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2018 DIGILAW 694 (GAU)

C. Alberta v. State of Mizoram

2018-04-24

MICHAEL ZOTHANKHUMA

body2018
JUDGMENT AND ORDER : 1. Heard Mr. Aldrin Lallawmzuala, Amicus Curiae. Also heard Mr. A.K. Rokhum, Public Prosecutor. 2. The appellant has prayed for setting aside the Judgment & Order dated 20.10.2017 and Sentence Order dated 24.10.2017 passed by the learned Additional Sessions Judge, Siaha in SR No. 15/2017, arising out of Siaha P.S. Case No. 46/2017 dated 18.05.2017, by which the appellant was convicted for rape under Section 376 (1) IPC and sentenced to undergo 15 years R.I with a fine of Rs. 10,000/-, i.d. 100 days R.I. 3. The prosecution case in brief is that on 18.05.2017, an FIR was submitted by the victim before the OC, Siaha P.S stating that in the evening of 30.04.2017, her friend Smt. Maengi had invited her out for a ride in Alberts car. Thereafter, they bought one bottle of liquor and headed towards Maisatla. They stopped on the way and drank the liquor. Thereafter, Albert pulled/dragged the victim out of the car and stripped of her clothes including her underwear. She was scared and shouted loudly, after which she blacked out. The FIR also states that the victim girl did not know if the appellant had sexual intercourse with her. 4. In view of the FIR dated 18.05.2017 submitted by the victim, investigation was conducted and the OC having found a prima facie case of rape against the appellant, submitted a charge sheet. The further case of the prosecution was that the public had caught hold of the appellant, the victim and the co-accused and they were handed over to the Police, who in turn sent them for medical examination on 30.04.2017 itself. Thereafter, all the three persons were allowed to go home. The letter dated 30.04.2017, issued by the OC, Siaha Police Station to the Medical Officer, Civil Hospital Siaha had requested that the appellant should be medically examined whether he could perform sexual intercourse. The medical examination report of the appellant done by the Medical Officer on 30.04.2017 is to the effect that the appellant had stated that he had intercourse with the co-accused but not with the victim. It also stated that the appellant was conscious. The medical report of the victim girl on 30.04.2017 states that she had consumed alcohol. 5. Charge under Section 376 (1) IPC was framed against the appellant by the Trial Court on 28.08.2017. It also stated that the appellant was conscious. The medical report of the victim girl on 30.04.2017 states that she had consumed alcohol. 5. Charge under Section 376 (1) IPC was framed against the appellant by the Trial Court on 28.08.2017. Thereafter, the Trial started and after examining 7 prosecution witnesses, one defence witness, the appellant and one co-accused, the Trial Court convicted the appellant under Section 376 (1) IPC and sentenced him to undergo 15 years R.I with a fine of Rs. 10,000/-, i.d. 100 days R.I. 6. The appellants counsel submits that the alleged incident of rape occurred on 30. 04.2017, while the FIR had been filed 18 days later i.e., on 18.05.2017. He submits that the allegation of rape made by the victim was an afterthought and not supported by any evidence as the appellant, the co-accused and the victim girl had all been produced before the Police and the Medical Officer on 30.04.2017 with regard to their inebriated condition. However, no complaint or statement of rape was made by the victim girl to the Police or the Medical Officer on the night of 30.04.2017. The Amicus Curiae submits that the evidence of the victim does not inspire confidence in view of the fact that the statement given by the victim before the CJM, Siaha and the FIR are at odds with the evidence given in the Trial Court. He also submits that the evidence given by the Medical Officer with regard to examination of the victim does not prove that rape had occurred. The Amicus Curiae also submits that the victim/prosecutrix, in her evidence, stated that the FIR dated 18.05.2017 (Exhibit P-3) is an incorrect FIR and the signature appended thereon was not her signature. The Amicus Curiae also submits that the evidence of the two prosecution witnesses, who allegedly saw the appellant having sexual intercourse with the victim cannot be relied upon to prove that rape had been committed, as the sexual act was consensual in nature. 