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2020 DIGILAW 451 (GAU)

Muni Rai v. State Of Mizoram

2020-04-28

MICHAEL ZOTHANKHUMA, NELSON SAILO

body2020
JUDGMENT Michael Zothankhuma, J. - Heard Mr. Lalfakawma, learned Amicus Curiae and Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor. 2. This is an appeal against the Judgment & Order dated 28.03.2017 passed by the Court of the Addl. Sessions Judge, Lunglei in Criminal Trial No. 486/2014 under Lawngtlai P.S Case No. 69/2014, by which the appellant has been convicted under Section 376 (2) (l) IPC and sentenced to undergo 10 (ten) years 6 (six) months rigorous imprisonment along with a fine of Rs. 70,000/-, in default, S.I for 6 (six) months vide order dated 06.04.2017. 3. The prosecution story in brief is that on 27.11.2014, one C. Sangkila of Lawngtlai lodged an FIR at Lawngtlai Police Station, to the effect that on 27.11.2014, between 11:00 AM and 12:00 noon, his mentally and physically challenged daughter, aged 29 years, was raped by an unknown person in their house. On the basis of the FIR, Lawngtlai P.S Case No. 69/2014 dated 27.11.2014 under Section 376 (2)(l) IPC was registered on 27.11.2014. The prosecutrix was produced before a Medical Officer on 27.11.2014 at around 4:55 PM. After investigation was concluded, the I.O filed a charge-sheet. 4. Charge was framed against the appellant under Section 376 (2)(l) IPC on 10.04.2015 and trial was initiated. 7 (seven) prosecution witnesses were examined. Thereafter, the statement of the appellant was recorded under Section 313 Cr.PC. The learned Trial Court thereafter convicted the appellant under Section 376(2)(l) IPC vide Judgment & Order dated 28.03.2017 passed in Criminal Trial No. 486/2014 and sentenced him to undergo rigorous imprisonment for 10 years 6 (six) months with a fine of Rs. 70,000/-, in default, S.I for 6 (six) months, vide order dated 06.04.2017. Being aggrieved, the appellant has filed the present appeal. 5. The learned Amicus Curiae submits that the impugned judgment & order has to be set aside in view of the fact that the evidence adduced does not prove that the appellant is guilty of the crime. He submits that the evidence given by PW-1 and PW-3 are in contradiction to one another, with respect to the manner in which the alleged incident of rape came to light. He submits that the evidence given by PW-1 and PW-3 are in contradiction to one another, with respect to the manner in which the alleged incident of rape came to light. He also submits that the PW-3 in her evidence had stated that the prosecutrix had told her that the appellant had raped her and that the prosecutrix had also stated that her underpant had blood stains due to the said rape. However, there was no mention of any blood stain by any other witnesses including the prosecutrix during the evidence stage. Further, it was not proved as to whose blood had stained the underpants of the prosecutrix. 6. The learned Amicus Curiae also submits that the prosecutrix had in her evidence stated that the appellant, before locking the door of her house in which the appellant had raped her, asked the younger sister of the prosecutrix, i.e., Rinrini to go outside. The prosecutrix also stated that while the appellant and the prosecutrix were inside the house, Rinrini knocked on the door, but the appellant told Rinrini that she could not enter the house. The learned Amicus Curiae submits that while the evidence of Rinrini was vital to prove whether the appellant was with the prosecutrix inside the house at the relevant time, the said Rinrini was never made a witness by the Police in the rape case. 7. The learned Amicus Curiae also submits that there was no injury marks on the appellant except for an abrasion near the urethral opening and that the hymen was absent. He also submits that there was no eye witness to prove that the appellant and the prosecutrix had entered the house of the prosecutrix or that the appellant had left the house of the prosecutrix. He accordingly submits that in view of the above facts and evidence, there was no proof of the appellant having committed the act of rape against the prosecutrix. He thus prays for setting aside and quashing the impugned judgment & order. 8. Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor, on the other hand, submits that the evidence of rape is clear from the evidence adduced, inasmuch as, PW-3, in her evidence, had stated that she had seen the appellant come to her shop where the prosecutrix was also present. 8. Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor, on the other hand, submits that the evidence of rape is clear from the evidence adduced, inasmuch as, PW-3, in her evidence, had stated that she had seen the appellant come to her shop where the prosecutrix was also present. However, PW-3 subsequently went inside her shop and when she came out again, she found that the appellant and the prosecutrix had gone somewhere. One hour later, the prosecutrix again came to her shop where she reported to PW-3 that the prosecutrix and the appellant had gone to her house, where the appellant had raped her. The learned Addl. Public Prosecutor thus submits that the above statement of the prosecutrix clearly proves the fact that the appellant had raped the prosecutrix. 