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2022 DIGILAW 370 (GAU)

Lalbiakmuana S/o Hranglawta v. State of Mizoram

2022-04-06

MARLI VANKUNG

body2022
JUDGMENT : Heard Mr. T. Lalnunsiama, learned Amicus Curiae for the appellant and Mr. C. Zoramchhana, learned Public Prosecutor for the State respondent. 2. This is an appeal against the Judgment & Order dated 14.03.2018 passed by the learned District & Sessions Judge, Lunglei Judicial District, Lunglei, who on conviction of the appellant under Section 376 (1) IPC, sentenced him to undergo Rigorous Imprisonment for 7 years with a fine of Rs. 5000/-, i.d. Simple Imprisonment for 1 (one) month. 3. The brief facts of the case is that an FIR was submitted on 17.07.2017 by the prosecutrix Zonunpari to the effect that on 16.07.2017 at around midnight Lalbiakmuana, S/o Hranglawta of Zotuithiang came to their house and tried sleeping next to her. She then moved and slept on the couch however, he came and slept next to her by placing another couch next to her. Thereafter, he approached her and throttled her and had sexual intercourse with her against her will. The case was registered under Section 376 (1) IPC, Lunglei PS Case No. 103/2017 dated 17.07.2017. On investigation of the case, the place of occurrence was visited and sketch map of the P.O was drawn. The victim/complainant was examined and her statement recorded. She was thereafter sent for medical examination to the Civil Hospital, Lunglei by the Medical Officer, Dr. Zonunmawii, on receipt of the medical examination report, the victim was forwarded to the Court of CJM, Lunglei for recording her judicial statement. The accused Lalbiakmuana, S/o Hranglawta of Zotuithiang was arrested and he confessed his guilt before the Police. Other witnesses were also examined and their statements recorded. Thereafter, a prima facie under Section 376 (1) IPC was found against the accused and charge sheet was accordingly submitted. 4. Charge under Section 376 (1) IPC was framed against the accused on 25.08.2017, to which the accused pleaded not guilty and asked for trial. During trial, the prosecution examined 8 (eight) prosecution witnesses. Thereafter, the accused was examined under Section 313 Cr.P.C., wherein the accused had denied the evidence adduced against him and 3 (three) defence witnesses were examined. The learned Trial Court on consideration of the evidence adduced by the prosecutrix and the prosecution witnesses found the accused guilty under Section 376 (1) IPC and on conviction of the accused sentenced him to undergo Rigorous Imprisonment for 7 years with a fine of Rs. The learned Trial Court on consideration of the evidence adduced by the prosecutrix and the prosecution witnesses found the accused guilty under Section 376 (1) IPC and on conviction of the accused sentenced him to undergo Rigorous Imprisonment for 7 years with a fine of Rs. 5000/-, i.d. Simple Imprisonment for 1 (one) month. Aggrieved by this Order dated 14.03.2018, the appellant has filed this appeal from the District Jail, Aizawl. 5. Mr. T. Lalnunsiama, learned Amicus Curiae appearing for the appellant submits that the Judgment & Order dated 14.03.2018 passed by the learned District & Sessions Judge, Lunglei Judicial District, Lunglei is liable to be set aside, since the offence of rape has not been proved by the prosecution in this case. The prosecutrix and the appellant are known to each other and the evidence shows that the appellant often visits the prosecutrix and that if any sexual intercourse took place, it will be on the consent of the said prosecutrix. There is no corroborative evidence to show that the offence of rape was committed on the prosecutrix. The medical examination was conducted on 17.07.2017 when the incident is supposedly to have taken place on 16.07.2017, which means medical examination was done within a few hours of the alleged incident. However, no marks of violence was found on the body of the prosecutrix. There were no semens stains found. That from the evidence it is seen that the prosecutrix was widowed from the year 2010 and if she had been raped on 16.07.2017, there should have been signs of forceful intercourse on her body. That the defence witness Nos. 1, 2 & 3 have all stated that the accused has no previous case or conviction against him and that he is having good moral character and has never been previously known to misbehave against the opposite sex. It is unlikely that he should behave in such an unworthy manner towards the said prosecutrix or the opposite sex. That this false allegation of rape can cause equal distress, humiliation and damage to the accused/appellant. The learned counsel has relied on the judgments of the Apex Court in Raju & Ors. Vs. State of Madhya Pradesh, reported in (2008) 15 SCC 133 (Para 11) and Santosh Prasad @ Santosh Kumar Vs. State of Bihar in Criminal Appeal No. 264 of 2020 (Para 5.3). 6. Mr. The learned counsel has relied on the judgments of the Apex Court in Raju & Ors. Vs. State of Madhya Pradesh, reported in (2008) 15 SCC 133 (Para 11) and Santosh Prasad @ Santosh Kumar Vs. State of Bihar in Criminal Appeal No. 264 of 2020 (Para 5.3). 