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2019 DIGILAW 220 (GAU)

F. LALLIANZUALA v. STATE OF MIZORAM

2019-02-18

HITESH KUMAR SARMA

body2019
JUDGMENT : HITESH KUMAR SARMA, J. 1. This is an appeal from jail, preferred by accused/appellant, who has been convicted by judgment, dated 23-03-2016, and sentenced vide order, dated 05-04-2016, passed by the learned Additional Sessions Judge, Lungluei, in Crl. Tr. No. 443/2014, under Sections 376 (1) of the IPC. On conviction, the accused-appellant has been sentenced to suffer rigorous imprisonment for 7 (seven) years and to pay a fine of Rs. 5,000/-, in default, to suffer simple imprisonment for a period of 2 (two) months. The period already undergone in custody by the accused- appellant is directed to be set off, as provided under Section 428 of the Cr.P.C. 2. I have heard Mr. Joseph L. Renthlei, learned Amicus Curiae appearing on behalf of accused-appellant, and Ms. Linda L. Fambawl, learned Additional Public Prosecutor, Assam. 3. The prosecution case is that, on 03.11.2014 at about 8:00 p.m., the victim went to the house of the appellant. There, she was raped by the appellant under threat. On coming to know about this occurrence, her husband, on 04.11.2014, lodged an FIR with the allegation of commission of rape on his wife i.e., the victim, by the accused-appellant. 4. On receipt of the FIR about the above occurrence, Thaingsai Police Station registered a case, being Thaingsai Police Station Case No. 04/2014, under Sections 376 (1) of the IPC, on 04-11-2014. 5. The police investigated into the case, arrested the accused- appellant, forwarded him to the judicial custody, got the victim examined by the Doctor/PW4, got the statements of the victim as well recorded under Section 164 of the Cr.P.C, visited the place of occurrence, and finally, on completion of the investigation, submitted charge-sheet against the accused-appellant, under Section 376 (1) of the IPC. 6. In due course, the case was committed to the Court of learned Sessions Judge, and was tried by learned Addl. Judge, Lungluei, on being transferred to her. 7. After exhausting all required formalities, on appearance of the accused-appellant before the trial Court of learned Addl. Sessions Judge, Lungluei, he was furnished copies as required under Section 207 of the Cr.P.C. and after hearing him though his learned State defence counsel, framed a formal charge against him under Section 376 (1) of the IPC. The accused-appellant pleaded not guilty while the charge was explained to him. 8. Sessions Judge, Lungluei, he was furnished copies as required under Section 207 of the Cr.P.C. and after hearing him though his learned State defence counsel, framed a formal charge against him under Section 376 (1) of the IPC. The accused-appellant pleaded not guilty while the charge was explained to him. 8. In this case, to bring home the charge against the accused- appellant, the prosecution examined as many as 6 witnesses, who were subjected to cross-examination by the defence. The defence examined none. 9. After closer of the prosecution evidence, statement of the accused-appellant was recorded by the learned trial Court, under Section 313 of the Cr.P.C. The accused-appellant, in his such statement, denied the accusation levelled against him and had taken the plea of consensual sex with the victim. After conclusion of the trial the learned trial, Court convicted and sentenced the accused-appellant as aforesaid. 10. I have meticulously examined the judgment appealed against as well as the evidence of 6 witnesses as available on record of the learned trial Court. 11. The evidence of the victim, examined as PW2, is that, the informant/PW1 is her husband. On the date of the occurrence, i.e., 03.11.2014 her husband had to go out to attend a meeting under the NLUP and told her that she could go to the house of the accused- appellant and given them company till he returns as the wife of the accused-appellant got separated from him and he was staying with his children alone, her husband/PW1 put her in the house of the accused- appellant and, then, left for the meeting of NLUP. There, they had some conversation, as indicated in her evidence, and thereafter, at some point of time, the accused-appellant told her to roll cigarette for him as in the absence of his wife there is none to do the same. The accused-appellant stood nearby the door and also locked the door from inside. The accused-appellant pulled her from behind and carried her to the verandah on the other side of the house. At that point of time, she sought help from the son of the accused-appellant, Pianfela, but he did not do anything which, according to her, because of his failure to understand what she conveyed, due to his tender age. Then, she called out the names of other son, namely, Ringngheta, who was sleeping, seeking his help. At that point of time, she sought help from the son of the accused-appellant, Pianfela, but he did not do anything which, according to her, because of his failure to understand what she conveyed, due to his tender age. Then, she called out the names of other son, namely, Ringngheta, who was sleeping, seeking his help. At that point of time, the accused-appellant told her not to make any noise and to keep quiet. He laid her on the floor of the verandah. As she was physically weak and exhausted, she could not over power the accused-appellant although she struggled. At the instance of the accused-appellant, she had to remove her pant as she was threatened that her life would be at stake if she did not obey him. She was shivering. She removed her pant. The victim also told the accused- appellant that his son was standing