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2020 DIGILAW 667 (GAU)

J. Lalruatsanga v. State of Mizoram

2020-09-16

MICHAEL ZOTHANKHUMA, NELSON SAILO

body2020
JUDGMENT : Nelson Sailo, J. 1. Heard Mr. B. Lalramenga, the learned counsel for the accused/appellant and Mr. C. Zoramchhana, the learned Public Prosecutor, Mizoram appearing for the State respondent. None appears for the respondent No. 2. 2. This is an appeal filed by the appellant against the Judgment and Order dated 28.10.2019 passed by the Sessions Court, Lunglei Judicial District, Lunglei, Mizoram in Criminal Trial No. 233/2016, whereby he was convicted under Sections 376-D and 342 of the Indian Penal Code (IPC). For his conviction under section 376-D IPC, he was sentenced to undergo Rigorous Imprisonment for 20 years and to pay fine of Rs. 1000/- and in default thereof, he was directed to undergo a further Simple Imprisonment for one month vide Order dated 11.11.2019. Further, the appellant for his conviction under Section 342 IPC was sentenced to undergo Rigorous Imprisonment for 6 months with a fine of Rs. 1000/- and in default thereof, he was sentenced to undergo Simple Imprisonment for one month. Both the sentences for conviction under Sections 376-D and 342 were directed to run concurrently. 3. The case of the prosecution in brief is that a written FIR was submitted before the Officer-in-Charge, Lawngtlai Police Station on 26.12.2015 by the respondent No. 2 stating that between 3.00 - 4.00 pm on that day, the appellant and Benjamina S/o. Thawmmawia, both from Rulkual village had taken her to Tawngtaina (prayer) View Point in a Pick-up vehicle against her will and after threatening her with a knife and forcing her to consume alcohol, they stripped and raped her. As a result, Lawngtlai PS Case No. 62/2015 dated 26.12.2015 under Sections 376-Dand 342 of the IPC was registered and investigations conducted. 4. Following the investigation, both the appellant and Benjamina were arrested. Since Benjamina was a juvenile, he was forwarded to the Principal Magistrate, Juvenile Justice Board (JJB) to be placed in an observation home. After the investigation was completed, the Investigating Officer having found a prima facie case against the appellant submitted a chargesheet before the Chief Judicial Magistrate, Lawngtlai, who in turn committed the case to the Court of Sessions on 22.08.2016. Prior to the filing of the chargesheet, the appellant was released on bail on 20.04.2016. The Court of Sessions then framed the charge under Sections 376-D and 342 IPC. The appellant however pleaded not guilty and claimed for trial. Prior to the filing of the chargesheet, the appellant was released on bail on 20.04.2016. The Court of Sessions then framed the charge under Sections 376-D and 342 IPC. The appellant however pleaded not guilty and claimed for trial. As a result, trial commenced against the appellant and to establish their case, the prosecution examined 10 prosecution witnesses while the defence examined only one witness. After the parties led their respective evidences, the appellant was examined under Section 313 of the CrPC whereafter, the Court below upon hearing the rival parties, passed the impugned Judgment and Order of conviction and the Order of Sentence as already mentioned herein above. 5. Mr. B. Lalramenga, the learned counsel for the appellant by referring to the medical examination report of the alleged victim submits that no influence of alcohol or drug was found on her and that there was no mark of violence on her body except that her panty and short pant were found to be torn. There was no bruising/laceration of her external genitalia and that only remnant of hymen was found to be present. The learned counsel submits that the medical examination was done at 10.00 pm on the date of the alleged incident and that if the victim had indeed been gang raped between 3.00 - 4.00 pm on that day, the medical examination report of the victim would have clearly shown the crime committed upon her. The version of the victim is therefore not supported by the medical report and as such, he entitled to be given the benefit of doubt. 6. The learned counsel for the appellant by drawing the attention of the Court to the evidence of the Doctor, who was examined as PW-1 submits that the said witness reiterated the findings that he recorded in the medical examination report of the victim. He also stated that he examined Benjamina on the same day of the alleged incident at 10.40 pm after he was arrested and found him to be under the influence of alcohol. He did not find any marks of violence on his body and that smegma which was usually formed within 24 hours after the organ is washed was not present around the corona gland. He also stated that there can be absence of smegma due to recent sexual intercourse or washing of the organ. He did not find any marks of violence on his body and that smegma which was usually formed within 24 hours after the organ is washed was not present around the corona gland. He also stated that there can be absence of smegma due to recent sexual intercourse or washing of the organ. He did not find any injury on conducting genital examination. The learned counsel further submits that the evidence of PW-1 clearly does not support the case of the prosecution and therefore, the conviction of the appellant cannot be sustained. 7. The learned counsel for the appellant submits that no case of gang rape or rape upon the victim has been made out by the prosecution inasmuch as the evidence led by the prosecution does not corroborate the statement of the prosecutrix. There are contradictions and inconsistencies in the evidence of the prosecution such as the prosecutrix having stated in the statement recorded under Section 164 CrPC that soon after the incident, she entered the house of PW-4 and requested him to call her husband. PW-4 did not have a mobile phone but however, during the trial, the prosecutrix in her evidence deposed that when she asked PW-4 to call her husband, PW-4 told her that her husband did not pick up or respond to the call. Therefore, there being glaring infirmities and inconsistencies in the evidence led by the prosecution, the conviction of the appellant cannot be sustained. 