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2016 DIGILAW 141 (GAU)

Lamti Lego v. State of Arunachal Pradesh

2016-02-26

INDIRA SHAH, RUMI KUMARI PHUKAN

body2016
JUDGMENT : Indira Shah, J. 1. This is an appeal against the judgment and order dated 28.3.2014 passed by learned Addl. Sessions Judge, Pasighat, Arunachal Pradesh, in Psg. Sessions Case No. 234/13. By the said judgment the appellant herein was convicted under Section 376 (2) (f) I.P.C. and sentenced to undergo rigorous imprisonment for 10 years with fine of Rs. 50,000/-, in default of payment of fine further imprisonment for 5 months. The fine amount, on realization, was directed to be paid to the victim. Learned trial court also directed the Legal Service Authority for payment of adequate compensation to the victim as per the scheme provided under Section 357 A of Code of Criminal Procedure. 2. The prosecution case, in brief, is that the victim, a little girl, student of Class – III was raped by a teacher of her school. On 17.9.2008, while the victim was in her class room, the accused called her and took her to his house. The family members of the accused were not present inside the house. When she entered into the house, the accused closed the door and then committed rape on her. She cried out of pain and thereafter, she was released. He asked her not to disclose it to anybody. When she came back home, she narrated the incident to her mother and her mother informed her father, who in turn, lodged the FIR. On the basis of his FIR, Pasighat P.S. Case no. 92/2008 under Section 376 (2) (f) I.P.C. was registered. 3. During the investigation the victim as well as the accused were examined by a homeopathic medical officer. On completion of investigation, charge-sheet u/s 376 (2) (f) I.P.C. was submitted against the accused. The case being exclusively triable by the Court of Sessions, it was committed for trial. 4. The accused pleaded not guilty to the charge framed against him under Section 376 (2) (f) I.P.C. and claimed to be tried. The case was then transferred to the court of learned Additional Sessions Judge for trial and disposal. 5. The prosecution, in order to bring home the charge, altogether examined 13 witnesses. The accused in his examination under Section 313 Cr.P.C. admitted that he took the victim from school to his quarter on the alleged date and that when they reached his house, nobody was there. 5. The prosecution, in order to bring home the charge, altogether examined 13 witnesses. The accused in his examination under Section 313 Cr.P.C. admitted that he took the victim from school to his quarter on the alleged date and that when they reached his house, nobody was there. He also admitted that the father of the victim who had altercation with the accused, however, denied that he committed rape on the victim. He also examined two witnesses to prove his innocence. 6. The trial court on appraisal of the evidence came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt and, accordingly, held the accused-appellant guilty. 7. We have heard Mr. S.C. Biswas, learned counsel for the appellant and Mrs. M. Bora, learned Addl. Public Prosecutor, Government of Arunachal Pradesh. 8. It has been contended by Mr. S.C. Biswas that the medical report does not give positive opinion of rape on the victim. Moreover, the doctor who examined the victim was a Homeopathy doctor and his name was not even registered under the State Medical Council. Though the accused had taken the victim to his quarter but the prosecution failed to establish that he committed rape on her. 9. Mrs. M. Bora, learned Additional Prosecutor, Govt. of Arunachal Pradesh, however, submits that the trial court rightly held the accused guilty as there was direct as well as circumstantial evidence to prove the guilt of the accused. The learned judge has considered the entire evidence threadbare and there is no scope for interference. 10. There is no dispute that the victim was a student of Class III pursuing her studies in Govt. Middle School at Mebo and the accused was a teacher in the same school. The victim (P.W. 12) has narrated that in the year 2008, the day of Viswakarma puja, the accused called her and took her to his house. According to her, her teacher Moti Madan, her friends Anu Chetry and Geyong Lego had seen her going out with the accused. When she along with accused reached his house she found nobody in the house. The accused closed the door, undressed her and laid her down on the bed. She categorically stated that the accused committed rape on her and she out of pain cried. The accused after committing rape asked her not to disclose the incident to anybody. When she along with accused reached his house she found nobody in the house. The accused closed the door, undressed her and laid her down on the bed. She categorically stated that the accused committed rape on her and she out of pain cried. The accused after committing rape asked her not to disclose the incident to anybody. Thereafter, and there-from she went back to school, after school hour she came back to home and informed her mother about the incident. Her mother informed her father and her father lodged the FIR at Pasighat P.S. Though the victim was subjected to cross-examination, her evidence could not be shaken. 11. P.W. 1, is father of the victim. He deposed that when he came back from duty, one Mr. Prasad told him that something has happened to his daughter. He (P.W. 1) then asked his daughter but she could not tell him what had happened to her. His wife then informed him that the accused took their daughter to his quarter and committed rape on her. He stated that he immediately lodged a complaint and on the same evening he also filed an FIR at Pasighat Police Station. 12. Corroborating the evidence of P.W. 1, P.W. 2, Sri Punyo Tayeng, a teacher in the same school stated that the victim’ s father came to school and lodged a complaint against the accused for his misbehavior with his daughter. P.W. 4, Tahang Tamin another teacher in the same school stated that the informant complained that the accused committed rape on his daughter. 13. P.W. 5 is mother of the victim. She in her evidence stated that the victim told her that the accused took her to his quarter from school and committed rape on her. Thereafter, he asked her not to disclose the incident to anybody. P.W. 6 informed her husband. Nothing material has been elicited by cross-examination of these witnesses. 