nearby and then, the accused- appellant, sent his son back to the other side of the house. She was also told not to tell anything to her husband further threatening to kill her if she discloses such fact. Thereafter, the accused-appellant indulged in sexual intercourse with the victim. After the occurrence took place, as her husband did not come back till then, she went to the house of one Pu Rammawi, whose house was about 200 metres away from house of the accused-appellant. She did not disclose the fact of commission of rape on her person to the aforesaid Pu Rammawi. Then, her husband came; she went with her husband to her home. To the queries made by her husband as to what for she was not talking and sullen, the victim did not disclose anything. But, on the next morning, she disclosed to her husband about the incident of commission of rape on her by the accused-appellant. Thereafter, the PW1/husband lodged an FIR. 12. While examining the evidence of PW1, i.e., the informant/husband, it transpires that the matter of reporting about the fact of the incident to him, by the victim, is established and not even disputed; rather the accused-appellant subscribed what his wife/victim had told him. 13. Pw3, is the head constable. He is a witness to the seizure of the underwear of the accused-appellant from his house and the pant of the victim from her house, vide Ext. P-II. 13. Pw3, is the head constable. He is a witness to the seizure of the underwear of the accused-appellant from his house and the pant of the victim from her house, vide Ext. P-II. His evidence is formal in nature and it does not appear that his evidence discloses anything about the fact of the occurrence. 14. Pw5 is the Assistant Director of Forensic Science Laboratory, Mizoram, who examined the seized cloths. He found semen in Ext. B i.e., underwear of the accused-appellant. No other materials could be gathered from his evidence implicating the accused-appellant with the commission of the alleged offence. His evidence is limited to his findings only. 15. Pw4 is the Doctor, who examined the victim, on 04.11.2014, on being produced by the investigating agency. It has come out from his evidence that there were bleeding from the vagina of the victim and on being asked by him, she replied that she was not having menstrual cycle at that point of time. After cleaning the vagina, he found bruise on her right labial area. No other injury was found. There was mild bleeding even at the time of examination of the victim. He opined that the victim was sexually abused, which is evident from the bruise on her right labial area suggesting violence at the time of offence. In normal intercourse, according to the Medical Officer, PW4, there has to be lubrication thereby reducing chance of bruise. He has also opined that in cases of village women their reproductive track is not healthy due to lack of hygiene and sanitation, when there is forceful penetration, there is more likelihood of bleeding and injury. This witness also denied that he did not find any mark of violence on her body and that the victim did not feel pain on touching the bruise on her private part at the time of examination. 16. Pw6 is the Investigating Police Officer. His evidence is of routine nature from receipt of the FIR till filing of the charge-sheet. He examined the witnesses under Section 161 of the Cr.P.C. 17. 16. Pw6 is the Investigating Police Officer. His evidence is of routine nature from receipt of the FIR till filing of the charge-sheet. He examined the witnesses under Section 161 of the Cr.P.C. 17. Such evidence of the witnesses particularly, the evidence of victim/PW2 read together with evidence of PW4, Medical Officer, makes it appear that the accused/appellant had sexual intercourse with the victim at the relevant point of time and this is the fact not even disputed by the accused/appellant as he had admitted to have sexual intercourse with the victim although he had taken the plea that it was consensual sex. 18. The learned Amicus Curiae has argued that the evidence of the victim herself raises doubt about the theory of rape, she has projected in this case; rather, according to him, it was a consensual sex between the accused-appellant and the victim. He further submits that the victim not only raised alarm at the time of occurrence, rather; she kept silent till she reported about the occurrence to PW1, on the next day, inspite of the chance to disclose the fact, as noticing her condition her husband/PW1 enquired as to what had happened to her. Admittedly, she also did not disclose the fact of the alleged offence to the neighbour of the appellant, whose house she visited immediately after the occurrence. According, to the learned Amicus Curiae, these circumstances coupled with the fact of admission of sexual intercourse clearly depicts that had she not been consenting party, she would have also raised alarm and she would have disclosed the facts to her husband immediately at the first chance. 19. The entire evidence on record, examined as a whole, leads us to understand that although the accused-appellant had intercourse with the victim, it was not consensual. There is no dispute at the Bar as to the accused-appellant having sexual intercourse with the victim. The victim claims that she was so feeble, at the relevant point of time, that she could not effectively resist the accused-appellant from commission of rape on her person and she was also under life threat compelling her to surrender to him. The defence failed to elicit anything, by way of cross- examination, that the evidence of threat by the accused-appellant to the victim is unworthy of reliance. 