8. Mr. B. Lalramenga, the learned counsel also submits that the prosecutrix willfully and voluntarily accompanied the appellant and the co-accused while they were going to the house of Sh. Dinga by vehicle to apologise for running over his hen. That while on the vehicle, the prosecutrix's husband saw her with the appellant and the co-accused and they having spent some time in the outskirts of R. Vanhne village, it can safely be concluded that the prosecutrix made up a fabricated story against the appellant in order to avoid her husband's suspicion and wrath. The learned counsel submits that the prosecutrix was not wrongly confined by the appellant and the co-accused and that she voluntarily boarded the vehicle. The learned counsel submits that the prosecutrix was not wrongly confined by the appellant and the co-accused and that she voluntarily boarded the vehicle. Further, when she saw her husband waving to her while she was on the vehicle, she neither shouted nor asked for any help from anyone which only shows that she was not restrained by the appellant and the co-accused in any manner. 9. The learned counsel referring to Section 376-D of the PC submits that the case projected by the prosecution lacks the basic ingredient to constitute gang rape. He submits that in order to attract Section 376-D, the basic ingredient is the acting of a group of persons in furtherance of a common intention. The fact of there being a common intention has not been established by the prosecution and moreover, the co-accused though kept in an observation home initially had since been released from there and that no proceeding has been drawn against him. This fact is clear from the reply made by the authority concerned to the RTI application made by one Lalthlamuana of Bazar Veng Lunglei on behalf of the appellant. The learned counsel thus submits that under the facts and circumstances of the case, the impugned Judgment and Order convicting and sentencing the appellant cannot be sustained and the same should be set aside. In support of his submission, the learned counsel relies upon the following authorities:- (i) Joseph S/o. Kooveli Poulo Vs. State of Kerala, (2000) 5 SCC 197 . (ii) Lalliram & Anr. Vs. State of Madhya Pradesh, (2008) 10 SCC 69 . (iii) Mussauddin Ahmed Vs. State of Assam, (2009) 14 SCC 541 . (iv) Pardeep Kumar Vs. Union Administration, Chandigarh, (2006) 10 SCC 608 . (v) Om Prakash Vs. State of Haryana, (2011) 14 SCC 309 . 10. Mr. C. Zoramchhana, the learned Public Prosecutor on the other hand referring to the evidence of PW-1 submits that the Doctor although did not find marks of violence in the body of the prosecutrix, but her underwear as well as the short pants she was wearing were both torn. Also the medical examination report of the co-accused Benjamina clearly revealed that smegma was not found. The same only indicates that he recently had sexual intercourse. Also the medical examination report of the co-accused Benjamina clearly revealed that smegma was not found. The same only indicates that he recently had sexual intercourse. The learned Public Prosecutor further submits that the statement of the prosecutrix recorded by the Judicial Magistrate First Class clearly revealed the manner in which the crime was committed upon the prosecutrix. Her statement has also been corroborated by the evidence of the other prosecution witnesses including the statement of the victim/prosecutrix herself before the police and during trial. Therefore, it is clear that charge against the appellant has been established by the prosecution. 11. The learned Public Prosecutor submits that it is a settled law that the version of the prosecutrix alone is enough to convict an accused person in an offence of rape. In the instant case also, the version of the prosecutrix is reliable and cogent and therefore, even in the absence of corroboration, the evidence of the prosecutrix alone is sufficient to convict him. Thus, the learned Trial Court did not commit any error in passing the impugned Judgment and Order of conviction against the appellant and the Order of Sentence. In support of his submission, the learned Public Prosecutor relies upon the following authorities:- (i) Vijay @ Chinee Vs. State of Madhya Pradesh, (2010) 8 SCC 191 . (ii) Mohd. Iqbal & Anr. Vs. State of Jharkhand, (2013) 14 SCC 481 . 12. We have heard the submissions made by the learned counsels for the rival parties and we have also perused the materials available on record including the lower court record. 13. Let us now examine the evidence led by the prosecution through the prosecution witnesses. Against the charge framed under Sections 376-D/342 IPC, the appellant pleaded not guilty and claimed for trial and accordingly, the trial commenced. Dr. C. Lalduhsaka as PW-1 in his examination-in-chief stated that on 26.12.2015, he received a requisition from the police for examination of the victim in connection with the offence of rape. He examined her on the same day at 10.00 pm and found her to be of normal physical and mental health. She was not under the influence of drugs or alcohol and he did not find any marks of violence on her body. However, her underpant and short pants which she was wearing were both torn. On examining her genital, he did not find any bruise or laceration externally. She was not under the influence of drugs or alcohol and he did not find any marks of violence on her body. However, her underpant and short pants which she was wearing were both torn. On examining her genital, he did not find any bruise or laceration externally. Only remnants of hymen was present and according to the victim, she was having three children. 14. PW-1 further stated that on the same day at 10.40 pm, he examined the accused/appellant and found him to be under the influence of alcohol. He did not find any marks of violence on his body. He did not find the presence of smegma around the corona gland. According to him, there can be absence of smegma due to recent sexual intercourse or washing of the organ. He did not find any injury on genital examination or any marks of violence in his body. PW-1 accordingly exhibited the medical examination report of the victim, his signature, the medical examination report of the accused appellant, his signature and likewise the medical examination report of the co-accused Benjamin Lalhriatzuala and his signature, as exhibits P-I, P-I(a), P-II, P-II(a), P-III and P-III(a) respectively. In his cross-examination, PW-1 stated that he was not personally acquainted with the accused and that he was not a Gynecologist. He also stated that a female attendant was present when he examined the victim and that at the time of genital examination, he did not find any semen. He also did not see any stain in the underwear and short pants of the victim. 