9. The learned Addl. Public Prosecutor also submits that the appellant, while on bail during the Trial Court proceedings, had submitted a fake death certificate and only after it was found that the death certificate was a fabricated document that the appellant was again re-arrested. She submits that as the statement of the prosecutrix inspires confidence, the impugned judgment & order should be upheld. 10. We have heard the learned counsels for the parties. 11. The medical report of the prosecutrix, which was made on 27.11.2014 states that the prosecutrix was "mentally challenged according to her speech & behaviour". The medical report also records "YES" with regard to the caption "previous intercourse". 12. The Disability Certificate No. MR-27 dated 18.06.2009 issued to the prosecutrix by a Dr. John Ralte, Psychiatrist is to the effect that the prosecutrix suffered from mental retardation and her percentage of disability was 50%. 13. A perusal of the impugned judgment & order and the evidence adduced goes to show that the basis for the conviction of the appellant for rape is due to the statements made by the prosecutrix (PW-2), which is as follows:- "Translation of the deposition of PW No. 2 Lalbiakdiki from Mizo to English by the Court. 11th May 2016 wxyz I was in the house of Pu Zama. He called me. Both of us went to my house. He told me to lie down and I lied down on the long chair. He told me that if I disobey him he will beat me. He removed my clothes. On that day I was wearing a knicker. 11th May 2016 wxyz I was in the house of Pu Zama. He called me. Both of us went to my house. He told me to lie down and I lied down on the long chair. He told me that if I disobey him he will beat me. He removed my clothes. On that day I was wearing a knicker. He removed my knickers and underpant. But he did not remove my blouse. Then he unzipped his pant and inserted his male organ into my private part (pointing to her private part). I also saw his penis. He did like that for a long time. On that day my family members were not at home, I was with my younger sister Rinrini. Before locking the door the accused said that my sister should be outside the house and so he told her to go outside. Rinrini knocked the door but he told her that she could not enter. His penis was very hard and I felt severe pain while passing urine. Then he left my house, I kept looking at him and he told me not to stare at him and he gave me Rs. 5/-. After that I did not look at him. I told the incident to my sister. Prior to this the accused have not committed similar act upon me. XXX by DL zyxw wxyz 1. At the time of the incident Rinrini knocked the door but we did not open. zyxw wxyz 2. I have never had love affairs. zyxw wxyz 3. He was not our guest. zyxw wxyz 4. I have seen him before. He used to come to my house in the absence of my father. During his such visits we did not have other guests also. zyxw wxyz 5. He was lying when said he could heal by massaging. zyxw wxyz 6. Earlier he used to come with an ointment for massage and he used to massage me but have nevery sexually assaulted me. zyxw wxyz 7. He lied to me when he said he could cure by massaging with his ointment. zyxw wxyz 8. I did not have any other pain except in my private part. zyxw wxyz 9. My next door neighbor is very close, our shout would be audible to them. zyxw wxyz 10.My mother told me what to say in the court. Re-examination by Ld Addl. zyxw wxyz 8. I did not have any other pain except in my private part. zyxw wxyz 9. My next door neighbor is very close, our shout would be audible to them. zyxw wxyz 10.My mother told me what to say in the court. Re-examination by Ld Addl. PP My mother did not tell me to lie. She told me to say what happened to me." zyxw 14. The evidence of PW-3, i.e., Lalrempuii, from whose shop the prosecutrix had disappeared for one hour is to the following effect:- "On S/A: wxyz I know accused Muni Rai who is present in the court today. I do not remember the date but it was sometime in the month of November 2014, while I was sitting in front of my shop, one C. Lalbiakdiki came and joined me. Shortly after, the accused Muni Rai also came to us. I entered into my shop and when I went out I found that the accused and the victim had gone somewhere. After more than one hour the victim alone came down to our shop. She reported to me that they had gone to her house and the accused had raped her. She further reported that her underpant had got blood stain due to the forcible sexual intercourse committed by the accused with her. Her father attended the office on that day and her mother was in the jhum. When they came home I reported the matter to them. The victim is a disabled person physically and mentally. The parents of the victim went to the Police station and submitted FIR. XXX by D/L zyxw wxyz 1. It is a fact that I did not see the alleged incident as I was in my shop. zyxw wxyz 2. It is not a fact that the victim did not report to me about the commission of rape. zyxw wxyz 3. It is a fact that I did not see the underwear of the victim. zyxw wxyz 4. It is not a fact that the victim is a normal person. zyxw wxyz 5. It is not a fact that the victim looked quite normal when I saw her. zyxw wxyz 6. It is a fact that I do not know whether there was love relationship between the accused and the victim. zyxw wxyz 7. zyxw wxyz 4. It is not a fact that the victim is a normal person. zyxw wxyz 5. It is not a fact that the victim looked quite normal when I saw her. zyxw wxyz 6. It is a fact that I do not know whether there was love relationship between the accused and the victim. zyxw wxyz 7. It is a fact that I did not see any tear of the clothes of the