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2017 DIGILAW 1131 (GAU)

Lalramenga v. State of Mizoram

2017-08-18

M.R.PATHAK

body2017
JUDGMENT : M.R. Pathak, J. 1. This Criminal Appeal has been preferred from jail by the accused appellant, Sh. Lalramenga against the judgment of conviction dated 19.07.2016 and order of sentence dated 25.07.2016 passed by the Trial Court, i.e., the Court of learned Additional Sessions Judge, Lunglei Judicial District, Lunglei in Criminal Trial No. 39/2016 arising out of Lunglei Police Station Case No. 24/2016, by which the appellant has been convicted under Section 376(2)(1) IPC and sentenced to suffer Rigorous Imprisonment for a period of 10 years with a fine of Rs. 10,000/- in default Rigorous Imprisonment of 6 months. The criminal case in hand was set in motion when the K.L. Chhawnkima lodged an FIR on 13.02.2016 before the Officer-in-charge of Lunglei Police Station alleging that on 06.02.2016 around 2:00 PM the victim, her daughter was taken outside by one Lalmalsawma and when both of them were at the street in front of the old building of State Bank of India, the accused Ramenga of Vengthar took her to his house and had her dinner there, took her at night towards Sairep road made her to drink alcohol and had committed rape on her during the night and left her at the Sairep road. His daughter who is mentally challenged proceeded towards her uncle's resident at Sairep and reached her uncle's house at around 6:30 AM on 07.02.2016. Accordingly, Lunglei P.S. Case No. 24/2016 was registered under Section 376(2)(1) IPC. The concerned Investigating Officer visited the place of occurrence, arrested the accused appellant forwarded both the victim and the accused for their medical examination and recorded the statement of the witnesses acquainted with the incident. After completion of the investigation, the Officer-in-Charge of the Lunglei Police Station along with the medical records and other relevant documents submitted the charge sheet in said Lunglei P.S. Case No. 24/2016 vide No. 41 dated 01.03.2016 against the accused appellant finding prima facie materials with regard to his involvement for the offence under Section 376(2)(1) IPC. 2. The accused appellant was arrested in said Lunglei Police Station on 13.02.2016 and now he is serving the sentence. 3. Since Section 376(2)(1) IPC is exclusively triable by the Court of Sessions, the said Lunglei P.S. Case was committed to the Court of Sessions on 17.03.2016, which was registered as Criminal Trial No. 39/2016. 2. The accused appellant was arrested in said Lunglei Police Station on 13.02.2016 and now he is serving the sentence. 3. Since Section 376(2)(1) IPC is exclusively triable by the Court of Sessions, the said Lunglei P.S. Case was committed to the Court of Sessions on 17.03.2016, which was registered as Criminal Trial No. 39/2016. The learned Sessions Judge, Lunglei by his order dated 17.03.2016, itself transferred the said Criminal Trial No. 39/2016 to the Court of learned Additional Sessions Judge, Lunglei Judicial District, Lunglei for its trial and disposal. The Trial Court accordingly on 4.4.2016 framed charge under Section 376(2)(1) IPC against the accused appellant which was read over and explained to him, to which the appellant pleaded not guilty and claimed to be tried and accordingly, the trial of the Case began. 4. In order to bring home the charges, against the accused appellant, the prosecution examined seven witnesses on its behalf. The defence cross-examined the prosecution witnesses. The statement of the accused/appellant under Section 313 Cr.P.C. was recorded on 27.05.2016, where he denied all the allegations lodged against him and submitted that he will adduce Defence Evidence. Thereafter, three defence witnesses were examined and they were cross examined by the prosecution. 5. The learned Additional Sessions Judge, Aizawl upon appreciation of the evidences adduced by both the prosecution & the defence, recorded the impugned judgment of conviction and sentence as aforesaid and hence, the present appeal. 6. Heard Mr. Vanlalnghaka, learned Amicus Curiae, for the accused appellant and Mr. A.K. Rokhum, learned Public Prosecutor representing the State. 7. Mr. Vanlalnghaka, learned Amicus Curiae for the appellant stated that there is no eye witness to the incident and it is mere allegation against the accused. He further stated that, there is also no direct evidence and enough materials to prove and establish the guilt of the accused under the charged section. It is also submitted that the victim is of unsound mind and on the basis of her sole testimony the accused, he cannot be convicted as alleged. It is also submitted by the learned Amicus Curie that for said reasons and since the prosecution have failed to establish the guilt of the accused beyond reasonable doubt, the impugned judgment of conviction and sentence against the accused appellant should be set aside and quashed. 