15. S.I. Rebecca Hmingsangzuali was examined as PW-2. In her examination-in-chief, she stated that she knew the accused appellant and with effect from the month of July, 2013 upto March, 2016, she was posted at Lawngtlai. She further stated that an FIR was lodged by the victim at Lawngtlai Police Station on 26.12.2015, whereafter Lawngtlai PS Case No. 62/2015 under Section 376-D IPC was registered and investigation was conducted by S.I V.H. Kilchema (PW-7). PW-7 as case I.O recorded the statement of the victim and forwarded her for medical examination and got her judicial statement recorded. He also arrested the accused appellant, interrogated him and recorded his statement. As one of the accused person was a juvenile, he forwarded him to the Principal Magistrate, Juvenile Justice Board, Lawngtlai. PW-7 as case I.O recorded the statement of the victim and forwarded her for medical examination and got her judicial statement recorded. He also arrested the accused appellant, interrogated him and recorded his statement. As one of the accused person was a juvenile, he forwarded him to the Principal Magistrate, Juvenile Justice Board, Lawngtlai. Further, as the offence involved crime against woman, PW-7 handed over the investigation alongwith all the connected papers to her. After she carefully examined the investigation already done by the previous case I.O, she did not find it necessary to conduct further investigation. But before she submitted the charge sheet, she was transferred elsewhere and she handed over the case to S.I Lallawmpuii, PW 10. In her cross examination, PW-2 reiterated what she stated in her examination-in-chief. 16. The prosecutrix was examined as PW-3. In her examination-in-chief, she deposed that she knew the accused appellant and that she was a resident of R. Vanhne. She was married and has three children. She stated that she came to know the accused appellant as he was in the same boarding school with her daughter and she considered him as a family member. She stated that although she did not remember the date of the incident, but it was during Christmas feast. On that day, while she was washing clothes the whole day in her house, the accused appellant and his friend Benjamin came inside her house and told her that they accidentally ran over a hen and therefore, they asked her to accompany them to ask for forgiveness from the owner of the hen. She therefore went with them in their vehicle to the house of one Mr. Dinga and Ms. Pari to ask for forgiveness. Although they readily forgive them but the sister of Mr. Dinga told them that the residents of Rulkual village were very careless and often ran over animals. She therefore asked the accused appellant a sum of Rs. 500/-. To such demand, the accused appellant got scared and said that they had only Rs. 500/- which they already spent in buying liquor. He therefore suggested that they should look for the husband of the prosecutrix to help them approach Mr. Dinga and his family again. So they went back to the vehicle and the prosecutrix saw her husband on the way and he even waved at the vehicle. 500/- which they already spent in buying liquor. He therefore suggested that they should look for the husband of the prosecutrix to help them approach Mr. Dinga and his family again. So they went back to the vehicle and the prosecutrix saw her husband on the way and he even waved at the vehicle. The prosecutrix stated that although she told the accused appellant to stop the vehicle on seeing her husband, but the co-accused Benjamin said that they did not require her husband but it was she whom they required. The accused appellant continued to drive the vehicle and Benjamin threatened her with a knife. When they reached the spot called 'Khawthlir', they stopped the vehicle and held her hands and forced her to drink liquor. The accused appellant raped her first and thereafter Benjamin followed suit. After the act, they took her back toward the village. After taking her phone, they pushed her out of the vehicle near the culvert at Vengthar. She went to the nearest house belonging to Mr. Thawngkunga (PW-4) and asked him to call her husband while crying. She was however told that her husband did not pick up the phone and therefore, she left their house and went to the house of Sh. Thatluangi (PW-6), who is the sister of the husband. The prosecutrix stated that she was not in her proper sense, perhaps due to the liquor forced upon her and which in fact spilled over her ear and nose. She therefore did not clearly remember what she had said to Smt. Thatluangi. From there, the prosecutrix went to her house and she was followed by some other persons also. In her house, except for her three children, there were no other person present and she spoke about the incident when the neighbours started to arrive. Both her underpant and boxer shorts were torn and her clothes were also soiled. Her clothes were soiled as she was pushed out of the moving vehicle. She went to the Police Station wearing the same underpant and boxer shorts and gave information to the police about the incident. The police then seized her underpant and boxer shorts and forwarded her for medical examination on the same night. Her clothes were soiled as she was pushed out of the moving vehicle. She went to the Police Station wearing the same underpant and boxer shorts and gave information to the police about the incident. The police then seized her underpant and boxer shorts and forwarded her for medical examination on the same night. The prosecutrix exhibited the FIR, her signature, the boxer shorts, the underpant, the Dao she saw in the vehicle and the small Dao which was used to threatened her as Exhibits P-IV, IV(a), M. Ext. -I, M. Ext-II, M. Ext-III and M. Ext-IV respectively. In her cross examination, the prosecutrix denied the suggestions made to her and she reiterated what she had stated in her examination-in-chief. 17. Sh. Thawngkunga was examined as PW-4 and in his examination-in-chief, he stated that he knew the accused appellant. On 26.12.2015, he was in his house with Smt. Zathuami, who was the sister of the husband of the prosecutrix. She stated that the prosecutrix came running to her house and asked her to call her husband. Although she tried to call her husband as requested but she could not get through the line. The prosecutrix was crying and she ran out of her house. She did not say anything about the incident and she came to learn about the same later on when she went to her house. In her cross examination, PW-4 reiterated what she stated in her examination-in-chief. She also stated that the prosecutrix was wearing long pants and was having a shawl when she came to her house on the day of the incident. She however stated that she did not know whether her pants where torn or not as the prosecutrix did not stay very long in her house. 