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2019 DIGILAW 397 (GAU)

Lalringzauva v. State of Mizoram

2019-03-29

NELSON SAILO

body2019
JUDGMENT : NELSON SAILO, J. 1. Heard Mr. B. Lalramenga, learned counsel for the appellant and Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor for the State respondent. 2. The appellant being highly aggrieved with the Judgment and Order dated 16.5.2016 passed by the learned Addl. Sessions Judge, Aizawl District Aizawl in Sessions Case No. 53/2014 convicting him under Section 376(1) of the Indian Penal Code (IPC) and in consequence thereof, sentencing him to Rigorous Imprisonment for 7 years with a fine of Rs. 3000/- and also with a default clause, is before this Court. 3. The case of the prosecution is that an FIR was lodged by the respondent No. 2, (the prosecutrix) to the effect that on the night of 13.04.2014, she was sexually assaulted while she was sleeping and in a state of intoxication. As a result, Vaivakawn P.S. Case No. 83/2014 under Section 376(1) of the IPC was registered and investigated into it. Upon completion of the investigation, a chargesheet was filed against the appellant whereafter, the Addl. District & Sessions Judge on 11.9.2014 framed charge under Section 376(1) of IPC against him. The appellant pleaded not guilty and claimed for trial. As a result, trial commenced and in the process, as many as 9 prosecution witnesses were examined. The defence did not examine any witness apart from cross examining the prosecution witnesses. After the prosecution witnesses were examined, the appellant was examined under Section 313 of the Cr.P.C. to explain the evidence led against him by the prosecution witnesses. Consequently, the learned Trial Court vide Judgment and Order dated 16.05.2016 passed the impugned Judgment and Order convicting and sentencing the appellant in the manner as-already mentioned hereinabove. 4. Mr. B. Lalramenga, learned counsel for the appellant submits that the evidence led by the prosecution witnesses are all contradictory to each other and therefore, there is no evidence which establishes beyond reasonable doubt that the appellant is guilty of committing the crime under Section 376(1) of the IPC. He further submits that although the appellant has not denied having sexual intercourse with the prosecutrix, but the same was with her consent and therefore, there is no question of committing rape upon the prosecutrix. He further submits that although the appellant has not denied having sexual intercourse with the prosecutrix, but the same was with her consent and therefore, there is no question of committing rape upon the prosecutrix. He further submits that from the evidence of PW7, who was the case I.O., two persons i.e. Helen Sangneihpari and Vanlalvena were present at the time of the incident and they thought that it was not rape. In her cross examination, PW7 further deposed that from the statement of the prosecutrix herself, it was seen that the prosecutrix herself did not resist to have sexual intercourse. 5. Mr. B. Lalramenga, learned counsel for the appellant submits that the statement of the PW1, who is the younger brother of the prosecutrix is also unreliable inasmuch as in his examination-in-chief, he deposed that he along with PW-6 and the Police Personnel went to the house of Helen Sangneihpari and recovered a navy blue underpant of her sister i.e., the prosecutrix on 15.04.2014. However, as per the seizure memo which was exhibited as Exhibit P-I, the underwear of the prosecutrix was recovered on 14.04.2014. The learned counsel further submits that when the prosecutrix was taken for medical examination on 14.04.2014, she herself informed the Doctor that she was aged 21 years and therefore, the examination of the medical Doctor as PW5 and the medical report are also contradictory inasmuch as the report indicates that the prosecutrix was under the influence of the alcohol. He further submits that the finding of the Doctor that there were multiple small lacerations at posterior fourchette by itself does not establish that rape was committed upon the prosecutrix. The prosecutrix was only a consenting party which is established from the finding of the Doctor that there were no other injuries in her person. Under the circumstances, the appellant should be given the benefit of doubt and be acquitted by setting aside the impugned Judgment and Order dated 16.05.2016. Mr. B. Lalramenga in support of his submission places reliance upon the following decisions of the Apex Court:- (1) Kuldeep K. Mahato Vs. State of Bihar, (1998) 6 SCC 420 at paragraph 11. (2) Narender Kumar Vs. State (NCT of Delhi), (2012) 7 SCC 171 at paragraphs 29-31. 6. Mrs. Linda L. Fambawl, learned Addl. Mr. B. Lalramenga in support of his submission places reliance upon the following decisions of the Apex Court:- (1) Kuldeep K. Mahato Vs. State of Bihar, (1998) 6 SCC 420 at paragraph 11. (2) Narender Kumar Vs. State (NCT of Delhi), (2012) 7 SCC 171 at paragraphs 29-31. 6. Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor, on the other hand submits that the fact that it was the appellant indeed who committed rape upon the prosecutrix can be seen from the evidence of the PW1 and PW3. She submits that there is clear corroboration in the sequence of the events which led to the crime from the respective evidence of the two prosecution witnesses. The claim of the appellant that it was a consented sexual intercourse has no basis inasmuch as from the evidence of the prosecutrix herself, it can be clearly seen that when the appellant tried to embrace her, she resisted him. However, as she was in a state of intoxication, she could not resist the appellant and as a result, the appellant committed rape upon her. 7. Mrs. Linda L. Fambawl further submits that from the medical report of the Doctor, it can also be plainly seen that the prosecutrix was found to have multiple small laceration at posterior fourchette and her hymen was torn approximately .5 cm at 5 o'clock position. The examination was done pursuant to the requisition made by the Officer-in-Charge of Crime against Women Cell (CAW), Aizawl on 14.04.2014. Absence of other external injuries can be explained from the fact that the prosecutrix could not resist the sexual assault as she was under intoxication at the relevant time and the same therefore does not render the prosecution's case to be doubtful. Therefore, even on the basis of the medical report, the prosecution has been able to establish their case against the appellant. She further submits that assuming that the prosecutrix was a consenting party without admitting to the same, the fact remains that as per the 5th proviso to Section 375 of the IPC, consent given by an intoxicated person is not a consent recognized in law. Therefore, considering the materials available on record, the prosecution succeeded in making out their case and therefore, the impugned Judgment and Order may not be interfered with. Therefore, considering the materials available on record, the prosecution succeeded in making out their case and therefore, the impugned Judgment and Order may not be interfered with. Lastly, she submits that the decision of the Apex Court in Narender Kumar (Supra) relied upon by the appellant's counsel is only in favour of the prosecution inasmuch as it is a settled position in law that the evidence of a prosecutrix herself is sufficient to convict an accused in a case under Section 376 IPC. 8. I have heard the submissions advanced by the learned counsels for the rival parties and I have perused the materials available on record. 9. It may be noticed that this Court vide Order dated 30.11.2017 upon considering the submissions made by the learned counsels for the rival parties sent the Lower Court records back to the Trial Court for recording the statements of 3 (three) persons namely, Mr. Laltea, S/o. Mr. Khawlthanga, R/o. Hunthar Veng, Aizawl, Mr. Vanlalvena, S/o. Mr. Tawkhleisanga, R/o. Zokhawthar, Champhai and Mrs. Sangneihpari, D/o. Khulhthanga presently residing at Hunthar Veng, Aizawl who were said to be present when the alleged crime was being committed. A direction was therefore given to the Addl. District & Sessions Judge, Aizawl to record their evidence in exercise of the powers conferred by Section 391 of the Cr.P.C. However, despite all efforts of the Court below, the 3 (three) persons could not be located and consequently, this Court vide Order dated 10.10.2018 decided to hear the appeal on the basis of the materials available on record. As for the LCR, the same has not been sent back by the Trial Court to this Court. 10. Proceeding to examine the evidence against the appellant, it may be noticed, that the FIR was lodged by the prosecutrix before the Officer-in-Charge of Vaivakawn Police Station on 14.04.2014, reporting the incident of rape. However, in the FIR, the prosecutrix did not mention any name as to who the accused person was. What was mentioned was that she believed someone had sexual intercourse with her. Coming to the statements of the prosecutrix as was recorded by the Judicial Magistrate 1st Class (PW-9) on 13.06.2014, it may be seen that she stated that in the month of April, the date which she did not remember, after weaving clothes, she went home to eat food and returned at 3:00 P.M. at the weaving place. Coming to the statements of the prosecutrix as was recorded by the Judicial Magistrate 1st Class (PW-9) on 13.06.2014, it may be seen that she stated that in the month of April, the date which she did not remember, after weaving clothes, she went home to eat food and returned at 3:00 P.M. at the weaving place. She helped the owner of the work place in the garden and then went inside the house at around 4:00 P.M. Inside the house, she found Helen and Laltea and another man who was lying on the bed. They were having alcohol and Mrs. Helen invited her to drink with them. According to her, since she did not normally consume hard drinks except for a little amount of beer during menstruation period, she declined the offer. However, Helen insisted and she gave her drinks on a cup, which was not even full. After finishing the drinks, she began to feel dizzy and was slowly losing her consciousness. She remembered that she was made to lie down on the bed and while doing so, 2 (two) men entered. She could sense them touching her body and she was unable to move. She could hear the sound of Mrs. Helen weaving clothes faintly and tried to call out for her but could not do so. She lost consciousness and later on waking up, she found herself in the bed and sensed that her private part was hurting. When she went to pass urine, she found herself bleeding. According to her belief, it was Laltea's friend, who was lying down on the bed. 