8. On the other hand Mr. It is also submitted by the learned Amicus Curie that for said reasons and since the prosecution have failed to establish the guilt of the accused beyond reasonable doubt, the impugned judgment of conviction and sentence against the accused appellant should be set aside and quashed. 8. On the other hand Mr. Rokhum, learned public prosecutor supporting the judgment and order of conviction and sentence, submitted that prosecution has placed sufficient materials to prove the guilt of the accused. 9. 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 and sentence, let me briefly scrutinize the evidence on record. 10. PW 1, K.L. Chhawnkimi the informant in his examination-in-chief stated that his eldest daughter, the victim was born in the year 1992 and is mentally and physically challenged girl where her mental status is just like a child and cannot walk straight, often stumbles and limps. On 06.02.2016 when he reached home after work, the victim was not in his house and her mother, his wife was in search of her. Even when she did not return at the time of taking dinner, both he and his wife went out in search of her and also went to the house of the accused, since on 04.02.2016 the accused intoxicated the victim and sexually assault her. But on the said date of the incident on 06.02.2016 she could not be found around the house of the accused when they were searching for her and he looked for his daughter whole night, but did not find her and it is only in the next morning he received the message from his niece from Sairep Village that the victim is with them. As such, he did not have any suspicious thinking and thought that she might have gone to her uncle's house at Sairep. He also stated that she returned home on the next date with her aunt and that it is only from her aunt he could learnt about the entire incident. During his cross examination PW-1 stated that he did not see the accused on 06.02.2016 at all and that he is acquainted with the accused, who often come to their house and that regarding the incident he had the knowledge from his daughter and her aunt. 11. During his cross examination PW-1 stated that he did not see the accused on 06.02.2016 at all and that he is acquainted with the accused, who often come to their house and that regarding the incident he had the knowledge from his daughter and her aunt. 11. PW-3, Lalngurpuii, the mother of the accused also stated that her daughter, the victim is physically and mentally challenged and from the victim she could come to know that the accused and the victim consumed liquor on 04.02.2016 and they indulged in sexual intercourse. As such, she made up her mind to become more careful with her said daughter. But on 06.02.2016 the date of the incident one Lalmalsawma entered their house in search of her son Ruata and left as he did not find his son. As she was scared by the previous incident of 04.02.2016, she went out to find said Lalmalsawma on the pretext of going to a shop, thinking that when said Lalmalsawma entered their house, he might have given some signal to her said daughter and finding Lalmalsawma busy with the workers in his house, she was relieved and returned to her home and started washing her clothes outside her house. But after some time when she entered her house, she did not find the victim, her eldest daughter inside the house and went out to look for her. Not finding her nearby she returned and told her husband about it who already reached home. As she did not return till they had dinner, both of them went out in search for her but could not find her and only on the next morning, when they received SMS from Sairep they could come to know that the victim is with her uncles' family (father's brother) and returned home only on the next day with her aunt Lalruatkimi (PW-4). She also stated that when she enquired from her daughter the victim stated that when Lalmalsawma came to their house he called her but she did not went out, but later when she went out to drink water said Lalmalsawma again called her and told her to go near the Bank and when she went there, she found the accused waiting. She also stated that her daughter told her that the accused took her and both of them consumed liquor and late in the night, when it was time to sleep, the accused took her out and they went to the road to Sairep Village and from the second shed onwards the accused had sexual intercourse with her and made her to drink liquor, though she found it difficult to swallow and also forced her to drink and throttled her too. The said PW-3 also stated that the victim complained to her that she is still having pain on her neck and also shown her upper part of body removing her cloths to show that she was sexually assaulted and finding cut in-jury in around her breast, the PW-3 applied ointment on it. The PW-3 categorically stated that since the accused and they are neighbors, after deliberation they thought it would be good to send emissary to them, which the accused took it very lightly and though they waited for him and as the accused did not come forward asking for pardon, subsequently they filed FIR. During her cross examination said PW-3 stated that she did not see the accused taking out the victim and in fact it was Lalmalsawma who took her out. She also denied the suggestion that the culprit who violated her daughter is none other than the accused and injury sustained by the victim was healed with medicine she applied. 