition of PW No.3/prosecutrix reads as under : "Preliminary questions: 1. What is your full name? Ans: Sarah Zohmingliani 2. Where do you live? Ans: Vaivakawn 3. How old are you? Ans: 7 years 4. Which class do you read? Ans: KG-II 5. Which School? Ans: SSA 6. Do you go to Sunday School? Ans: Yes 7. Is it good to tell lies? Ans: No 8. Do you ever tell lies? Ans: No 9. Did your father and uncle suddenly saw you at cemetery at night? How old are you? Ans: 7 years 4. Which class do you read? Ans: KG-II 5. Which School? Ans: SSA 6. Do you go to Sunday School? Ans: Yes 7. Is it good to tell lies? Ans: No 8. Do you ever tell lies? Ans: No 9. Did your father and uncle suddenly saw you at cemetery at night? Ans: Yes, at Dinthar Thalanmual 10. From the answers given by her, I find the same to be rational and find her competent to testify. She also understood that she has to speal the truth. Examination-in-chief by Addll. P.P. 1. What did the man say to you before he took you? Ans: He said he will buy me something 2. Did he buy anything for you? Ans: Yes, Chocolate 3. Where did he take you? Ans: Dinthar Thalanmual (cemetery) 4. What did he do to you? Ans: He removed my pant. He also removed his pant. 5. What did he do thereafter? Ans: He put his penis in my private part 6. Did you feel pain? Ans: Yes 7. Did you cry? Ans: Yes 8. Did he threaten you? Ans: He made me lie down. He said he will kill me. 9. Did he take long? Ans: Yes 10. Who found you? Ans: Pa Downga 11. Do you know his name? Have you seen him before? Ans: No, Cross-Examination 1. Did he buy anything else for you? Ans: He bought a chocolate. I did not like the taste 2. When you went to the cemetery did he carry you Or held you by his hands? Ans : He held me by his hands 3. Did he tell to remove your underwear? Ans: He removed it. The accused was briefly brought inside my chamber. She identified him and thereafter he was made to leave. The depositions are not recorded in the form of narrative as it was difficult due to her tender age." 18. This court has also considered the deposition of the Doctor who had examined the prosecutrix in her deposition. She clearly stated that she has found inflammation and redness on the right of side of her vaginal wall and there was discharge with mud present near the vagina. The statements of PW No. 3/victim has not been demolished by the defence in their cross-examination. In fact there was no semblance of any cross-examination. She clearly stated that she has found inflammation and redness on the right of side of her vaginal wall and there was discharge with mud present near the vagina. The statements of PW No. 3/victim has not been demolished by the defence in their cross-examination. In fact there was no semblance of any cross-examination. Further, examination of the deposition of the prosecutrix as already reproduced hereinabove would show that her deposition is firm without inviting any suspicion of being tutored. When the deposition of the prosecutrix is found to be trustworthy without being influenced from interested parties, this Court is bound to accept the deposition of the prosecutrix. In the case of Narender Kumar (supra), the Supreme Court has held as under : "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. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. 21. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject-matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may lend assurance to her testimony -- Vide Vimal Suresh Kamble v. Chlauverapinake Apal S.P. and Vishnu v. State of Maharashtra)." 19. In the opinion of the court, the present case is solely covered by the ratio laid down by the Supreme Court in the case of Narender Kumar (supra). Considering the deposition of the Doctor (PW5), the deposition of the prosecutrix (PW3) as well as the medical report, this court is of the considered opinion that the prosecution has made out a case. Considering the deposition of the Doctor (PW5), the deposition of the prosecutrix (PW3) as well as the medical report, this court is of the considered opinion that the prosecution has made out a case. Another important point of note is that the PW1 has deposed that the victim was born on 27.1.2006. This would indicate that on the day of incident, the victim/prosecutrix was below 6 years of age. This has not been contested by the defence at any stage. 20. The submission of the learned amicus curiae that her hymen was intact and that the redness or inflammation on the right side of her vaginal wall could have been caused due to the prosecutrix playing on the ground over the sand is not accepted by this court. In the facts and circumstances of the case, I do not find any infirmity in the judgment and order dated 10.5.2013 passed by the learned Additional District and Sessions Judge Aizawl Judicial District, Aizawl in Criminal Tr. 2460 / 2011 under section 376(2)(f)/365/506, IPC and accordingly this appeal is rejected. 21. Send down the LCR forthwith. 22. In appreciation of the services rendered by the learned amicus curiae, it is provided that he shall be entitled to Rs. 7,500 as hearing fees which shall be borne by the Mizoram State Legal Services Authority on production of a certified true copy of this judgment and order. Registry is directed to furnish a certified true copy of the same to the learned amicus curiae free of cost.