14. P.W. 7, Sri Harish Ch. Prasad, stated that he witnessed altercation between the accused and the informant in the school premises. P.W. 7 was not cross-examined at all. 15. P.W. 8, Miss Anu Chetry, was a student in the same school at the relevant point of time. She deposed that when she along with Gegom Lego went out of the class to go to toilet they found the victim sitting on a small foot path in between the class rooms. P.W. 7 was not cross-examined at all. 15. P.W. 8, Miss Anu Chetry, was a student in the same school at the relevant point of time. She deposed that when she along with Gegom Lego went out of the class to go to toilet they found the victim sitting on a small foot path in between the class rooms. On their query, she said that the accused Lomte Lego did something, which P.W. 8 could not understand and she took her to one of her teacher called Modi Medam. P.W. 8 was not cross-examined. 16. P.W. 9, Miss Geyong Lego although was declared hostile by the prosecution, she deposed that she along with Anu Chetry (P.W. 8) went out from their class and found the victim sitting in the small passage in between the class rooms. The victim was crying. She also stated that the victim told them that the accused called her and did something, which according to P.W. 9, she could not understand. The victim was then taken to one of her teacher Modi Medam. 17. Corroborating the evidence of P.W. 8 and P.W. 9, PW 12, Smti Yaken Lego, stated that two girls i.e. victim and Geyan Lego (P.W. 9) came to the class and called her. Geyan Logo told her that Lomte Lego sir (accused) had done wrong deeds to victim. On her query, the victim also told her that the accused had done bad act taking her to his house. P.W. 12 then went to Headmaster’s room and reported the incident to the headmaster. In her cross-examination, she stated that the victim was a small girl reading in class III. 18. Dr. Utpal Ranjan Sarkar (P.W. 10) stated that he examined the victim on police requisition on 19.9.2008. The accused was also medically examined by him as per police requisition. The doctor on examination of accused found that there was nothing to suggest that the accused was incapable of performing sexual intercourse. Apart from physical examination perennial swab of the accused was also collected and as per the laboratory report no living or dead spermatozoa was found. 19. On examination of the victim the doctor found right side of labia majora inflammated. No mark of injury was found and hymen was intact. Posterior part of vagina reddened and inflammated. No bleeding was also seen. 19. On examination of the victim the doctor found right side of labia majora inflammated. No mark of injury was found and hymen was intact. Posterior part of vagina reddened and inflammated. No bleeding was also seen. Vaginal swab of the victim was collected and analyzed in pathology department of general hospital. The pathological report of vaginal swabs shows few dead spermatozoa. 20. In the opinion of the doctor the victim was minor aged between 9 to 11 years and the victim had a sexual intercourse. In cross-examination, the doctor admitted that he is homeopathic medical officer having registration under homeopathic Medical Council. He also admitted that the inflammation can happen due to infection also. The dead sperm can be found even after 120 hours or five days and even after bath. 21. Learned counsel for the appellant contended that the victim was examined by homeopathic doctor and from his report it cannot be said that the victim was raped since the doctor found that inflammation can happen due to infection. The hymen of the victim was also found intact and there was no other external injury save and except inflammation. The oral evidence of the victim clearly and vividly depicts that she was subjected sexual intercourse. The victim was minor aged between 9 to 11 years and she clearly narrated how the accused committed rape. It is now well settled that if the virile member of the accused be within the labia of the pudendum of woman, no matter how little and even if there was no actual seminal emission it amounts to rape. Even if there was no actual penetration but merely superficial application of force of the male organ to the private parts of the victim, the accused may be convicted under Section 376 I.P.C. Mere vulval penetration without any vaginal penetration is sufficient to constitute rape. 22. No doubt medical evidence is very important in a trial of commission of rape. But the medical opinion is not the final say. Rape is not a medical diagnosis, it is a legal definition. Even where the opinion of the medical officer is that no rape appears to have been committed, the Court can hold otherwise where the other ocular evidence is trustworthy, credible and reliable. But the medical opinion is not the final say. Rape is not a medical diagnosis, it is a legal definition. Even where the opinion of the medical officer is that no rape appears to have been committed, the Court can hold otherwise where the other ocular evidence is trustworthy, credible and reliable. The victim of rape is no more considered to be an accomplish, her evidence stands almost at par with the evidence of injured witness and even without corroboration of her evidence accused can be convicted. 23. In the present case, the evidence of the victim has been corroborated by other witnesses. There is no evidence that there was any animosity between the witnesses and the accused. 24. The prosecution case is also corroborated by the accused to the extent that on the alleged date and time he took the victim from school to his residential quarter and his family members then were absent. D.W. 1, Shro Odiyang Tayeng the Gaon Bura of the village appears to be offended as he had expected that the complaint ought to be lodged before him. He only certified that he was brought up as an orphan, he is poor and is a good man. 25. D.W. 2, Opiam Lego’s evidence, lends support to the prosecution story. He had seen the accused and victim entering into the house of the accused. He only stated that he did not hear any hue and cry. Thus, the evidence of D.W. 1 and D.W. 2 is of no help to the accused. 26. Learned trial court has elaborately discussed and considered the evidence adduced by both the parties and we have found nothing to interfere with the conclusion arrived at by the trial court. 27. This appeal, being found devoid of merit, stands dismissed. 28. Return the LCR along with the copy of this judgment.