12. PW-4, lalruatkimi aunt of the accused who stays in Sairep in her examination-in-chief stated that early in the morning on 07.02.2016 the victim came to their house at Sairep and as the victim on earlier occasions never came to their house alone, she enquired with whom she had come, to which the victim replied that she came with Ramenga, the accused. Pw-4 stated that she then asked her when did the victim set out in the morning to which she replied that they came at night and then she enquired where Ramenga is, to which the victim replied that before reaching the Village (Sairep), he left saying that he will return. Pw-4 stated that she then asked her when did the victim set out in the morning to which she replied that they came at night and then she enquired where Ramenga is, to which the victim replied that before reaching the Village (Sairep), he left saying that he will return. She also stated that the victim also told her that she is scared of Ramenga and hearing that said PW-4 told the victim to remain calm and asked her why she is afraid of the accused, she replied that the accused forced her to lie down in the ground and throttled her neck compelling her to drink liquor. The PW-4 in her evidence also stated that as the victim was found to be soiled and dirty she bath her and during her bathing PW-4 noticed cut injury on her breast area and on being asked about the said injury, the victim replied that the accused sexually assaulted her. The PW-4 also stated that she applied some oil over her said injury and found her to be very scared of the accused and next morning she came to the victim's house along with her and on her way back the victim showed her the spots where she was sexually assaulted by the accused and on reaching the victim's house said PW-4 informed the parents of the victim about the said incident with regard to the victim. During her cross examination the PW-4 stated that she had learnt about the accused Ramenga only from the victim and denied the suggestion that some other person, other than the accused had brought the victim to their house. 13. PW-6, R. Malsawmdawngzuala, Judicial Magistrate First Class Lunglei Court in his evidence-in-chief stated that he recorded the statement of the victim under Section 164 Cr.P.C. on 16.02.2016. In his cross examination said PW-6, Judicial Magistrate First Class, Lunglei stated that the victim in her statement under Section 164 Cr.P.C. (Exhibit P-BT) stated that the victim was having an affair with the accused. 14. PW-7, C. Ramnunmawii, Inspector of Police in her examination-in-chief stated that with regard to the incident of 06.02.2016 the FIR was lodged on 13.02.2016 on the basis of which Lunglei PS. Case No. 24/2016 under Section 376(2)(1) IPC was registered and on being endorsed to her by the OC of Lunglei Police Station she conduct the investigation of the case. PW-7, C. Ramnunmawii, Inspector of Police in her examination-in-chief stated that with regard to the incident of 06.02.2016 the FIR was lodged on 13.02.2016 on the basis of which Lunglei PS. Case No. 24/2016 under Section 376(2)(1) IPC was registered and on being endorsed to her by the OC of Lunglei Police Station she conduct the investigation of the case. She also stated that during investigation of the case, she recorded the statements of the informant and other witnesses at Lunglei, arrested the accused, forwarded the victim for medical examination and that the medical report reveals that the victim's hymen was not intact and that she was mentally instable. Said PW-7 also stated that the statement of the victim was recorded by Judicial Magistrate. The PW-7 who arrested the accused on 13.02.2016 stated that during interrogation said accused denied his involvement with regard to the incident of 06.02.2016 but admitted that he indulged with sexual relation with the victim on 04.02.2016 and finding prima facie case under Section 376(2)(1) IPC, the charge sheet was filed in the case. During her cross examination PW-7 stated that being competed she filed the charge sheet in the case and that during investigation she found that no one saw the accused near Sairep Village as it was early in the morning and denied the suggestion that during investigation she did not find the accused sexually assaulted by the victim. 