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2016 DIGILAW 167 (GAU)

Hrangchhawna v. State of Mizoram

2016-03-08

MICHAEL ZOTHANKHUMA

body2016
JUDGMENT : Michael Zothankhuma, J. Heard Mr. Lalfakawma, Amicus Curiae in Criminal Appeal No. 25 of 2015(J) and Mr. Johny L. Tochhawng, Amicus Curiae in Criminal Appeal No. 26 of 2015(J). Also heard Mrs. Linda L. Fambawl, Additional Public Prosecutor, Mizoram. 2. The two appeals have been filed against the judgment and order dated 24.7.2014 and order dated 31.7.2014 passed by the Additional Sessions Judge, Aizawl in Criminal Trial No. 1068/2011 convicting the appellants under Section 376(2)(g) IPC and sentencing them to undergo Rigorous Imprisonment for 4 (four) years and to pay fine of Rs. 10,000/- each and in default, another R.I for 2 (two) months. 3. The facts of the case in brief is as follows: On 16.5.2011 one prosecutrix of Tuirial Airfield lodged a written FIR at Bawngkawn Police Station to the effect that on 12.5.2011 (Thursday) at around 4:30 to 5:00 pm she had gone to the stream at Tuirial Airfield to take bath. Near the stream Henry and three of his friends were consuming liquor and they pulled her up while she was sitting on the edge of the stream. They removed her clothes and forcibly subjected her to sexual intercourse. On the basis of the said information, Bawngkawn P.S Case No. 149/2011 dated 16.5.2011 u/s 376(2)(f) IPC was registered and investigated into. Upon completion of investigation, having found prima facie case against the accused Lalkrosmawia, Hrangchhawna, Henry L. Muana and Lalremruata for the offence punishable u/s 376(2)(g) IPC, charge sheet was made against them and committed for trial. 4. Out of the four accused persons, the accused Henry L. Muana absconded and the accused Lalremruata could not be traced. Charge under Section 376(2)(g) IPC was framed against the appellants and the prosecution examined six witnesses. The accused persons were examined under Section 313 Cr.P.C. along with two defence witnesses. 5. The Trial Court has held that the evidence taken showed that the prosecutrix was made to wear her clothes by the accused persons as she could not even bathe herself or wear her clothes as the prosecutrix was drunk. Thus, keeping in view Clause fifthly of Section 375 IPC, any consent given by the prosecutrix to have sexual intercourse with the accused persons cannot be regard as consent and in that view of the matter, the Trial Court held that rape had been committed upon the prosecutrix. Thus, keeping in view Clause fifthly of Section 375 IPC, any consent given by the prosecutrix to have sexual intercourse with the accused persons cannot be regard as consent and in that view of the matter, the Trial Court held that rape had been committed upon the prosecutrix. The Trial Court also held that as the evidence showed that all the accused persons had sexual intercourse with the prosecutrix, the common intention of the accused persons to have sexual intercourse with the prosecutrix, who was incapable of giving consent amounts to gang rape was proved. 6. The Amicus Curiae Mr. Lalfakawma and Mr. Johny L. Tochhawng submit that there was consensual sexual intercourse between the four accused persons (including the appellants) and the prosecutrix. The Amicus Curiae also submits that there has been an unexplained delay of four days in filing the FIR, which vitiates the entire proceedings. 7. Mrs. Linda L. Fambawl, Additional Public Prosecutor submits that the evidence adduced by the prosecutrix and the other prosecution witnesses goes to show that the prosecutrix was drunk at the time of the incident and that the prosecutrix was unable to give consent. She also submits that the four accused persons including the appellants had sexual intercourse with the prosecutrix as is recorded in the evidence on record. The Additional Public Prosecutor submits that in view of the prosecutrix being incapable of giving consent, due to her intoxicated states, the sexual intercourse that occurred between the prosecutrix and the accused persons amounted to rape. The Additional Public Prosecutor also submits that as the evidence record shows that the accused took turns in having sexual intercourse with the prosecutrix, the question of common intention was clearly answered in the infirmity and thus, gang rape was proved. 8. I have heard the learned counsel for the parties and perused the LCRs. 9. The extract of the evidence of the prosecutrix is reproduced below: "On that day I was wearing a pant and the accused made me naked. I struggled against them and I also shouted. The accused Lalremruata was the first one who had sexual intercourse with me then Lalkrossmawia and thereafter Henry Muana and lastly Hrangchhuana. While one was having sexual intercourse with me the others remained nearby and watched us. They also put their male organ inside my mouth while the other had forceful sexual intercourse with me. The accused Lalremruata was the first one who had sexual intercourse with me then Lalkrossmawia and thereafter Henry Muana and lastly Hrangchhuana. While one was having sexual intercourse with me the others remained nearby and watched us. They also put their male organ inside my mouth while the other had forceful sexual intercourse with me. Re-examination by the ld. Addl/PP: I do not know the duration of the incident as I was drunk. The accused persons washed me up on being instructed by Pu C. Liana and Pu Lianmawia. Further cross examination by the ld. D/L: When the accused persons bathed I did no resist." 