11. During the trial, the prosecutrix examined herself as PW3. In her examination-in-chief, she deposed that on 13.04.2014 at around 4:00 P.M., she went to the weaving industry house of Pi Kimi. When she entered the house, she saw Helen, her brother Laltea accompanied by Tawia present. After a while, Helen gave her a cup of liquor and she consumed only two sips, since she never consumed liquor. After taking the liquor, she slept on the bed and when she woke up feeling thirsty and asked for water, Helen gave her a steel cup filled with liquor. Sensing the same to be liquor, she refused to have it but was forced to drink. After taking the liquor, she slept on the bed and when she woke up feeling thirsty and asked for water, Helen gave her a steel cup filled with liquor. Sensing the same to be liquor, she refused to have it but was forced to drink. Thereafter, she could not move and she lay in the bed and while doing so, she realized that one man was trying to embrace her but she resisted. She also knew that Helen was also sitting near the bed and she could hear the sound of weaving. She became unconscious and thereafter, did not know what happen to her on that night. 12. In her cross examination, she deposed that she knew the accused Tawia slept besides her. She further deposed that according to her, Helen and Laltea knew that the accused had sexually assaulted her. PW4 is the Junior Scientific Officer, who deposed before the Court that ethyl alcohol was detected from the exhibits that was sent for forensic examination and that no other poisonous substance were detected in the exhibits. PW5 is the Doctor, who examined the prosecutrix on 14.04.2014. She deposed before the Court that the victim herself informed her that she was 21 years of age. On examining her, she found multiple small lacerations at posterior fourchette. The hymen of the victim was torn approximately .5 cm at 5 o'clock position. 13. In her cross examination, she deposed that there was no mark of violence in the body of the victim. PW6 is the seizure witness, who basically had nothing much to say in her deposition before the Court. PW7, who was the Investigating Officer, deposed in her cross examination that from her investigation, Helen Sangneihpari and Vanlalvena admitted that the appellant had sexual intercourse with the prosecutrix and according to them, they thought that the incident was not rape. On re-examination of PW7, she deposed that the victim or the prosecutrix could not shout, since she was in the state of intoxication. PW8 is the second Investigating Officer, who took over the investigation from PW7. It was she, who submitted the chargesheet before the Court. PW9 is the Judicial Magistrate 1st Class, who recorded the investigation statement of the prosecutrix. 14. PW8 is the second Investigating Officer, who took over the investigation from PW7. It was she, who submitted the chargesheet before the Court. PW9 is the Judicial Magistrate 1st Class, who recorded the investigation statement of the prosecutrix. 14. From the evidence available on record, it may be seen that apart from the prosecutrix stating that she knew the appellant was sleeping besides her in her cross examination and that he tried to embrace her, there is no evidence to show that it was the appellant, who committed rape upon the prosecutrix. The appellant no doubt admitted of having sexual intercourse with the prosecutrix in his examination under Section 313 of the Cr.P.C. but he maintained that it was consensual. 15. PW1 is the younger brother of the prosecutrix in his examination-in-chief also deposed that on entering the house of Helen Sangneihpari, he saw his sister sleeping on a bed and that 2 (two) men were sleeping together in the opposite bed. Therefore, as already noticed, there is no evidence available to show that it was the appellant, who committed rape upon the prosecutrix. It is a settled principal in law that the statement recorded under Section 313 of the Cr.P.C. cannot be the basis for convicting an accused. Further, the case of the prosecution has to stand or fall on its own merit and not on the weakness of the defence. 16. The Apex Court in the case of Narender Kumar (Supra) has held that the Courts while trying an accused on the charge of rape must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of witnesses, which are not of substantial character. However, it was also held that even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. The prosecution has to prove their case beyond reasonable doubt and cannot take support from the weakness of the case of the defence. 17. However, it was also held that even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. The prosecution has to prove their case beyond reasonable doubt and cannot take support from the weakness of the case of the defence. 17. In the present case as well, upon considering all the materials available on record, I am of the considered view that the prosecution has been unable to prove their case against the appellant beyond reasonable doubt and therefore, under such circumstance, the appellant will only be entitled to be given the benefit of doubt. 18. In the result, the impugned Judgment & Order dated 16.05.2016 is hereby set aside and the appellant is directed to be set at liberty if not wanted in connection with any other case. 19. The appeal accordingly stands allowed.