7. Mr. A.K. Rokhum, Public Prosecutor submits that the appellant in his examination under Section 313 Cr.P.C had categorically admitted to the fact that the victim girl had shouted for help during the alleged rape. He also submits that there being eye witnesses to the crime of rape being committed upon the victim by the appellant, the fact that rape had been committed was proved. He also submits that there being eye witnesses to the crime of rape being committed upon the victim by the appellant, the fact that rape had been committed was proved. He also submits that though the victim, in her FIR did not state that rape had been committed upon her by the appellant, the evidence given by the victim clearly stated that the appellant had raped her. Thus, the statement of the victim being trustworthy, the appellant could be convicted solely on the basis of the testimony of the prosecutrix. He also submits that there is corroboration of the victims statement of rape by the evidence given by PW 2 and 3 i.e., the eye witnesses. He accordingly submits that the impugned Judgment & Order and Sentence Order should be upheld and the appeal be dismissed. 8. I have heard the learned counsels for the parties. 9. The Medical Doctor (PW7), who examined the victim on 18.05.2017, had been specifically requested to examine whether the victims hymen was intact or not, vide letter dated 18.05.2017 issued by the OC, Siaha P.S. However, the medical examination report dated 18.05.2017 issued by PW7 does not make any mention of whether the victims hymen was intact or not. However, in his deposition in the Trial Court, PW7 has stated that the hymen of the victim was not intact. This evidence is not based upon any earlier finding or the medical examination report dated 18.05.2017. Accordingly, the question of whether the victim girls hymen is intact or not is still a disputed question of fact. This however does not take away the fact that there was sexual intercourse between the appellant and the victim. Whether it was consensual or rape is the moot point in issue. 10. The FIR dated 18.05.2017 (Exhibit P-3), submitted by the victim has been stated to be incorrect by the victim herself, not only in the cross examination at Paragraph No. 7 but also in the re-examination, the extracts of which are reproduced below:- Para 7 of the Cross Examination "It is a fact that the FIR which I submitted marked as Exhibit P-3 is not correct and the signature over FIR marked as Exhibit P-3 (a) is not my signature. Re- Examination The FIR that was lodged on 18.05.2017 marked as Exhibit P-3 is not the one which was lodged by me, because the FIR lodged by me was hand written by my uncle H. Lalrosiama and duly signed by me. Besides the contents of the FIR marked as Exhibit P-3 did not include what I have stated in the hand written FIR, written by my uncle H. Lalrosiama. On the day of lodging an FIR, the police asked me to sign on a piece of paper." 11. In the FIR dated 18.05.2017, the victim states that she did not know if the appellant had sexual intercourse with her or not as she had blacked out. The victim in paragraph No. 16 of the cross examination states that she regained consciousness in the hospital. However, PW 2 & 3, who were eye witnesses to the rape have stated that the appellant was shouting for help. It is not understood as to how the appellant could have been shouting for help if she had blacked out and had regained consciousness only in the hospital. This however cannot take away the fact that as per the medical report of the victim on 30.04.2017, the victims movement was uncoordinated and that the victim was drunk. In the alternative, the submission of the Amicus Curiae that the sexual intercourse between the appellant and the victim was consensual may not hold much water as a drunk person may not be able to give a proper consent and a person who had blacked out would definitely not be able to give consent. 12. A reading of the contents of the FIR and paragraph 16 of the cross-examination of the victim points to the fact that the victim could not have been aware of any sexual intercourse having taken place between the appellant and the victim. Thus, if the victim blacked out prior to the alleged rape and regained consciousness in the hospital, the victim could not have known if the appellant had committed rape upon her. However, in the examination-in-chief of the victim, the victim states that after drinking the liquor, she was forcefully pulled out from the vehicle and was hit by the appellant. She was forcefully undressed and the appellant thereafter inserted his male organ into her vagina. She cried out loudly to seek help. However, in the examination-in-chief of the victim, the victim states that after drinking the liquor, she was forcefully pulled out from the vehicle and was hit by the appellant. She was forcefully undressed and the appellant thereafter inserted his male organ into her vagina. She cried out loudly to seek help. The appellant, thereafter, covered her mouth with his hands and thereafter, she became unconscious. She also submits that there was blood stains on her clothes as the appellants had inflicted physical harm upon her. The eye witness, PW-2, on the other hand, has stated in her evidence that when she saw the appellant having sexual intercourse with the victim, the victim was in a conscious state. As stated earlier, the evidence given by the victim is not in conformity with the FIR and paragraph No. 16 of the cross-examination of the victim. 