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2016 DIGILAW 827 (GAU)

Rohmingthanga S/o Lalhuaia v. State of Mizoram

2016-09-01

MICHAEL ZOTHANKHUMA

body2016
JUDGMENT AND ORDER : Michael Zothankhuma, J. Heard Mr. Rosangzuala Ralte, learned Amicus Curiae and Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor Mizoram. 2. The prosecution story in brief is that an FIR was lodged by the prosecutrix on 8.11.2013 to the effect that, at around 2:30 A.M. of the same day, the accused had committed rape upon her on entering her room. The FIR was lodged at 6:00 P.M. on 8.11.2013 and accordingly Bawngkawn P.S. Case No. 203 of 2013 under Section 376(2)(f), 506 IPC was registered. The appellant could be arrested only on 11.11.2013 as he had absconded. 3. Charge under Section 376(2)(f) and Section 506 IPC was framed against the appellant on 1.7.2014, to which the appellant pleaded not guilty. Thereafter 5 out of the 8 (eight) prosecution witnesses and two Defense witnesses were examined. The examination of the appellant under Section 313 Cr.P.C. was done on 7.9.2015. Thereafter the appellant was convicted vide Judgment dated 23.11.2015 under Section 376(1) IPC and 506 IPC by the Court of the Addl. Sessions Judge, Aizawl in Crl. Tr. No. 1994 of 2013. The appellant was sentenced to undergo RI for 7 (seven) years and to pay a fine of Rs.1,000/-, in default, S.I for another 10 (ten) days. 4. The learned Amicus Curiae submits that a Declaration dated 15.3.2016 had been made by the prosecutrix in which, the prosecutrix has declared that she had falsely accused the appellant of rape. The other ground taken by the learned Amicus Curiae is that even if the Declaration dated 15.3.2016 made by the prosecutrix is found to be a false declaration, the same would suggest that the prosecutrix is not a reliable person and accordingly, the conviction of the appellant, solely on the basis of the prosecutrix evidence cannot be allowed to stand the scrutiny of law as she is an unreliable witness. The learned Amicus Curiae also submits that there are no signs of injury in the genital area of the prosecutrix, which would have enabled the Trial Court to come to a finding that rape had been committed by the appellant. Learned Amicus Curiae submits that there was consensual sex between the appellant and the prosecutrix as both of them used to have sex earlier. Learned Amicus Curiae submits that there was consensual sex between the appellant and the prosecutrix as both of them used to have sex earlier. He therefore, submits that the impugned Judgment dated 23.11.2015 and sentence Order dated 30.11.2015 passed by the Additional Session Judge, Aizawl in Crl.Trial No. 1994 of 2013 should be set aside. 5. Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor, on the other hand submits that the alleged declaration dated 15.3.2016 made by the prosecutrix is a false declaration. The learned Addl. Public Prosecutor submits that the evidence given by the prosecutrix during the trial clearly proves the fact that rape had occurred and that the evidence of the Doctor shows that there were marks of injury/violence on the body of the prosecutrix. The learned Addl. Public Prosecutor also submits that the evidence of the case I/O is to the effect that the appellant had absconded and he was arrested only on 11.11.2013, i.e. 3 (three) days after the incident. This clearly proved the fact that the appellant was conscious of the crime he had committed and accordingly proved his guilty frame of mind by absconding. The learned Addl. Public Prosecutor thus prays that the impugned Judgment and sentence should be upheld by this Court. 6. I have heard the learned counsel for the parties. In view of the fact that the appeal submitted by the appellant had enclosed the declaration dated 15.3.2016, allegedly written by the prosecutrix, this Court vide Order dated 20.7.2016 had issued notice to the prosecutrix to appear before this Court. 7. The prosecutrix appeared before this Court on 26.8.2016. The prosecutrix was asked by this Court as to whether she had written the said Declaration dated 15.3.2016,. The prosecutrix informed this Court that she had written the Declaration dated 15.3.2016. She however stated that the contents of the same was false. The prosecutrix stated before the Court that she had forgiven the appellant and wanted him to be released from Jail as the appellant was her mother's brother. As the statements made by the prosecutrix, in the Declaration dated 15.3.2016 is not under oath and as the prosecutrix has clarified that the contents of the declaration are false, this Court vide Order dated 26.8.2016 held that the said Declaration cannot be taken note of by this Court while deciding the appeal. 8. As the statements made by the prosecutrix, in the Declaration dated 15.3.2016 is not under oath and as the prosecutrix has clarified that the contents of the declaration are false, this Court vide Order dated 26.8.2016 held that the said Declaration cannot be taken note of by this Court while deciding the appeal. 8. With regard to conviction of an accused solely on the basis of the statement of the prosecutrix, the Apex Court in the case of Narender Kumar Vs. State (NCT of Delhi) reported in (2012) 7 SCC 171 has held as follows:- "It is 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." 9. In the present case there is nothing to show that the evidence of the prosecutrix does not inspire confidence. The evidence of the prosecutrix is to the effect that the prosecutrix came to Aizawl in search of work from her Village Rawlbuk. As she did not have a place to stay in Aizawl, the appellant stayed in the house of the appellant, whom her mother considered to be her brother, as they both belonged to the same clan. The appellant returned home from work on 7.11.2013, at around 6 PM. As the appellants' wife was not at home, the appellant called the appellants' wife over phone, who then told the prosecutrix that she was fed up with the appellant getting drunk and she had gone out to avoid him. The appellants' wife told the prosecutrix to have her meal. The prosecutrix had her meal and went to her room at around 9 PM. At around 2:30 AM, the prosecutrix found the accused lying on her bed in her room. The main door of the house was locked and a bench had been put across the door to