18. Smt. Salemi was examined as PW-5. In her examination-in-chief, she stated that she knew the accused appellant and on 26.12.2015 in the afternoon, after the Christmas feast, she was in her house when her mother came and told her that the prosecutrix might have been raped and that she was going to her house. She therefore followed her mother. When they reached the house of the prosecutrix, they found her crying bitterly and when they asked her what actually happened, she said that she was raped by Benjamin and the accused appellant. She therefore followed her mother. When they reached the house of the prosecutrix, they found her crying bitterly and when they asked her what actually happened, she said that she was raped by Benjamin and the accused appellant. There were a number of other persons present and a decision was then taken to lodge an FIR. She accompanied the prosecutrix to the police station and saw the police seize the underpant and the boxer shorts of the prosecutrix which were torn. She later accompanied the prosecutrix for medical examination and she put her signature in the Seizure Memo in the Police Station. PW-5 exhibited the Seizure Memo in respect of the underpant and the boxer shorts and her signature as exhibits P-V and P-V(a) respectively. She also exhibited the boxer shorts and the underpant as M. Ext-I and II respectively. In her cross examination, she reiterated what she stated in her examination-in-chief. She also denied the fact that the boxer shorts and the underpant worn beneath the long pants could be torn without the long pants itself being torn. 19. Smt. Lalthatluangi was examined as PW-6. In her examination-in-chief, she stated that she knew the accused appellant and the prosecutrix was her sister-in-law. On 26.12.2015, while she was in her house, the victim came running to her house and she was crying. Although she asked her why she was crying, the prosecutrix did not give her any reply and she ran out of the house again without saying anything. She then ran after her and followed her upto her house. At the relevant time, she was with her husband and when they reached the house of the prosecutrix, they asked her what had happened and to which she said that she was raped by the accused appellant and Benjamin. By that time, many other persons had gathered in her house and they decided to lodge an FIR at Lawngtlai Police Station. She accompanied her to the police station and before leaving, the victim changed her pant which was wet and soiled. Her underpant and boxer shorts were torn but they told her not to change and they went to the Lawngtlai Police Station. In the Police Station, the police seized the underpant and boxer shorts and she put her signature against the Seizure Memo. Her underpant and boxer shorts were torn but they told her not to change and they went to the Lawngtlai Police Station. In the Police Station, the police seized the underpant and boxer shorts and she put her signature against the Seizure Memo. PW-6 exhibited the Seizure Memo in respect of the underpant and the boxer shorts and her signature as exhibits P-V and P-V(b) respectively. She also exhibited the boxer shorts and the underpant itself as M. Ext-I and II respectively. PW-6 in her cross examination stated that on the day of the incident the prosecutrix smelled of liquor and she could smell the same even on her pants. She denied the suggestion that the prosecutrix cried because she lost her phone and that whatever happened between herself and the accused person was consensual. She also stated that the police did not seize the long pant. 20. Sh. V.H. Chema was examined as PW-7. In his examination-in-chief, he stated that he knew the accused appellant present in the Court. On 26.12.2015, while he was on duty at Lawngtlai Police Station at around 4 pm, the prosecutrix submitted an FIR which was registered as Lawngtlai PS Case No. 12/2015 dated 26.12.2015 under Section 376-D IPC. The case was registered by the Officer-in-charge of the Police Station and thereafter, it was endorsed to him for investigation. During the investigation, he recorded the statement of the prosecutrix and he forwarded her for medical examination. He also seized the underpant and boxer shorts of the prosecutrix. He visited the place of occurrence and prepared a rough sketch map. He further deposed that he recorded the statement of Sh. Thawngkunga (PW-4), since the prosecutrix had stated that he was the first person to whom she informed about the incident while requesting him to make the phone call to her husband. He thereafter proceeded toward Rulkual village to arrest the accused appellant but found that he was not at home. He came to learn that the accused appellant and his friend Benjamin were taken to Lawngtlai Police Station by their relatives and therefore he and party returned back to the police station. At the police station, he arrested the accused appellant whereas the co-accused Benjamin having not completed 18 years of age, he forwarded him to the Principal Magistrate, Juvenile Justice Board. At the police station, he arrested the accused appellant whereas the co-accused Benjamin having not completed 18 years of age, he forwarded him to the Principal Magistrate, Juvenile Justice Board. After recording the statement of the accused appellant, on 26.12.2015, PW-7 proceeded to Rulkual village the next date where he seized one knife and a Dao, which were used to threatened the prosecutrix. While he was still at Rulkual village, he received a phone call from the officer-in-charge of the police station informing him that an FIR was received against the same accused person for commission of an offence of rape on 26.12.2015, prior to the occurrence of the present incident at Saikah-u village and therefore, the Officer-in-charge of the Police Station instructed him to visit the place of occurrence. PW-7 stated that the next village from Lawngtlai was Saikah-u, followed by Paithar village, R. Vanhne village and Rulkual village. He therefore visited the place of incident at Saikah-u village on his way back. PW-7 further stated that he forwarded both the accused persons for medical examination and he also forwarded the accused persons and the prosecutrix to the Judicial Magistrate for recording their statements. He also stated that as he was transferred to another place, he handed over the case to the Officer-in-charge of Lawngtlai Police Station. He also added that the distance between Saikah-u village and R. Vanhne village could be approximately 5-6 kms. PW-7 exhibited the Seizure Memo in respect of the underpant and the boxer shorts, his signature, the Seizure Memo in respect of the Dao and knife, his signature, the arrest memo of J. Lalruatsanga, his signature, the sketch map of the place of occurrence and his signature, as exhibits P-V, V(c), VI, VT(a), VII, VII(a), VIII, VIII(a), IX and IX(a) respectively. He also exhibited the boxer shorts, the underpant, the seized Dao and the smaller Dao/knife as M. Ext-I, II and III respectively. In his cross examination he stated that the Dao and knife were seized from the house of the accused appellant and the same were handed over to them by the father of the accused appellant. Besides this, he stated that he did not notice any injuries on the body of the prosecutrix and he did not send the Dao and knife alleged to have been used to threaten the prosecutrix for FSL examination. 