15. PW-5, Dr. Lalhlimpuii Muray, who medically examined the victim, in her examination-in-chief stated that on receipt of requisition from police for medical examination of the victim, against whom there was a complaint of sexual assault on 06.02.2016, she examined the victim and on her genital examination it was found that her hymen was not intact and that as the victim was brought nearly one week after the incident, there was no sign of seminal stain and there were no bruising or laceration of internal genital, nor any sign of infection or discharge. The said PW-5, the Doctor found that the victim is mentally incapable because she could not explain the incident properly and moreover her speech was not clear and that it is the victim's mother who had explained the incident to her. She also opined that even if the victim had sustained any injury, as she was brought for examination after a week's time, the injuries like bruising had already been healed. She also opined that even if the victim had sustained any injury, as she was brought for examination after a week's time, the injuries like bruising had already been healed. In her cross examination said Doctor, PW-5 stated that during her examination of the victim she did not find any marks of violence or seminal stain on the victim and that her rupture of hymen was an old rapture. 16. PW-2, the victim/prosecutrix at the time of her examination she was asked some questions by the Trial Court and her statement was recorded thereafter. In her examination-in-chief the victim stated that she knew the accused Lalramenga. In her cross examination she stated that regarding the incident she had told her aunt at Sairep and that she went to Sairep with the accused and also admitted that she had fallen for the accused. She also stated that the accused strangled her throat and forced her to drink liquor and that it is her aunt (P W-4) is the first to whom she had revealed the incident and stated that she was sexually assaulted, but denied the suggestion that it is other person and not the accused who had sexually assaulted her. She also stated that the accused left her saying that he will return. In her cross examination the victim also stated that her mother told him what to say in the Court and she wants the accused to be behind the bars. 17. In her re-examination by the prosecution she deposed that it is Malsawma who took her out of their house and left her with the accused in front of the Bank, then the accused took her to his house, had dinner in his house and was also sexually assaulted by him many times and further that her mother told her to speak the truth in the Court. 18. The Trial Court observed that said PW-2 is restless, her speech is not clear and there was frigidity in her behavior, but found that the victim can express what she wants. 19. 18. The Trial Court observed that said PW-2 is restless, her speech is not clear and there was frigidity in her behavior, but found that the victim can express what she wants. 19. It is also seen from the statement of the victim recorded under Section 164 Cr.P.C. (Exhibit P-III) recorded on 16.02.2016 by learned Judicial Magistrate, First Class, Lunglei where she stated that she made the accused outside the Bank, then headed for his house, where he asked her to drink liquor and when she refused he throttled her neck and forced her to drink liquor, had sexual intercourse with her forcefully and being scared of him she caved in and followed his instructions. She also stated that both of them went to Sairep and on their way to Sairep in various Jhum Huts the accused raped her many a times and though she struggled but could not defend herself with the male person. She also stated on reaching the outskirts of the Sairep Village, the accused left her promising to pick her up again and in the morning she went to the house of her paternal uncle and told everything to her aunt. She also deposed that though the accused is her boyfriend she did not give him any consent to sleep with her and that the accused forcibly had sexual intercourse with her. She also deposed that they waited for long after emissary was sent to the accused house waiting for the accused to apologize for the incident, but as the accused did not apologized, thereafter FIR was lodged at Lunglei Police Station. 20. The DW-1, C. Lalrinchhani in her examination-in-chief deposed that she knows that accused since childhood who is a person of a good character and uses his time for the church service and that he is a musician in the church service. She also stated that the accused was in his house on the date of the incident on 06.02.2016 during 12:00 noon to - 4:00 pm as he was found engaged in domestic work while she was preparing beetle nut in their house. Even on the night when she visited the accused's house, she knew that the accused was present in his house. Even on the night when she visited the accused's house, she knew that the accused was present in his house. In her cross examination she admitted that she left the house of the accused around 7-8 pm and she was not aware what the accused had done on that night after she left his house. 