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2021 DIGILAW 662 (GAU)

Abdul Hoque v. State of Mizoram

2021-11-08

NELSON SAILO

body2021
JUDGMENT : Nelson Sailo, J. 1. This appeal is filed by the appellant from Jail against the Judgment & Order dated 07.05.2018 passed by the Court of Addl. Sessions Judge, Siaha in S.R. No. 6/2018 convicting him under Section 448/376(1) r/w 511 of the Indian Penal Code (JJPC) and under Section 3 of the Bengal Eastern Frontier Regulation, 1873 (BEFR) and also against the Order of Sentence dated 08.05.2018 sentencing him to simple imprisonment for 3 (three) months under Section 448 IPC with fine of Rs. 1,000/-, with a default clause rigorous imprisonment for a period of 8 (eight) years with a fine of Rs. 10,000/- under Section 376(1) r/w 511 IPC with a default clause and simple imprisonment for 6 (six) days and fine of Rs. 500 under Section 3 of BEFR with a default clause. All the sentences have been directed to run concurrently. 2. The case of the prosecution is that on 11.09.2017 at around 2:00 AM, a written FIR was lodged by the prosecutrix stating that at around 1:00 AM, the appellant entered her house from the broken skirting of her rented house and he caressed her body and touched her breast. The officer-in-charge of Siaha Police Station therefore registered Siaha P.S Case No. 99/2017 dated 11.09.2017 under Section 451/354 IPC r/w Section 3 of the BEFR and endorsed the case to the appointed Investigating Officer (I.O) for investigation. During the investigation, the I.O visited the place of occurrence and she drew a rough sketch map of the place, examined witnesses and recorded their statements including the complainant. Upon concluding her investigation, the I.O found a prima facie case well established against the accused person under Section 448/376(1)/511 IPC r/w. Section 3 of BEFR and submitted the charge-sheet before the Court. After the charge-sheet was received by the Court, charge was framed against the accused under Section 448/376(1) r/w Section IPC and under Section 3 of the BEFR on 21.02.2018 and to which, the accused pleaded not guilty and claimed for trial. Accordingly, trial was conducted against the accused and in the process, the prosecution examined as many as 4 (four) prosecution witnesses. Upon conclusion of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. Thereafter, the accused examined 1 (one) defence witness. Accordingly, trial was conducted against the accused and in the process, the prosecution examined as many as 4 (four) prosecution witnesses. Upon conclusion of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. Thereafter, the accused examined 1 (one) defence witness. After hearing the parties, the learned Trial Court passed the impugned Judgment & Order convicting the appellant and sentencing him in the manner already indicated herein above. Being highly aggrieved with the same, he has filed the instant appeal from Jail. 3. I have heard Mr. Vanlalnghaka, learned Amicus Curiae for the accused appellant and Mr. C. Zoramchhana learned Public Prosecutor for the State-respondent. The learned Amicus Curiae submits that from the deposition of the prosecution witnesses, more particularly the prosecutrix herself, there is no evidence of commission of rape upon the prosecutrix. In fact, there was neither an attempt nor an intention on the part of the appellant to commit rape upon the prosecutrix. He submits that had there really been an intention, the appellant would not have stopped when the prosecutrix awoke from her sleep. Referring to the evidence of the sole defence witness, the learned Amicus Curiae submits that the prosecutrix used to visit the appellant in his workplace to ask him to buy liquor for her. Therefore, it is clear that there was an unnatural relationship between the appellant and the prosecutrix. 4. The learned Amicus Curiae further submits that although the learned Trial Court was of the view that Section 375(c) IPC was attracted in view of the appellant having allegedly caressed the body of the prosecutrix as well as touch her breast, but the fact remains that there was no penetration of the penis of the appellant into the vagina of the prosecutrix or an attempt to do so in order to attract the said provision. Therefore, the conviction of the appellant under Section 376(1) r/w Section 511 IPC is misconceived and cannot be sustained. As such, the appellant should be acquitted of the charge and set at liberty. 5. Mr. C. Zoramchhana, learned Public Prosecutor, on the other hand, submits that from the evidence led by the prosecution witnesses, the entering of the appellant into the house of the prosecutrix at 1:00 AM in the morning on 11.09.2018 and that too, only with his underwear is undisputed. 5. Mr. C. Zoramchhana, learned Public Prosecutor, on the other hand, submits that from the evidence led by the prosecution witnesses, the entering of the appellant into the house of the prosecutrix at 1:00 AM in the morning on 11.09.2018 and that too, only with his underwear is undisputed. It is also undisputed that while the prosecutrix was asleep with her children, the appellant touched and caressed her body and breast. The evidence of the prosecution witnesses has neither been shaken nor falsified during the cross-examination. In fact, the sole defence witness in his cross-examination clearly stated that he did not have any knowledge about the alleged incident of the appellant trying to commit rape upon the prosecutrix. The learned Public Prosecutor also submits that the prosecutrix has no reason to make false accusation of attempt to rape against the appellant and that there is also no evidence to show that there was enmity between them or there were other issues which may have led her into making such accusation. He, therefore, submits that the evidence led by the prosecution witness, more particularly the evidence of the prosecutrix is trustworthy, cogent and reliable. Therefore, the learned Trial Court is justified in convicting and sentencing the appellant through the impugned Judgment & Order. In support of his submission, the learned Public Prosecutor has relied upon the following authorities:- (1) Pandharinath Vs. State of Maharashtra, (2009) 14 SCC 537 . (2) State of Uttar Pradesh Vs. Chhotey Lal, (2011) 2 SCC 550 . 6. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record including the Lower Court Record (LCR). In order to find out as to whether the learned Trial Court was justified in convicting the appellant under the relevant sections of law and thereafter, sentencing him into prison in the manner stated herein before, let us examine the evidence led during trial. 7. PW-1 is the prosecutrix and in her examination-in-chief, she stated that she knew the accused person who appeared in the Court. On the night of 10.09.2017, she was sleeping in her bed with her children and as for her husband, he was imprisoned in jail. At around 1:00 AM in the morning she felt somebody rubbed her belly and her breast. On the night of 10.09.2017, she was sleeping in her bed with her children and as for her husband, he was imprisoned in jail. At around 1:00 AM in the morning she felt somebody rubbed her belly and her breast. When she woke up, she realized that her husband was in jail and from the smell she could make out that it was the appellant who was also living in the same building on rent and whose house/room was separated from her house only by a partition wall. She then called him by his name and to which, he replied. She then cried out and the neighbors came and thereafter, they approached the Police Station. The prosecutrix also stated that she ascertained that the accused entered the house by breaking open the skirting of the wall. She could identify the appellant as he replied back when she called out his name and that she could make out that it was him from the light which came from outside. Her landlord telephoned the police and they arrived after a short while and arrested the appellant. She also stated that the appellant entered her rented house only with his underwear and without any footwear. She also stated that had she not awakened and strongly resisted him, the appellant would have raped her. She stated that according to her, the appellant came to her house in order to rape her. In her cross-examination, the prosecutrix reiterated what she stated in her examination-in-chief. 8. PW-2 Smt. Zaimawii, in her examination-in-chief, stated that on the night of 10.09.2017 at around 1:00 AM, the prosecutrix was crying as she telephoned her and so she rushed down to her house. She first visited the house of the appellant and found him to be wearing only his underwear while he was carrying his other apparel. She then went to the house of the prosecutrix who told her that the appellant tried to rape her by rubbing her breast and belly. She then telephoned the police and the police immediately arrived thereafter. In her cross-examination, she stated that she did not witness the commission of the alleged offence and that she arrived on the scene after the incident took place. 9. PW-3 Smt. K. Biakzeii, in her examination-in-chief, stated that the prosecutrix is her elder sister. She then telephoned the police and the police immediately arrived thereafter. In her cross-examination, she stated that she did not witness the commission of the alleged offence and that she arrived on the scene after the incident took place. 9. PW-3 Smt. K. Biakzeii, in her examination-in-chief, stated that the prosecutrix is her elder sister. In the early morning of 10.09.2017 at around 1:00 AM, the prosecutrix came to their house and she knocked the door, She disclosed to them about the incident. She then immediately proceeded to the place of occurrence and went to the house of the appellant and found him to be wearing only his underwear. Her husband also joined her and information was thereafter given to the police immediately. In her cross-examination, PW-3 stated that the prosecutrix and the family of the appellant were acquainted with each other since they are close neighbors. She also admitted that she is not an eye witness. 10. PW-4 Smt. C. Zokhumi, the case I.O., in her examination-in-chief stated that in the early morning of 10.09.2017, the prosecutrix approached the Police station and a FIR was registered. She was endorsed to investigate the case and during her investigation, the accused was arrested, the statement of the prosecutrix and other witnesses were recorded and that the appellant admitted his guilt for attempting to commit rape upon her. She also stated that the appellant did not possess a valid Inner Line Permit (ILP). Having found a prima facie case, she submitted the charge sheet against the appellant. She exhibited the charge-sheet, her signature and the other appended documents to the charge-sheet. 11. What transpires from the above evidence of the prosecution is that the appellant indisputably entered the house of the prosecutrix in the early hours of 11.09.2017 and upon entering he caressed/touched the body and breast of the prosecutrix while she was lying asleep in bed along with her children. Sensing what was happening, she awoke only to find the appellant in the room. When she called out his name, he replied back. The prosecutrix then cried out and then her neighbors; came. The evidence of the prosecution otherwise does not reveal who the neighbors were, who came on hearing her cry out. Otherwise, it was the land-lady (PW-2) who came to the house of the prosecutrix after she was telephoned by the prosecutrix. When she called out his name, he replied back. The prosecutrix then cried out and then her neighbors; came. The evidence of the prosecution otherwise does not reveal who the neighbors were, who came on hearing her cry out. Otherwise, it was the land-lady (PW-2) who came to the house of the prosecutrix after she was telephoned by the prosecutrix. Both the PW-2 and PW-3 upon coming to the building, where the appellant and the prosecutrix resided as neighbors, found the appellant to be wearing only his underwear and nothing else. This in fact is also the version of the prosecutrix in her examination-in-chief where she stated that the appellant entered her house only with his underwear. Therefore, the version of the prosecutrix in this regard is clearly corroborated by the evidence of PW-2 & PW-3. 