21. Sh. Lalduhsaka Chinzah was examined as PW-8. Besides this, he stated that he did not notice any injuries on the body of the prosecutrix and he did not send the Dao and knife alleged to have been used to threaten the prosecutrix for FSL examination. 21. Sh. Lalduhsaka Chinzah was examined as PW-8. In his examination-in-chief, he stated that he knew the accused appellant present in the Court and that they lived in the same village. He further stated that the mother of the accused appellant and his mother were sisters. On 26.12.2015, there was a rumour that the accused appellant committed rape. The police team arrived in their village around midday on 27.12.2015 and they went to the house of the accused person and that he too went to the said house. He saw a knife on the table which appeared to be a little bigger than a kitchen knife. He also saw a small hatchet on the table. The police seized both the weapons and he on being requested put his signature as a witness in the seizure memo. PW 8 exhibited the seizure memo, his signature and they seized small Dao/knife as exhibits P-VI, VI(b) and M. Ext-IV respectively. PW-8 in his cross examination stated that he did not see the small hatchet in the material exhibit amongst the materials produced before the Court on that day. He also stated that he did not know from where the kitchen knife and the hatchet were recovered and that he only saw them on the table in the house of the accused appellant. He admitted to the fact that seizure of the knife and the hatchet was made from the house of Sh. Lalzova, who was the father of the accused appellant and not from the physical possession of the accused person. 22. Sh. K. Lalhmangaihthanga was examined as PW-9. In his examination-in-chief, he stated that he knew the accused appellant present in the Court. He stated that the maternal grandfather of the accused appellant and his own maternal grandmother were siblings. He heard about the incident of rape on the evening of 26.12.2015 and the police team came to their village on 27.12.2015. He upon hearing the arrival of the police and about the incident went to the house of the accused appellant. When he entered the house, he saw a knife and a hatchet on the table. He heard about the incident of rape on the evening of 26.12.2015 and the police team came to their village on 27.12.2015. He upon hearing the arrival of the police and about the incident went to the house of the accused appellant. When he entered the house, he saw a knife and a hatchet on the table. The police seized the weapons and he put his signature in the seizure memo as a seizure witness. He exhibited the seizure memo, his signature and the seized Dao/knife as exhibited P-IV respectively. In his cross examination, PW-9 stated that he did not see the hatchet in the Court and that he did not know from where they were recovered. In fact, when he entered the house, the knife and the hatchet were already placed on the table. 23. Sh. Lalawmpuii was examined as PW-10. In her examination-in-chief, she stated that since she was the third investigating officer, she could not identify the accused person and that she took part at the later stage when the accused/appellant was already in judicial custody. She stated that she merely put together the charge sheet since the vital investigation process was already done by the two previous investigating officers. On scrutiny of the materials, she found a prima facie case against the accused appellant under Sections 376-D/432 IPC and she submitted the charge sheet. As for the co-accused Benjamin, since he was a juvenile, he was sent to the Juvenile Justice Board. The defence declined to cross examine the PW-10. 24. After the prosecution witnesses were examined in the above manner, the accused appellant was examined under Section 313 of the CrPC. Against the questions put to him, which appeared in the evidence led by the prosecution witnesses, the accused appellant denied having committed any offence of rape against the prosecutrix, besides stating that he had no knowledge of the sequence of incident narrated by the prosecutrix. In short, the explanation of the accused appellant was basically that of denial. 25. The accused appellant in his defence examined Smt. Parkimi as DW-1. DW-1 in her examination-in-chief stated that she knew the accused appellant who stood before the Court. She stated that a vehicle driven by the accused appellant ran over her fowl and therefore, he and his friend came to apologize. She readily accepted their apology without any condition and without receiving any money. DW-1 in her examination-in-chief stated that she knew the accused appellant who stood before the Court. She stated that a vehicle driven by the accused appellant ran over her fowl and therefore, he and his friend came to apologize. She readily accepted their apology without any condition and without receiving any money. She also stated that when the accused appellant and his friend came, the prosecutrix did not accompany them. In her cross examination, DW-1 stated that she did not have any knowledge as to whether the accused appellant and his friend committed rape upon the prosecutrix on 26.12.2015. She also admitted that the prosecutrix was her friend. 26. From the evidence led by the prosecutrix, what can be seen is that on the day of the incident despite the prosecutrix asking the accused appellant to stop the vehicle when she saw her husband, the accused appellant did not stop and continued to drive on. Meanwhile, the co-accused Benjamin threatened the prosecutrix with a knife. When they reached 'Khawthlir' which is the place of incident, they forced the prosecutrix to drink liquor. In the process, the liquor spilled over the ear and nose of the prosecutrix. Thereafter, the accused appellant committed rape upon the prosecutrix and soon after, Benjamin followed suit. According to the prosecutrix, both her underpant and boxer shorts she was wearing were torn and her clothes were soiled as she was pushed out of the vehicle near the culvert at Vengthar. She immediately went to the nearest house belonging to Sh. Thawngkunga (PW-4) and asked him to call up her husband over phone. However, she was informed that her husband did not pick up the phone and therefore, she left the house and went to the house of Smt. Thatluangi (PW-6), who in fact is her sister-in-law i.e., the sister of her husband. According to the prosecutrix, from the house of the Smt. Thatluangi, she went to her house and that she was followed by other persons as well. This narrative of the prosecutrix has been corroborated