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2020 DIGILAW 240 (GAU)

Munmun Mura v. State of Arunachal Pradesh

2020-02-19

MICHAEL ZOTHANKHUMA, SANJAY KUMAR MEDHI

body2020
JUDGMENT Michael Zothankhuma, J. - Heard Ms. N. Anju, the learned Amicus Curiae and Ms. L. Hage, learned Addl. P.P. for the State of Arunachal Pradesh. 2. This appeal has been filed against the impugned judgment dated 28.06.2017, passed by the learned District and Sessions Judge, East Sessions Division, Tezu, in Session Case No. 83/(CLG)/2014, by which, the appellant has been convicted under Section 376(2)(f) of the IPC and sentenced to undergo rigorous imprisonment for a period of 14(fourteen) years, with a fine of Rs. 10,000/-, in default further imprisonment for 1(one) year. 3. The prosecution''s case is that on 06.10.2012, at around 2100 hours, an F.I.R. was submitted by Smti Anita Rai, wife of Dhon Bhadur Rai of Nampong village to the Officer-inCharge APP(O.C), Jairampur, stating that her daughter had been raped by the appellant on 06.10.2012 at 1030 hours. On the basis of the complaint filed, Jairampur P.S Case No. 26/2012, under Section 376 IPC, was registered. The victim girl was examined by a medical Doctor on 06.10.2012. The investigation was then initiated and Charge-sheet was filed by the I.O. after finding a prima facie case under Section 376(2)(f) IPC, against the appellant. The appellant also made a confession under Section 164 Cr.P.C. before the Magistrate, First Class, Jairampur, Changlang District, wherein, he stated that he tried to rape the victim but the victim resisted. 4. The learned Trial Court, thereafter, framed charge under Section 376(2)(f) IPC, against the appellant on 12.12.2014. During the proceedings before the learned Trial Court, 10(ten) prosecution witnesses were examined. The examination of the appellant under Section 313 Cr.P.C., was taken on 30.01.2017, wherein, he admitted that he attempted to commit rape upon the victim girl, but did not succeed. wxyz The learned Trial Court, thereafter, passed the impugned judgment dated 28.06.2017, in Sessions Case No. 83/(CGL)/2014, convicting the appellant under Section 376(2)(f) IPC, and sentenced him to undergo 14(fourteen) years rigorous imprisonment, with a fine of Rs. 10,000/-, in default further imprisonment for 1 (one) year. zyxw 5. wxyz The learned Trial Court, thereafter, passed the impugned judgment dated 28.06.2017, in Sessions Case No. 83/(CGL)/2014, convicting the appellant under Section 376(2)(f) IPC, and sentenced him to undergo 14(fourteen) years rigorous imprisonment, with a fine of Rs. 10,000/-, in default further imprisonment for 1 (one) year. zyxw 5. The learned Amicus Curiae, submits that the appellant should have been convicted for an attempt to rape and not for rape under Section 376(2)(f) IPC, inasmuch as, the appellant had admitted to "attempt to rape" in his confession made under Section 164 Cr.P.C. to the Magistrate and also, in his statement taken under section 313 Cr.P.C. The learned Amicus Curie also submits that even if this Court upholds the conviction of the appellant under Section 376(f)(2) IPC, the sentence imposed upon the appellant should be lessened, as the appellant has never been involved in a case of this nature earlier. Also, as the appellant would have a chance for reformation, this Court should impose a lesser sentence than the one given by the learned Trial Court. 6. The learned Addl. P. P., on the other hand, submits that the evidence of the victim girl, has been corroborated by the medical report and the evidence adduced by the PW-2. As such, the case of rape having been clearly proved, there is no reason to interfere with the impugned judgment of the Trial court. 7. We have heard the learned counsels for the parties. 8. The evidence of the mother of the victim girl, i.e. PW-1, is to the effect that when she returned to her house at around 10.30 am from the market, she came to know that her 7(seven) year old daughter had been raped. She immediately went to the house of the appellant, who ran away, when he was seen. PW-1, thereafter, took the victim girl to the Hospital, wherein, she was treated. PW-1 stated that the condition of her daughter was very bad and while washing her, there were bite marks on her face and another one on her breast. 