victim and I did not look at her closely. zyxw wxyz 8. It is not a fact I have falsely deposed my statement in this court today." zyxw 15. The evidence of PW-1, who is the father of the prosecutrix is to the effect that on the day of the incident, his wife had gone to the jhum field while the younger child attended school. The other child, who had just completed M.A was in the office of the Employment Exchange Officer to register himself. Accordingly, he had kept his daughter in the house of their next door neighbor (PW-3), instead of leaving her alone in the house. The evidence of PW-1 is also to the effect that his next wxyz door neighbor had given him a call and informed him about the incident around 11 AM. zyxw 16. The evidence of PW-1 is at variance with the evidence of the prosecutrix, who stated that on the day she was raped, she was with her younger sister Rinrini and Rinrini was told to go outside the house by the appellant. That Rinrini knocked on the door but was told by the appellant that she could not enter the house. As can be seen from the records, there is no investigation done by the I/O with respect to whether Rinrini was present with the prosecutrix during the relevant time. Rinrini was never made a witness and no statement of hers was recorded by the I/O. The above being said, PW-3, who is the next door neighbor, in her evidence stated that she reported the incident to PW-1, i.e. the father of the prosecutrix, when PW-1 came home. Though there seems to be some inconsistency in the statement made by PW-1 and PW-3 with regard to how the alleged incident was communicated to PW-1, this Court is of the view that this minor inconsistency does not vitiate the prosecution case. Though there seems to be some inconsistency in the statement made by PW-1 and PW-3 with regard to how the alleged incident was communicated to PW-1, this Court is of the view that this minor inconsistency does not vitiate the prosecution case. This is due to the fact that PW-3 could have initially informed PW-1 of the incident by Mobile and later by word of mouth, when he came home. 17. The evidence of PW-3 is to the effect that the prosecutrix had informed her that the underpant of the prosecutrix had a blood stain due to the appellant raping the prosecutrix. This statement is neither corroborated nor proved by the prosecution. PW-3 in her cross- examination has stated that she did not see the underwear of the victim. Further, the police did not seize any underwear from the prosecutrix. Also, there is no statement made by any of the witness, except the prosecutrix, with regard to any blood stain in the underwear of the prosecutrix. The evidence of PW-5, i.e. the Doctor is to the effect that the hymen was absent as the rupture on the hymen was an old rupture. PW-5 also stated that from the finding of the hymen itself, it could not be concluded that there was recent sexual intercourse. Keeping in view the fact that the medical examination of the prosecutrix had taken place approximately 5-6 hours after the incident, it appears that the rupture on the hymen was not made by the appellant, though this does not mean that the prosecutrix could not have been raped by the appellant. 18. The evidence of the prosecutrix in her examination-in-chief is that the appellant had given her Rs. 5 after the incident. However, the statement made by the prosecutrix before the Magistrate under Section 164 Cr.PC states that the appellant had given her Rs. 10 after the incident. Surprisingly, the statement of the prosecutrix given to the Magistrate has not been exhibited and neither has the said Magistrate been examined by the Trial Court. However, in this respect, this Court is of the view that the prosecutrix being a mentally challenged person, the inconsistency in the denomination amount does not affect the Prosecution case as the same is a minor inconsistency. 19. However, in this respect, this Court is of the view that the prosecutrix being a mentally challenged person, the inconsistency in the denomination amount does not affect the Prosecution case as the same is a minor inconsistency. 19. The facts, as narrated above, clearly goes to show that the conviction of the appellant by the learned Trial Court has been made solely on the basis of the evidence given by the prosecutrix. However, the evidence of the prosecutrix is not only to the effect that the appellant had raped her, but that her younger sister Rinrini was told to go outside the house by the appellant, prior to raping the prosecutrix. Thus, Rinrini is a vital witness who could prove whether the appellant and the prosecutrix were in the house at the relevant time. Surprisingly, Rinrini was not made a witness by the I/O. It does not seem proper for the Trial Court to have accepted only a part of the evidence of the prosecutrix and not try to find out the truth about the presence of Rinrini at the relevant time. 20. The evidence of the prosecutrix in her cross-examination is to the effect that her mother had told her what to say in Court. This has however been in clarified by the prosecutrix during her re-examination, wherein she stated that her mother told her to say what happened to her. Keeping in view the fact that the prosecutrix is a mentally challenged person, the explanation given by the prosecutrix appears to be quite convincing. However, the prosecution and the learned Trial Court should have corroborated the story of the prosecutrix by examining the younger sister of the prosecutrix, i,e., Rinrini. In that view of the matter, we are of the view that Rinrini should be called as a Court witness by the Trial Court and her evidence adduced. The evidence of Rinrini could conclusively prove the evidence of the prosecutrix, regarding the presence of the appellant and the prosecutrix at the relevant time in the place of incident. 