by the deposition of PW-4 and PW-6 besides the version of the case investigating officer, who was examined as PW-7 amongst the prosecution witnesses. PW-4 in her examination-in-chief stated that the prosecutrix came crying to her house on 26.12.2015 and asked her to call up her husband. This narrative of the prosecutrix has been corroborated by the deposition of PW-4 and PW-6 besides the version of the case investigating officer, who was examined as PW-7 amongst the prosecution witnesses. PW-4 in her examination-in-chief stated that the prosecutrix came crying to her house on 26.12.2015 and asked her to call up her husband. Although she tried to call her husband, she could not get through the line and the prosecutrix ran out of the house. Similarly, PW-6 in her examination-in-chief stated that the prosecutrix on 26.12.2015 came crying to her house. When she asked her what had happened, she did not reply. As she ran out of the house, she followed her upto her house where she said that she was raped by the accused appellant and Benjamin. By then, many people gathered in the house of the prosecutrix and it was decided that an FIR be lodged at Lawngtlai Police Station. 27. The Apex Court in the case of State of Maharashtra Vs. Chandraprakash Kewalchand Jain reported in (1990) 1 SCC 550 held that a woman who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and therefore, her evidence need not be tested with the same amount of suspicion as that of accomplice. For better appreciation, paragraph 16 of the said judgment may be abstracted hereunder:- "16. A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge leveled by her. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge leveled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage: "It is only in the rarest of rare cases if the Court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary." With respect, the law is not correctly stated. If we may say so, it is just the reverse. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation." 28. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation." 28. In the case of State of U.P Vs. Pappu @ Yunus & Anr. reported in (2005) 3 SCC 594 , the Apex Court has held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that lead the Court to absolve the accused. The Apex Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the Court is not satisfied with the version of the prosecutrix, it can seek for evidence, direct or circumstantial by which it may get assurance of her testimony. 29. In the case of State of Punjab Vs. Gurmit Singh & Ors. reported in (1996) 2 SCC 384 , the Apex Court held that in cases involving sexual harassment, molestation etc. the Court is duty bound to deal with such cases with utmost sensitivity. Minor contradiction or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of a victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The Court may look for some assurance of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing an FIR for sexual offence may not be even properly explained, but if it is found natural, the accused cannot be given any benefit thereof. 30. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing an FIR for sexual offence may not be even properly explained, but if it is found natural, the accused cannot be given any benefit thereof. 30. In the case of Vijay @ Chinee (supra), the Apex Court in the given facts and circumstances of that case held that there was no dispute regarding the place of occurrence and the incident that occurred. The defence could not establish that it was a case of consent The FIR had been lodged most promptly. The appellant and other accused were arrested on the next day. The prosecutrix as well as the appellant and other accused were medically examined on the next day. The appellant or any other accused was not known to the prosecutrix. No reason could be there for which the prosecutrix would have enroped them falsely. Definitely, it could not be a case of consent by the prosecutrix, even if it is assumed that she was major. The discrepancies in the statement of the prosecutrix were therefore ignored. In the present case, the version or the testimony of the prosecutrix as noticed earlier is corroborated by the deposition of PW-4, PW-6 and PW-7 amongst others. The prosecutrix herself lodged the FIR on the very day of the incident without any delay. There also appears to be no reason for the prosecutrix to make such an allegation against the accused appellant and the co-accused inasmuch as there is nothing in the evidence to show that there was either an enmity or even remotely some sort of misunderstanding between them so as to prompt the prosecutrix to lodge the FIR. 31. It may further be seen that the confessional statement of the accused appellant under Section 164 of the CrPC (although not exhibited) was recorded by the Chief Judicial Magistrate, Lawngtlai on 19.01.2016. In his recorded statement, the accused appellant admitted of having sexual intercourse with the prosecutrix. However, he maintained that the same was with the consent of the prosecutrix and for that reason, he did not think that he had committed rape upon the prosecutrix. He however regretted what he had done. In his recorded statement, the accused appellant admitted of having sexual intercourse with the prosecutrix. However, he maintained that the same was with the consent of the prosecutrix and for that reason, he did not think that he had committed rape upon the prosecutrix. He however regretted what he had done. Further, from the evidence of the prosecution witnesses, more particularly, the evidence of the Doctor who examined both the prosecutrix as well as the accused person, it can be seen that although no marks of violence on the body of the prosecutrix was seen but her underpant as well as the short pants, which she was wearing were torn. Going by the confessional statement of the accused appellant that he had sexual intercourse with the prosecutrix with her consent, there was no reason for the underwear and short pants worn by the prosecutrix to be torn. Had it actually been a consensual sex, it was most unlikely for the under garments being torn i.e. both the underwear and the shorts of the prosecutrix and also for the prosecutrix to make an issue out of it by filing an FIR and making the act public, more particularly when she is the mother of three children. As already stated herein above, the absence of injury cannot be the basis to come to a conclusion that rape has not been committed on a victim. It may further be seen that according to PW-1, when he examined both the accused persons, he did not find the presence of smegma around the corona gland. He deposed that the absence of smegma can be due to recent sexual intercourse or washing of