9. The evidence of the victim girl i.e. PW-3, is to the effect that, Raju, Santu and herself, were playing outside the house of Raju. Thereafter, she went inside the house to drink water in the kitchen. The appellant suddenly caught her from her behind and blocked her mouth with his hand. 9. The evidence of the victim girl i.e. PW-3, is to the effect that, Raju, Santu and herself, were playing outside the house of Raju. Thereafter, she went inside the house to drink water in the kitchen. The appellant suddenly caught her from her behind and blocked her mouth with his hand. Thereafter, he took off her clothes and raped her. The appellant also bit her face and her breast. She has also stated that as she could not walk after the incident, Santu carried her from the appellant''s house to her house. The evidence of the victim girl, is reproduced, herein, below: wxyz "...Court Question: zyxw wxyz Q.No.1. in which class do you read and what is the name of your school? zyxw wxyz Ans. I read in Class-III at Nampong Govt. Middle School. zyxw wxyz Q.No. 2. Can you answer whatever the advocate will put question to you? zyxw wxyz Ans. I will tell whatever was happen to me. zyxw wxyz Question by PP zyxw wxyz I know the accused standing on the dock his name is Munmun, but I used to call him Bhaiya(brother). As per my school record my name is Laxmi Rai, but nick name is Khusi Rai. On that day my mother and the mother of Raju went to Nampong market. Therefore, myself, Raju and Santu, were playing outside of Raju''s house. After sometime I went inside of Raju''s house in the kitchen to drink water, suddenly accused came from behind and caught me and blocked my mouth by his hand, thereafter I was taken to a room and had done bad thing to me. First he laying me down on the bed and open my long pant and under pant and had done bad thing to me. Accused also open his half pant. He also bite me on my face and on my breast. He had inserted his male organ inside my private part. After the incident, I could not walk myself, therefore I was carried by Santu bhaiya from that house to my house. When my mother came back from market I narrated the incident to my mother. I have also narrated the incident to Raju bhaiya. Then my mother had gone the house of accused. Thereafter I was taken to hospital by my mother. Doctor have examined my whole body. When my mother came back from market I narrated the incident to my mother. I have also narrated the incident to Raju bhaiya. Then my mother had gone the house of accused. Thereafter I was taken to hospital by my mother. Doctor have examined my whole body. My mother had reported the matter to the police on the same day. I have given my statement to the police. P. Exh-2(a), (b) & (c) are my signature, I can identify my signature. zyxw wxyz I don''t remember before how many years the incident took place. It is not the fact that the accused was sleeping in that house when I came inside to drink water. I can''t say for how much time or minutes the accused was inside at that time to do bad thing with me. It is not the fact that the accused not slap me at the time of incident. I don''t remember if I went to Magistrate court to give my statement. I also not remember where I have signed P.Exh-2(a), (b) & (c). I don''t know if police have seized my cloth. " zyxw 10. The evidence of the victim girl, wherein, she states that she had been carried by Santu is corroborated by the said Santu Tamang (PW-2) in his evidence, wherein, he states that the victim girl was not able to walk for herself and that he carried her on his back. The evidence of PW-2 is reproduced, herein, below: wxyz "...I know the accused standing on the dock, he is Munmun. On that day myself and my friend Raju were playing outside the house of Raju, victim Khusi was sleeping inside the house of Raju. Our parents were went to Nampong. Meantime, accused arrive in that area and entered inside the house of the Raju where Miss Khusi was sleeping. Accused locked the door inside. After sometime Khusi came out from the house and told us not to tell anybody, otherwise we four will be in trouble. Miss Khusi was not able to walk for herself, therefore we carried her to her house. I myself had carried her on the back of my body. Accused locked the door inside. After sometime Khusi came out from the house and told us not to tell anybody, otherwise we four will be in trouble. Miss Khusi was not able to walk for herself, therefore we carried her to her house. I myself had carried her on the back of my body. Before the incident, when accused locked the door of the house, we tried to see the incident by peeping from outside of the house through a hole, accused noticed us and told us not to see the same and make us fled from the area. I have given the same statement to police." zyxw 11. The evidence of PW-5, i.e. Dr. Achu Chena, is to the effect that, while she was posted in the year 2012 at PHC Nampong, as Medical Officer, the victim girl was brought by her mother on 06.10.2012, at about 6.30pm, for examination. On examination, she found a recent tear in the hymen and the Libya Minora had an abrasion and it was tender. The opinion of the Medical Doctor (P.W-5) is that there were signs of recent vaginal penetration. 12. The evidence of P.W.