12. The appellant in reply to the question put to him in his examination under Section 313 Cr.P.C. stated that it was raining the whole day and there was no power supply that night. According to him, the prosecutrix used to ask him for some liquor sometimes. Even on that night they both drank liquor in their rented house. Although he entered into the house of the prosecutrix, he did not attempt to commit an offence but went there only to collect curry. He entered into the house through the main door by following the prosecutrix. He also admitted to rubbing her breast and not her belly in his rented house. He said that he did not make any attempt to commit rape upon her. On being asked as to whether he would like to examine defence witness, he stated that he has a defence witness to be examined. The appellant accordingly examined Mr. Laldinkima as a sole defence witness. In his examination-in-chief he stated that before the alleged incident take place, he engaged the appellant to construct his house. He noticed that the prosecutrix often came and approached the appellant for purchasing liquor for her. He came to know about the alleged incident the next day. As requested by the wife of the appellant he stood as a defence witness. In his cross-examination, he stated that he did not have any knowledge about the incident which took place on the night of 11.09.2018. He came to know about the alleged incident the next day. As requested by the wife of the appellant he stood as a defence witness. In his cross-examination, he stated that he did not have any knowledge about the incident which took place on the night of 11.09.2018. Be it stated herein that although the incident was said to have taken place on 11.09.2018, the same only appears to be a typographical mistake since the deposition of the defence witness was recorded on 01.05.2018. 13. As may be noticed, the evidence on record goes to show that the appellant entered the house of the prosecutrix on early hours of 11.09.2017 at about 1:00 AM only with his underwear and he touched/caressed the belly/body and breast of the prosecutrix, which can only be understood as intention to have an ulterior motive. When the prosecutrix awoke and called out the name of the appellant, he replied back. Therefore, there is no doubt of the fact that it was the appellant who was inside the house of the prosecutrix in the odd hour. The appellant fortunately did not apply force but that by itself, in the opinion of this Court cannot be understood and accepted as there being no intention on his part to have sexual intercourse or commit rape upon the prosecutrix. Even if one presumes that the prosecutrix was a consenting party, but then she would not have made the same an issue and reported the matter to police. 14. In the case of Pandharinath (Supra) in the given facts of that case, the Supreme Court held that there was no suggestion in the cross-examination on the part of the accused that he did not remove the clothes of the prosecutrix. Therefore, considering the facts and circumstances, it was clearly a case of an attempt to commit rape. Coming to the present case as well, it may be seen that the appellant has not denied touching the body and breast of the prosecutrix on 11.09.2017 at around 1 AM by entering her house. Therefore, the ratio laid down in Pandharinath (Supra) is also found to be applicable. Coming to the present case as well, it may be seen that the appellant has not denied touching the body and breast of the prosecutrix on 11.09.2017 at around 1 AM by entering her house. Therefore, the ratio laid down in Pandharinath (Supra) is also found to be applicable. In so far as the other authority relied upon by the learned Public Prosecutor i.e., State of Uttar Pradesh vs. Chhotey Lal (Supra) is concerned, the same is found to be inapplicable to the facts of the present case and therefore, it will not be discussed. 15. Further, the fact of the appellant giving liquor to the prosecutrix or that they both had liquor together does not give him liberty to touch the prosecutrix inappropriately and against her will or consent. The 1st and 2nd proviso to Section 375 IPC provides that rape is said to be committed as provided under Sub-section (a) to (d) of the same Section if it is against the will and consent of the victim concerned. Therefore, what the appellant had done to the prosecutrix was only against her will and against her consent and in fact, while she was sleeping with her children inside her rented house. It is only clear that the appellant had ulterior motive in entering the house of the prosecutrix through the broken skirting of her rented house with only his underwear and nothing else at about 1:00 AM on 11.09.2017 and touching the body and breast of the prosecutrix who was sleeping with her children. 16. Thus, under the facts and circumstance and upon due consideration, I am of the considered view that the learned Trial Court is justified in convicting the appellant under the aforementioned sections of law. However, having regard to the evidence, particularly the manner in which the appellant tried to commit the offence of rape, I am of the considered view that even if he was successful, the maximum punishment of imprisonment for life may have not been attracted. Therefore, ends of justice will be met if the sentence of 8 (eight) years imposed under Section 376(1) r/w 511 IPC is modified to 5 (five) years rigorous imprisonment. It is accordingly ordered. Apart from this modification, the remaining part of the impugned Judgment & Order and the order of sentence shall remain unchanged. 17. With the above observation and modification, the appeal stands disposed of. It is accordingly ordered. Apart from this modification, the remaining part of the impugned Judgment & Order and the order of sentence shall remain unchanged. 17. With the above observation and modification, the appeal stands disposed of. As a token of appreciation for the assistance rendered by Mr. Vanlalnghakathe learned Amicus Curiae, he shall be paid a sum of Rs. 7,500/- (Rupees seven thousand and five hundred) only by the Mizoram State Legal Services Authority on receipt of a copy of this order.