the organ. Having regard to the stand of the prosecutrix that she was raped by the two accused persons, the absence of smegma around the corona gland could very well be due to then having sexual intercourse with the prosecutrix without her consent and thereby committing rape upon her. 32. In the case of Mussauddin Ahmed (Supra), the facts of the case was that the appellant/accused was alleged to have abducted the alleged victim who was a minor girl. He took her to a hotel and raped her and thereafter the prosecutrix was roaming in the city by rickshaw/bus alongwith the appellant for a long time. 32. In the case of Mussauddin Ahmed (Supra), the facts of the case was that the appellant/accused was alleged to have abducted the alleged victim who was a minor girl. He took her to a hotel and raped her and thereafter the prosecutrix was roaming in the city by rickshaw/bus alongwith the appellant for a long time. She went to the hotel without any protest and accompanied the appellant to the room, spent the whole night with him, came out in the morning after checking out from the hotel. She travelled with him in a rickshaw from the hotel to musafir khana but did not raise any hue and cry or informed anybody that the appellant had misbehaved with her in any manner. Such conduct of the prosecutrix made the case of the prosecution unbelievable. It was under such circumstance that the Apex Court held that the prosecution failed to prove the case against the appellant beyond reasonable doubt and therefore, acquitted the appellant from the charge. It may however be noticed that the facts involved in the present case are not at all similar. The prosecutrix after the alleged incident of rape immediately submitted an FIR and her version in the FIR and her deposition during the trial were duly supported and corroborated by the evidence of the prosecution witnesses, particularly, the evidence of PW-3, PW-4, PW-6 and PW-7. We therefore find the cited case of the counsel for the appellant to be not applicable to the instant case. 33. In the case of Lalliram and Anr. (Supra), the Apex Court in the case of gang rape held that when the allegation is of rape by many persons and several times but no injuries is noticed, it certainly would be art important factor. Although, it is true that injury is not a sine quo non for deciding whether rape has been committed but it has to be decided on the factual matrix of each case. If the Court finds it difficult to accept the version of the prosecutrix on face value, it may search for evidence direct or circumstantial. In so far as the present case is concerned, the evidence on record would go to show that the accused persons threatened the prosecutrix with a knife telling her that her throat would be cut if she resisted. In so far as the present case is concerned, the evidence on record would go to show that the accused persons threatened the prosecutrix with a knife telling her that her throat would be cut if she resisted. Under such circumstance, the prosecutrix apparently out of fear may have surrendered to them. Apart from the underwear and the boxer shorts of the prosecutrix being torn, the evidence on record does not show that the accused persons applied force unlike the case in Lalliram and Anr. (Supra), wherein the prosecutrix who was said to be four months pregnant at the time of occurrence was caught hold of by her bunch of hair and dragged for a considerable distance. As may be noticed, the facts in the present case are not similar. The evidence on record does not show use of forceful violence and therefore, the absence of injury from the person of the prosecutrix cannot be the ground to disbelieve her testimony, which are also corroborated by the other prosecution witnesses. 34. In the case of Joseph S/o. Kooveli Poulo (Supra), the Apex Court held that the charge under Section 376 IPC was mainly fastened upon the appellant only on the basis of=last seen together' theory. The factum of rape of the deceased was sought to be proved from the report on examination of vaginal smear collected and said to confirm the presence of semen and spermatozoa indicating that the alleged victim had sexual intercourse before her death. Although, the accused appellant was found to be potent but no stain of blood or semen was found on his dhodi and further no injury was found on the vagina/private part of the victim. It was under such circumstance that it was held that rape was not proved. The facts and circumstance in the present case are again not similar to the case under reference. The prosecutrix was forcefully taken to a secluded place by threatening her with a knife, forced to drink liquor and was subjected to rape. It is a settled proposition in law that injury is not always a pre condition to prove the charge of rape. As already stated herein above, the prosecutrix was not subjected to brutal force which would have led to her sustaining injuries. It is a settled proposition in law that injury is not always a pre condition to prove the charge of rape. As already stated herein above, the prosecutrix was not subjected to brutal force which would have led to her sustaining injuries. Therefore, the absence of injuries by itself cannot be the ground to disbelieve her version when her narrative about the incident appears to be cogent, inspiring the Court's confidence and corroborated by the version of other prosecution witnesses. Therefore, the case under reference does not render any assistance to the case of the appellant. 35. In the case of Mohd. Iqbal and Anr. (Supra), the Apex Court held that there was no prohibition in law to convict an accused of rape on the basis of the sole testimony of the prosecutrix and that the law does not require that her statement be corroborated by the statement of other witnesses. The Apex Court went on to refer its earlier decision in the case of Narender Kumar Vs. State (NCT of Delhi) reported in (2012) 7 SCC 171 , where it was observed that even if a woman is of easy virtue or used to sexual intercourse, it cannot be a license for any person to commit rape and that conviction can be based on the sole testimony of the prosecutrix, provided it lends assurance of her testimony. The Court must act with sensitivity and appreciate the evidence in the totality of the background of the entire case and not in the isolation. Similar was the view taken by the Apex Court in the case of Vijay @ Chinee (Supra). 