20. The defence failed to elicit anything, by way of cross- examination, that the evidence of threat by the accused-appellant to the victim is unworthy of reliance. 20. The learned Amicus Curiae has also raised an argument to suggest that the threat made out by the accused-appellant was verbal in nature and therefore, she could not have been compelled to surrender herself to the accused-appellant. There is also no evidence, according to the learned Amicus Curiae, about application of force by the accused- appellant while having sexual intercourse with the victim. In the considered view of this Court, it is not always necessary to apply physical force to compel a woman to surrender her chastity. Verbal threat which the victim believes that the same would be translated into action if she refuses to abide by, is also amounts to application of force. 21. This Court has to understand the fact leading to the alleged occurrence in the background of certain facts such as:- The accused-appellant got separated from his wife and at the relevant point of time his wife was not with him. He was with his children including the youngest one, who was an infant, standing at the site of the scene at the time and because of his tender age, he could not understand anything. The other children, who could have responded to the call of the victim for help were all sleeping and for whatever reason it may be, they did not respond to her call. On the other hand, admittedly, the husband/PW1 had put his wife/victim in the house of the accused-appellant to give them company due to the fact of his separation from his wife. It has also come out from the evidence of the victim that the victim was not suspicious about the movements of the accused-appellant, who closed the door from inside and thereafter, laid her on the verandah and committed rape on her under threat. In fact, the facts indicated that out of good relationship and faith, the husband of the victim left her at the house of the accused- appellant. The evidence of the prosecution, particularly, the reliable and convincing evidence of the victim inspires confidence of this Court. 22. The plea of consensual sex taken by the accused-appellant has not been established in view of absence of evidence to that effect led by the defence. The evidence of the prosecution, particularly, the reliable and convincing evidence of the victim inspires confidence of this Court. 22. The plea of consensual sex taken by the accused-appellant has not been established in view of absence of evidence to that effect led by the defence. The defence needs to establish this plea since it was taken by him. In view of the inspiring evidence of the victim/PW2, as indicated above, it was necessary for the accused-appellant to disprove the evidence of the victim/PW2 on the fact of commission of rape on her person which he fails to do. On the other hand, there is no evidence on record, to indicate, even remotely, that there was intimate relationship between the accused-appellant and the victim to the extent that she would surrender her chastity to him without there being any objection. 23. The law in respect of evidence of the victim in a case of sexual offence is settled by now. Seeking corroboration to the evidence of victim of rape, in fact, amounts to adding insult to the injury. Unless there is compelling reasons the evidence of the victim should not be disbelieved and corroboration should not be sought for as in other cases. The Court can seek for corroboration only when the evidence of the victim is so unrealistic or unbelievable that it is unsafe to rely on her evidence. 24. The Hon'ble Supreme Court, in State of Himachal Pradesh Vs. Sanjay Kumar Alias Sunny, (2017) 2 SCC 51 , holding, as quoted below, appears to be appropriately applicable: "31. ................. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? The plea about lack of corroboration has no substance (See Bhupinder Sharma V. State of H.P.5). Notwithstanding this legal position, in the instant case, we even find enough corroborative material as well, which is discussed hereinabove." 25. In view of the facts and circumstances, under which the sexual intercourse was committed upon the victim by the accused-appellant, in the considered view of this Court, the victim had no alternative, but to surrender herself and such surrender cannot be said to be consensual, she surrendered, under the compelling circumstances out of fear. 26. That being so, in view of the decision of the Hon'ble Supreme Court, referred to above, and in view of the evidence discussed above, this Court is of the view that there is no compelling reason to disbelieve the evidence of the victim and not to act upon her evidence. Therefore, the judgment on conviction, and subsequent sentence of the accused- appellant on conviction, appears to be based on evidence on record, requiring no interference by this Court in exercise of its appellate jurisdiction. 27. Accordingly, the appeal is dismissed. The judgment and order of the learned trial Court is upheld. 28. Send down the LCR with a copy of this judgment. 29. 27. Accordingly, the appeal is dismissed. The judgment and order of the learned trial Court is upheld. 28. Send down the LCR with a copy of this judgment. 29. A copy of the judgment shall also be furnished to the Superintendent, District Jail, Lunglei for furnishing a copy thereof to the accused/appellant. 30. This court records its appreciation for the assistance rendered by learned Amicus Curiae, Mr. Joseph L. Renthlei. The learned Amicus-curiae be paid an amount of Rs. 7,500/-, as remuneration, by the State Legal Services Authority on production of a copy of this judgment.