10. The extract of the evidence of PW2 is reproduced below: "Then I and Pu C. Liana proceeded the stream and when we reached the stream we saw four male persons sitting and there was one woman with them. When we reached the stream the woman was wearing her blouse but she was naked from her waist. She did not say anything. We rebuked the male persons and since the woman was soiled we told them to wash her with the water from the stream and also told them to put on her underwear for her. The woman was not in a position to walk and we told the accused to take her back. The accused took the woman back to the stream and we followed them. All of them were smelling of liquor and the woman was fully intoxicated and not in a position to walk. I presume that her inability to walk due to her drunkenness. I along with the accused took the woman up to her house and there was no one in her house and we left her after reaching her up to her house." 11. The extract of the evidence of PW3 is reproduced below: "On the day of the incident, while I was on my way back from my jhum field I saw many children looking towards the stream. I also watched and saw that near the stream there was one naked woman and four accused persons. I along with my friends watched from a distance and proceeded towards the stream since we felt that it was obscene especially for the children to see them. When we reached the stream, I noticed that the woman was Thangi and we told the accused persons to dress her up. I along with my friends watched from a distance and proceeded towards the stream since we felt that it was obscene especially for the children to see them. When we reached the stream, I noticed that the woman was Thangi and we told the accused persons to dress her up. Thangi was my close neighbour during the relevant time. Since she was also dirty, we told the accused persons to wash her up and told them to carry her up to her house. Accordingly, the accused persons took up to her house. In the evening we summon all the accused persons, the prosecutrix and her mother to YMA Hall. The reason we summon them was to admonish them and since we heard that the accused desired for a compromise we thought it was a good idea to comprise the matter. On that night the parties could not come to a compromise as a result after consulting the victim and her family we inform the police. I later learnt that the accused persons have been arrested. During investigation, I was called to the Aizawl P.S. and I think my statement was recorded in the said place. I know when we reached the stream the accused persons had sexual intercourse with the naked woman." 12. The evidence recorded by the Trial Court shows that the prosecutrix was drunk at the time of the incident and that all the four accused persons including the appellants had sexual intercourse with the prosecutrix. The evidence record is suggestive of the fact that the appellants had sexual intercourse with the prosecutrix with her consent. Though there is no proof that the consent of the prosecutrix was taken, the fact that the appellants did not run way when the prosecution witnesses appeared on the scene seems to suggest that no crime was committed. However, the evidence clearly shows that the prosecutrix was drunk and that she could not even clean herself up, wear her clothes or even walk. Thus, the evidence shows that due to the intoxicated state of the prosecutrix, she was incapable of giving consent and that she was unable to understand the nature and consequence of any alleged consent that she might have given. It is also to be noted that all the four accused persons had sexual intercourse with the prosecutrix. Thus, the evidence shows that due to the intoxicated state of the prosecutrix, she was incapable of giving consent and that she was unable to understand the nature and consequence of any alleged consent that she might have given. It is also to be noted that all the four accused persons had sexual intercourse with the prosecutrix. It is unreasonable for a married woman to accept sexual intercourse with four men in the river near the village, when they could be noticed. 13. Section 375 IPC Clause fifthly states 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:- 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." 14. The evidence adduced also shows that all the accused persons including the appellants had taken turns in having sexual intercourse with the prosecutrix. In view of the fact that the prosecutrix was incapable of giving her consent due to drunkenness, the alleged consent given by the prosecutrix comes swithin the provision of Clause fifthly of Section 375 IPC. The factum of common intention is apparent in view of the fact that all the accused persons (including the appellants) took turns in having sexual intercourse with the prosecutrix. 15. In view of the above reasons, I do not find any infirmity to the judgment and order dated 24.7.2014 passed by the Additional Sessions Judge, Aizawl in Criminal Trial No. 1068/2011 under Section 376(2)(g) IPC. 16. With regard to the order dated 31.7.2014 passed by the Additional Sessions Judge, Aizawl sentencing the appellants to Rigorous Imprisonment (RI) for 4(four) years and to pay a fine of Rs. 10,000/- each, in default, RI for 2 (two) months, I find that the reasons given by the Trial Court are sufficient reasons for imposing the sentence below the minimum 10 years term as required under Section 376(2)(g) IPC. 17. In view of the above reasons, the two appeals are dismissed. 18. This Court appreciates the assistance given by Mr. Lalfakawma, Amicus Curiae in Criminal APP. 17. In view of the above reasons, the two appeals are dismissed. 18. This Court appreciates the assistance given by Mr. Lalfakawma, Amicus Curiae in Criminal APP. No. 25 of 2015(J) and Mr. Johny L. Tochhawng, Amicus Curiae for Criminal APP. No. 26 of 2015(J). 19. The fees of the Amicus Curiaes is fixed at Rs. 7500/-(Rupees Seven thousand five hundred) each, which shall be paid by the Mizoram State Legal Services Authority, Aizawl. 20. Send back the LCRs.