36. This Court during the course of hearing, upon being informed by the learned counsel for the appellant that the co-accused Sh. Benjamin Lalhriatzuala, who was also arrested in connection with the instant case did not face any trial, requisitioned information in this regard from the Principal Magistrate, Juvenile Justice Board, Lunglei District, vide Order dated 4.8.2020. In response to the said order, the Principal Magistrate, Juvenile Justice Board, vide communication dated 13.8.2020 informed this Court through the Registry that no case was initiated against Benjamin Lalhriatzuala before the Juvenile Justice Board, Lunglei. As may be seen, the present appellant is charged and convicted under Sections 376-D and 342 of the IPC. 37. In response to the said order, the Principal Magistrate, Juvenile Justice Board, vide communication dated 13.8.2020 informed this Court through the Registry that no case was initiated against Benjamin Lalhriatzuala before the Juvenile Justice Board, Lunglei. As may be seen, the present appellant is charged and convicted under Sections 376-D and 342 of the IPC. 37. Section 376-D IPC provides as follows:- "376-D. Gang rape.-Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person's natural life, and with fine." 38. From the above abstract, it may be seen that the basic ingredient to constitute gang rape is the act of raping a woman by one or more persons constituting a group or acting in furtherance of a common intention. If the same is proved, each of the persons involved would be determined to have committed the offence and punished accordingly. In the present case, the fact that the co accused Sh. Benjamin Lalhriatzuala having not been proceeded with by the Juvenile Justice Board, the provision of Section 376-D in our considered view will not be attracted since the basic ingredient of there being a common intention cannot be proved. The Apex Court in Pardeep Kumar (Supra) held that it is a settled law that the common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstance of the case and conduct of the parties. Direct proof of common intention is seldom available and therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the circumstantial evidence. Similar view was taken in the case of Om Prakash (Supra) by the Apex Court where it was held that there must be meeting of minds to commit rape, which may be determined from conduct of offenders which is revealed during the course of action. Similar view was taken in the case of Om Prakash (Supra) by the Apex Court where it was held that there must be meeting of minds to commit rape, which may be determined from conduct of offenders which is revealed during the course of action. Mere presence of other co-accused person cannot be enough to establish that he had shared a common intention with the accused who was said to have committed rape upon the victim. 39. In the above backdrop, we are of the considered view that the appellant could not have been convicted under Section 376-D of the IPC. This however does not mean that the appellant can be absolved from the charge of rape. The evidence on record clearly goes to show that while the appellant committed rape upon the prosecutrix, there is no proof that the co-accused, i.e. juvenile Benjamin had committed rape upon the victim, as no criminal proceedings have been initiated against Benjamin. Therefore, in the absence of any proceedings against the co-accused, the appellant must be held guilty of having committed rape simpliciter. Accordingly, we altered the charge against the appellant from Section 376-D IPC to 376 (1) IPC and modify the conviction of the appellant under Section 376-D to a conviction under Section 376(1) and sentence him to a Rigorous Imprisonment of 10 years with a fine of Rs. 1000/- and in default thereof, he shall undergo simple imprisonment of 1 month. In so far as his conviction and sentence under Section 342 IPC is concerned, we are not inclined to interfere with the same and the same is upheld. We however make it clear that both the sentences under Section 376 (1) and Section 342 IPC shall run concurrently. 40. The above being said, we would like to observe that the Lawngtlai Police Station had written a letter dated 27.12.2015 to the Principal Magistrate, Juvenile Court, Lawngtlai District with reference No. LTI-PS GDE No. 62/15 dt. 26.12.2015, which states as follows:- "Sir, I am forwarding here with the below noted person who is a Juvenile in conflict with law and was apprehended on Dt. 26.12.15 in connection with the above ref GDE. He was examined and interrogated thoroughly and he admitted his guilt before the Police. It is, therefore, prayed that the below noted juvenile in conflict with law may kindly be kept into observation home. 26.12.15 in connection with the above ref GDE. He was examined and interrogated thoroughly and he admitted his guilt before the Police. It is, therefore, prayed that the below noted juvenile in conflict with law may kindly be kept into observation home. Name of juvenile in conflict with law forwarded: 1. Benjamin Lalhriatzuala (17) R/o Rulkual." 41. The above letter clearly goes to show that there appeared to be a prima facie case against the co-accused Sh. Benjamin Lalhriatzuala, S/o. Thawmmawia, R/o Rulkual, Lawngtlai District. The letter issued by the Legal-Cum-Probation Officer, District Child Protection Unit, Lunglei Mizoram, which has been submitted by the appellant's counsel and the letter dated 13.08.2020 issued by the Principal Magistrate, Juvenile Justice Board, Lunglei appears to show that no criminal proceeding had been initiated against Sh. Benjamin Lalhriatzuala in the criminal Courts. As there is an allegation of gang rape made out against the co-accused Sh. Benjamin Lalhriatzuala, we are of the view that the State respondents have to take a decision on the basis of the investigation undertaken by the I.O. as to whether charge sheet should be filed against Sh. Benjamin Lalhriatzuala. If required, the State respondents can also collect further evidence by causing further investigation. It may however be noted that since we have altered the charge from Section 376-D IPC to 376 (1) of the same Code, the charge against Sh. Benjamin Lalhriatzuala will have to be restricted to Section 376(1) IPC. 42. In view of above, we direct the State of Mizoram through the Secretary to the Govt. of Mizoram, Home Department and the Director General of Police, Mizoram to cause an enquiry as to why no criminal proceedings had been initiated against the co-accused Sh. Benjamin Lalhriatzuala before the competent Criminal Court. If the State respondents come to a finding that there is a prima facie case of rape made out against Sh. Benjamin Lalhriatzuala, the State respondents shall initiate criminal proceedings against Sh. Benjamin Lalhriatzuala, as per law. 43. With the above observations and directions, this appeal stands disposed of. The LCR being only a photocopy of the original, the same need not be sent back. 44. Registry shall send a copy of this order to the Secretary to the Govt. of Mizoram, Home Department and the Director General of Police, Mizoram.