21. In the case of Mukesh vs. State (NCT of Delhi & Others, (2017) 6 SCC 1 , the Apex Court has held that : wxyz "The Court must act with utmost sensitivity and appreciate the evidence of the prosecutrix in view of settled legal principles. 21. In the case of Mukesh vs. State (NCT of Delhi & Others, (2017) 6 SCC 1 , the Apex Court has held that : wxyz "The Court must act with utmost sensitivity and appreciate the evidence of the prosecutrix in view of settled legal principles. 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 it should not be swayed by minor contradictions and discrepancies in appreciation of evidence of the witnesses which are not of a substantial character." The Apex Court further held that there is no legal compulsion to look for corroboration of the prosecutrix''s testimony unless the evidence of the victim suffers from serious infirmities, thereby seeking corroboration. In the present case, though there is no serious infirmity in the testimony of the prosecutrix, the prosecutrix having stated that Rinrini was also present during the relevant time, the learned Trial Court should have made an endeavour to examine Rinrini as a Court witness, as the Prosecution/I.O. did not make her a witness. zyxw 22. The Judgment of the Apex Court in Mukesh & Another (Supra) is with regard to the evidence given by a normal prosecutrix, who does not suffer from any mental problem/retardation. However, in the present case, the prosecutrix is a mentally challenged person. Section 118 of the Evidence Act allows for a mentally challenged person to be a competent witness, if he is not prevented due to his illness from understanding the questions put to him/her and giving rational answers to them. Section 118 of the Evidence Act, 1872 is as follows : wxyz "118. Who may testify All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind." Explanation. - A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. zyxw 23. The observation of the Trial Court while recording the evidence of the prosecutrix is reproduced below : wxyz "Observation of Court. The witness is stammering. Plain language has to be explained to frame a meaningful question. zyxw 23. The observation of the Trial Court while recording the evidence of the prosecutrix is reproduced below : wxyz "Observation of Court. The witness is stammering. Plain language has to be explained to frame a meaningful question. From her answers it appears that she understood the questions. Long sentence confused her. A friendly atmosphere had to be created in the room. Her speech is not clear and she soft spoken. From her demeanour it can be observed her IQ level is low" zyxw wxyz A perusal of the above juxtaposed with the evidence adduced shows that the prosecutrix has understood the questions put to her and has also given rational replies to them. However, as stated earlier, the evidence given by the prosecutix shows that Rinrini, the younger sister of the prosecutrix, was also in the room and as such, Rinrini should have been examined by the Trial Court. zyxw 24. In view of the reasons stated above, the case is remanded back to the Trial Court for examining Rinrini as a Court witness and thereafter to proceed with the case for final adjudication. The rival parties will also be at liberty to cross examine the said Court witness. Consequently, the impugned Judgment & Order dated 28.03.2017 and Sentence Order dated 06.04.2017 passed by the Court of the learned Addl. Sessions Judge, Lunglei in Criminal Trial No. 486/2014 is hereby set aside. 25. A perusal of the Lower Court Records and the evidence given by the witnesses i.e. (1) J.B Vanlalnghaka, s/o Chondi Chondro, r/o Darnam Tlang, Lawngtlai District, Headmaster of Primary School, Darnam Tlang. (2) Pari, wife of the appellant and (3) Roluahpuia r/o Kawrthindeng, Bungtlang, Lawngtlai regarding the genuineness of the death certificate of the appellant, shows that the Death Certificate bearing Registration No. 106487 issued on 30.08.2015, showing the appellant as a dead person, was a fabricated document. In view of above, the Trial Court is directed to ensure that a case is registered in respect of the fake Death Certificate mentioned above, showing the death of the appellant on 25.08.2015 and which is in file-''B''. 26. Before parting, we wish to observe the casual investigation conducted by the Police, especially by not examining Rinrini or making her a witness. In the course of examination of the case, we find several shortcoming and pitfalls. 26. Before parting, we wish to observe the casual investigation conducted by the Police, especially by not examining Rinrini or making her a witness. In the course of examination of the case, we find several shortcoming and pitfalls. However, in view of the seriousness of the case, the shortcomings in the case, the minor inconsistencies and contradictions cannot be a ground for throwing out the prosecution case. 27. Send back the LCR. 28. In appreciation of the assistance provided by Mr. Lalfakawma, learned Amicus Curiae, his fee is fixed at Rs. 9,000/- which is to be paid by the Mizoram State Legal Services Authority.