prevent her from escaping. The appellant strangled her throat when she tried to get up. At around 2:30 AM, the prosecutrix found the accused lying on her bed in her room. The main door of the house was locked and a bench had been put across the door to prevent her from escaping. The appellant strangled her throat when she tried to get up. The prosecutrix then tried to get hold of her Mobile Phone, which the appellant snatched away and thereafter threw and damaged it. The appellant thereafter over-powered the prosecutrix and raped her. The appellant then took a hammer and chisel and threatened to beat her if she tried to run out. The appellants' wife came into the house when the appellant tried to rape the prosecutrix for the second time. The prosecutrix told the appellant's wife about the incident. The prosecutrix also stated that the reasons for lodging a late FIR at 6:00 PM on the same day was due to the fact that the prosecutrix had been asked by the appellant's wife to wait for the younger brother of the appellant, who was going to reach Aizawl from Saiha. The prosecutrix could not wait any longer for the appellant's brother and accordingly had lodged FIR by herself at 6:00 P.M. The prosecutrix also stated in her evidence that during the stage of giving evidence, the appellant had called her on her mobile phone and told her not to appear before the Court. 10. The deposition of PW No.2, i.e. a neighbour of the appellant is to the effect that the appellant's wife stayed in her house on the fateful night as she was told by the appellant's wife that she was fed up with the drunkeness of the appellant. At around 3:00 A.M, the appellant's wife received a phone call that the daughter of the appellant from his previous wife had arrived from Myanmar. As it was the first visit of the appellant's daughter to Mizoram, the appellant's wife had gone to bring back the appellant's daughter from the Bus stand. The PW No.2 stated that the appellant's wife told her that when the appellant's wife went back from the Bus stand, the appellant's wife saw that the main door of her house was open. The appellant's wife, on peeping through the door saw the prosecutrix crying. The PW No.2 stated that the appellant's wife told her that when the appellant's wife went back from the Bus stand, the appellant's wife saw that the main door of her house was open. The appellant's wife, on peeping through the door saw the prosecutrix crying. The appellant's wife gave a signal to the prosecutrix to come out and the prosecutrix came out and told the incident to the appellant's wife. PW No.2 also stated that the prosecutrix told her that she was sexually assaulted by the appellant. PW No.2 also stated that she saw some injuries on the prosecutrix and noticed that she had some difficulty in swallowing. On asking whether the prosecutrix could forgive the appellant, the prosecutrix replied in the negative. PW No.2 also stated that the prosecutrix went to the Police to file an FIR. 11. The evidence of the Doctor (PW No.3) is to the effect that there were a few marks of violence on the body of the prosecutrix but there was no visible injuries on examination of the genital area of the prosecutrix. The hymen was also absent. In the case of O.M. Baby (Dead) Vs. State of Kerela reported in (2012) 11 SCC 362 , the Apex Court has held that the absence of injuries or mark of violence on the victim may not be decisive, particularly, in a situation where the victim did not offer any resistance on account of threat or fear meted out to her, as in the present case. 12. The evidence of PW No.4, who is the Judicial Magistrate, 1st Class, is to the effect that he had recorded the statement of the victim in his Chamber. 13. The evidence of the case I/O (PW No.5) is to the effect that the victim was a divorcee with 3 (three) children. PW No.5 also stated that the appellant admitted his guilt during the interrogation. The case I/O also stated that he could arrest the appellant only on 11.11.2013 as the appellant had absconded from the date of the incident. 14. On going through the evidence of the Defense Witness No. 1 (appellant) and DW 2 (brother of the appellant), I find that the evidence of DW No.2 is ambiguous and nothing can be derived there from. 14. On going through the evidence of the Defense Witness No. 1 (appellant) and DW 2 (brother of the appellant), I find that the evidence of DW No.2 is ambiguous and nothing can be derived there from. However, in respect of the evidence of DW 1, who states that he used to have a sexual relationship with the prosecutrix at Lunglei and Aizawl, and that the sexual intercourse had occurred on the fateful day with consent of both the parties, the same cannot be accepted by this Court as the appellant had absconded from the date of the incident. I also find that the claim of the appellant that he had consensual sex with the prosecutrix in Lunglei and Aizawl had not been put to test in the cross-examination of the prosecutrix. 15. On going through the evidence on record, I find that the fact of the appellant absconding from the date of the incident is relevant as it infers to the guilt of the appellant. There was no reason for the appellant to have absconded if he had not committed a crime. Coupled with the above, this Court does not find any reason not to disbelieve the statement of the prosecutrix. Thus by applying the law laid down by the Apex Court in Narendra Kumar (supra), this Court also finds the appellant guilty of having committed the crime of rape. 16. On going through the examination of the accused under Section 313 Cr.P.C, I find that the appellant has stated that he had sexual intercourse with the victim with her consent. However, the fact that the appellant was arrested on 11.11.2013, i.e., after three days from the date of incident, is pointer to the fact of his guilt. In view of the reasons stated above, this Court does not find any infirmity with the impugned Judgment dated 23.11.2015 and Sentence Order dated 30.11.2015 passed by the learned Addl. Sessions Judge, Aizawl in Criminal Trial No. 1994/2013. 17. The appeal is accordingly dismissed. 18. In appreciation of the assistance rendered by the learned Amicus Curiae, his fees is fixed at Rs. 7500/-, which shall be paid by the State Legal Services Authority. 19. Send back the LCRs.