- 4 is only with respect to the medical examination done on the appellant. PW.6 is the I.O., who had submitted the charge-sheet. The evidence of PW-9 i.e. the Magistrate First Class, who had recorded the confessional statement of the appellant, under Section 164 Cr.P.C., is to the effect that the appellant had confessed to attempting to rape the victim girl. 13. In the present case, we don''t find any reason to doubt the statement of the victim girl, especially, when the same has been corroborated by medical evidence and by her friend Santu (PW-2), who had carried her after the incident. 14. In the case of Narender Kumar Vs. State (N.C.T. of Delhi), (2012) 7 SCC 171 , the Apex Court has held that it is a settled legal proposition that once the statement of 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. 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. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. 15. In the case of Dattu Ramrao Sakhare and Ors. Vs. State of Maharashtra, (1997) 5 SCC 341 , the Apex Court has held that the evidence of a child witness can be the basis of conviction if the child witness is found competent to depose the facts and is reliable. 16. In the case of State of Uttar Pradesh vs. Krishna Master & Ors., (2010) 12 SCC 324 , the Apex Court has held that, "This Court is of the firm opinion that it would be doing injustice to a child witness possessing sharp memory to say that it is inconceivable for him to recapitulate facts in his memory witnessed by him long ago. A child of tender age is always receptive to abnormal events which take place in its life and would never forget those events for the rest of his life. The child would be able to recapitulate correctly and exactly when asked about the same in future. Therefore, the spacious ground on which the reliable testimony of PW2, Madan Lal came to be disbelieved can hardly be affirmed by this Court". 17. A perusal of the Appeal petition filed by the appellant, also, shows that he had admitted to having sexual intercourse with the victim girl. Paragraph Nos. 4 and 5 of the appeal petition is reproduced herein below: wxyz "...4. That, your Appellant begs to submit that he had not commit any rape upon the victim girl, and has wrongly convicted in this instance session case without any credible evidence and finding. zyxw wxyz 5. Paragraph Nos. 4 and 5 of the appeal petition is reproduced herein below: wxyz "...4. That, your Appellant begs to submit that he had not commit any rape upon the victim girl, and has wrongly convicted in this instance session case without any credible evidence and finding. zyxw wxyz 5. That, your Appellant begs to submit that on the day of the fateful incident (i.e.; 06/10/2012), while the convict taking rest on his bed, the victim girl came to his bed room and asked the convict to sleep with her on his bed on which the convict denied as she is just a small kid and made a joke on her, thereafter the convict sleep on his bed and the victim went out of his home, while the convict was in deep sleep he suddenly realized that the said victim girl was also sleeping aside with him on the same bed, so the convict lost his mind and tried to do sexual intercourse with the victim, but he fail to do the same as there were people gathering outside his house and in no time some people enter into his house and grabbed him and started to physically assaulting him and later on handed over to the Changlang Police." zyxw 18. In the present case, the Trial court has not doubted the reliability of the victim girl and we also do not have any reason to differ from the same. In fact, the statement of the victim girl inspires confidence and as such, is also accepted by us. As can be noticed, the events are closely connected and there was no delay in the filing of the complaint vis- -vis the incident. There is nothing to show that there was any enmity or bad blood between the family of the victim girl or the appellant. The very fact that the appellant has admitted to "attempt to rape" during his confessional statement given under Section 164 Cr.P.C and during his statement given under Section 313 Cr.P.C., clearly indicates that he was involved with the victim girl, on the said date. The fact that the victim girl, who was only 7(seven) years, having bite marks on her breast and face, also shows the depravity of the appellant. The fact that the victim girl, who was only 7(seven) years, having bite marks on her breast and face, also shows the depravity of the appellant. As the evidence of the victim girl has been corroborated by other witnesses, we don''t find any ground to interfere with the impugned judgment dated 28.06.2017, passed by the trial Court. 19. Accordingly, the present appeal is dismissed. 20. Send Back the L.C.R. 21. In appreciation of the assistance provided by the learned Amicus Curie, her legal fees is fixed at Rs. 7500/-, which shall be paid by the Arunachal Pradesh Legal Service Committee.