21. DW-2, H. Lalhmangaiha in his examination-in-chief stated that the accused is his brother-in-law and on the date of the incident he was in the house of the accused and found him engaged in domestic works and even had dinner with him and as he and his wife spent the night in the house of the accused found the accused at home in the night. During his cross examination, said DW-2 sated that he did not made similar statement before the Investigating Officer in the case and that he is aware that the victim had fallen for the accused and that for him the prosecutrix is of normal health as she had earlier elope with his relative. 22. DW-3, R. Lalluaiain his examination-in-chief stated that the accused Lalramenga is his first cousin and that he is frequently visiting accused's house and also stated that even on 06.02.2016, he visited the house of the accused and found him doing domestic work and stated that he went to the house of the accused around 10:00 am and left him during the mid-day. But in his cross examination by the prosecution, said DW-3 stated that he visited the accused briefly at night and left his house about 9:00 pm and he doesn't know what the accused did or what happen thereafter, stated that he did not make similar statement before police during investigation of the case. 23. It is seen that DW-1 and DW-3 did not state the presence of DW-2 with his wife in the house of the accused on the date of the incident though both of them stated that they visited his house as such Court observes that the statement of defence witnesses are not reliable and moreover they are interested witnesses being relatives. 24. In the present case on her medical examination, the Doctor PW-5 excepting that the hymen of the victim was not intact, where rupture was an old one, did not find marks of violence on her person. 24. In the present case on her medical examination, the Doctor PW-5 excepting that the hymen of the victim was not intact, where rupture was an old one, did not find marks of violence on her person. Rather found her to be physically fit but mentally incapable, who could not explain the incident properly, where the incident was explained to the said doctor by victim's mother. The Trial Court after recording her deposition, observed that the victim is restless, her speech is not clear, frigidity in her behavior but found that she could express what she wants. It is also seen that the victim in her statement under Section 164 Cr.P.C. stated that though the accused is her boyfriend she did not give him any consent to sleep with her. PW-4 the Magistrate who recorded Section 164 Cr.P.C. statement of the victim in his evidence have also clarified that as per her said statement she was having an affair with the accused. But the victim before the Trial Court denied the fact that she had fallen for the accused. The Court also observed that the victim before the Trial Court stated that because of sexual intercourse there was bleeding on her private part. But neither the Doctor, PW-5 found any injury on her private parts, nor the aunt, PW-4 who had given her bath found any injury on her private part. Further, said victim also did not disclose about the same before her mother nor before the Magistrate while recording her statement under Section 164 Cr.P.C. 25. Considering all these and finding contradictory statements of the victim, the Court is of the view that her testimony alone being not corroborated by evidence of other witnesses, is not enough to prove the guilt of the accused and the Court is of the opinion that the prosecution failed to establish the guilt of the accused beyond all reasonable doubt. 26. Accordingly this appeal is allowed. 27. The impugned judgment of conviction dated 19.07.2016 and order of sentence dated 25.07.2016 passed by the learned Court of Additional Sessions Judge, Lunglei Judicial District, Lunglei in Criminal Trial No. 39/2016 arising out of Lunglei Police Station Case No. 24/2016, by which the accused appellant was convicted under Section 376(2)(1) IPC and the sentence of Rigorous Imprisonment for a period of 10 years with a fine of Rs. 10,000/- in default Rigorous Imprisonment of 6 months was imposed upon the accused appellant Sh. Lalramenga, is hereby set aside and quashed and he is acquitted from the said charge leveled against him in the said Criminal Trial No. 39/2016 arising out of Lunglei Police Station Case No. 24/2016. Further, the appellant herein is directed to be released and set at liberty forthwith, if not wanted in any other case. 28. Registry shall inform the Superintendent of District Jail, Lunglei to release the appellant herein forthwith in the above noted case, with a copy of this Judgment and Order. 29. Before parting with the case, the assistance rendered by the amicus curiae, Mr. Vanlalnghaka, appearing for the accused appellant is acknowledged and the State Legal Service Authority, Mizoram shall pay him his legal remuneration of Rs. 8,000/- on raising a bill. Registry shall return the records of the case to the Court of learned Sessions Judge, Lunglei Judicial district, Lunglei along with a copy of this Judgment and Order. Appeal Allowed.