13. Though the victim has categorically stated that the FIR which was marked as Exibit P-3 is not correct and that Exhibit P-3A was not her signature, the prosecution and the Trial Court has not made any explanation with regard to the above deposition of the victim. Accordingly, there is discrepancies in the statement of the victim/prosecutrix. Paragraph-17 of the victim girls deposition during cross-examination is to the effect that she had consumed alcohol on several occasions prior to the day of the incident. However, in the statement given by the victim to the CJM, Siaha on 24.07.2017, the victim has stated that she had not drunk liquor prior to the incident. In the said statement recorded on 24.07.2017, the victim had also stated that the two accused had asked her to drink the liquor and she obeyed. There is nothing in the evidence to show that she was forcefully made to drink the liquor. In fact, the victim at paragraph No. 6 of her cross examination has stated that she had got down at Siahatla to buy liquor, kuhva and tamarinds. The statement made by the victim on 24.07.2017, which was recorded by the CJM, Siaha District has been exhibited as Exhibit P-20. However, the said CJM has not been examined by the Trial Court. 14. The Trial Court has also failed to examine the I.O who conducted the investigation and has only examined the I.O, who submitted the charge sheet. 15. However, the said CJM has not been examined by the Trial Court. 14. The Trial Court has also failed to examine the I.O who conducted the investigation and has only examined the I.O, who submitted the charge sheet. 15. The victim in her evidence had stated that there were blood stains on her clothes. However, though the victim, the appellant and the co-accused were produced before the Police and the Medical Officer on the alleged date of incident, no such report or recording of any blood stain was made. Further, as stated earlier, no allegation of rape had been made by the victim on 30.04.2017 before the Police or the Medical Officer. This Court also finds that the appellant and the co-accused Smt. Laleni had given evidence during the trial. However, there is nothing in the records to show that the accused persons had given consent to be a witness against themselves. The examination of the appellant and the co-accused under Section 313 Cr.P.C having been done on 21.09.2017, this Court is unable to understand as to how the Trial Court could have made the appellant and the co-accused give evidence on 10.10.2017. In this respect, it would be fruitful to reproduce Article 20 (3) of the Constitution of India, which states "No person accused of any offence shall be compelled to be a witness against himself." 16. At this stage, Mr. AK Rokhum, Public Prosecutor submits that the matter may be remanded back to the Trial Court for taking additional evidence of the I.O who conducted the investigation, to which the Amicus Curiae does not have any objection. However, the learned Amicus Curiae submits that the appellant may be granted bail during the time the criminal proceedings remains pending in the Trial Court. 17. In view of the consent of the parties and without going further into the merits of the case, this appeal is remanded back to the Trial for taking additional evidence of the I.O., who conducted the investigation, and of any other witness, as allowed as per law. The Judgment & Order dated 20.10.2017 and Sentence Order dated 24.10.2017, passed by the learned Additional Sessions Judge, Siaha is set aside. The learned Trial Court shall take additional evidence of the I.O. who investigated the case and of any other witness it finds necessary. The Judgment & Order dated 20.10.2017 and Sentence Order dated 24.10.2017, passed by the learned Additional Sessions Judge, Siaha is set aside. The learned Trial Court shall take additional evidence of the I.O. who investigated the case and of any other witness it finds necessary. It shall not be influenced by any of the observations made by this Court in this appeal, while deciding the case afresh. The appellant is at liberty to pray for bail before the learned Trial Court as permitted by law. 18. The appeal is accordingly disposed of. 19. Send back the LCR. 20. In view of the assistance rendered by the learned Amicus Curiae, his fee is fixed at Rs. 7500/-, to be paid by the State Legal Services Authority.