6. Mr. C. Zoramchhana, learned Public Prosecutor for the State submits that on the perusal of the depositions of the prosecution witnesses, it is clearly proved that the accused/appellant had committed the offence of rape against the prosecutrix. The victim/prosecutrix in her deposition has mentioned that she was throttled by the accused and thereafter, committed rape upon her, that the incident had occurred around 1:00 AM, when the accused/appellant had come over to her house and slept on the long chair next to her. This deposition of the victim/prosecutrix is corroborated by the statement of PW-2, who stated that she was woken by the prosecutrix at around 1:20 AM that there was fear in her eyes when she said that the accused/appellant had committed rape upon her. The statement of PW-2 is further corroborated by the deposition of PW-3, who stated that the prosecutrix had come to their house at around 1:20 AM. There was fear in her eyes and that he had personally checked her neck and so that there were marks of violence on her neck. This evidence was not rebutted in the cross examination. On examination of the accused under 313 Cr.P.C. when the question No. 6 states that:- “It is in evidence that by use of force upon the prosecutrix you committed rape upon her. What have you got to say? Ans :- It is not correct. I did not use any criminal force on her. There were close neighbours who could have heard if I use criminal force. I do not know if I indulge in sexual intercourse with her because on that day I had taken cough syrup and also consumed liquor.” Thus the accused/appellant has not denied that he had sexual intercourse with the prosecutrix. 7. That the victim/prosecutrix had washed herself before she was examined by the medical doctor and therefore, semens stains etc was not found on her. 7. That the victim/prosecutrix had washed herself before she was examined by the medical doctor and therefore, semens stains etc was not found on her. However, the medical report also states that the prosecutrix complaint of neck pain and that “The Medical Doctor, Zonunmawii Pachuau has stated that “Depending on the pressure applied and depending on the health of a person marks/bruise can be left with or it could have faded within such 12 hours but she was still feeling pain/tenderness upon touching her neck.” 8. That from the evidence of the prosecution witness, she fully corroborate the deposition of the prosecutrix/victim. It is clearly proved that the accused has committed the offence of rape under Section 376 (1) IPC. The learned counsel in support of his submission has cited the Apex Court judgments in the case of; State of Himachal Pradesh Vs. Sanjay Kumar, reported in (2017) 2 SCC 51 (Para 31), State of Uttar Pradesh Vs. Chhotey Lal, reported in (2011) 2 SCC 550 , and Ganesan Vs. State represented by its Inspector of Police, reported in (2020) 10 SCC 573 . 9. Having considered the submissions made by both the parties, the evidence recorded by the Trial Court is herein scrutinized. 10. PW No. 1/Zonunpari (victim) identified the accused and stated that the accused is the son of her husband’s sister. Her husband died in the year 2010 and she has 3 children with him and they are between 15 & 19 years. Due to economic hardship all her 3 children are working to earn their living as daily wagers in Aizawl and Lunglei. She is staying alone. On the intervening night of 16 & 17 July, 2017 she visited Sangtei who is the daughter of her husband’s elder brother. She returned home at 10.00 pm. She went to bed and a little later she heard the knocking on the door and the accused caller her out. She could recognize the accused from his voice. But she did not respond to him because it was late in the night and she thought that he must be drunk. The knocking stopped for a while and she presumed that he must have left. However, sometime later the accused came back and started banging and pulling the door so she got up and opened the door. But she did not respond to him because it was late in the night and she thought that he must be drunk. The knocking stopped for a while and she presumed that he must have left. However, sometime later the accused came back and started banging and pulling the door so she got up and opened the door. She asked him what he wanted and he told her to give him a cup/glass to drink liquor. So, she gave a glass to him. He told her that he will consume liquor outside her house and since Mama her son was not at home he will bolt the door from outside after he finishes the drinks outside. He told her to go back to sleep but she sat on the chair while he drank liquor outside her house. He came inside and told her that he was very drunk and would not be able to go home and that he will spend the night in her house. He also kept a bottle of liquor on the table and liquor was more than half of the bottle. So she gave him a quilt and he lied down on the long chair. There after she went to her bedroom and must have slept for a short while when she felt someone nearby. When she opened her eyes she saw the accused sitting on her bed she immediately started to shout and the accused said he was feeling scared and that was why he came to her bedroom. He told her that he was woken up 3 times by the feeling of someone trying to wake him up and so being scared he came to her bedroom so he slipped himself beside her on her bed, at that moment she got up and went to sleep on the long chair in the other room. Not long thereafter the accused came to the room where he lied down and asked why she keeps moving away from him when he was scared, he told her that he will pull another chair close by and that he will lie down. He told her that he was very scared and that she should not leave even if he falls asleep. He is like her own son since he is the son of her husband’s sister. He told her that he was very scared and that she should not leave even if he falls asleep. He is like her own son since he is the son of her husband’s sister. So, without any suspicion she let him sleep on the chair close by where she was sleeping. Both of them were having separate quilt. However, sometime later the accused suddenly got up and throttled her and he bit her upper lips so that she could not shout at all (ka nghawng a rek a ka hmui chunglam a seh). Then he threatened her of being strangulated if she tries to shout, she was very scared and since they do not have close neighbours she knew very well that she would not be heard by any one. As she did not want to die she remained quiet. After he threatened her of strangulation he pulled down her pant/pyjama and under pant and then started to rape her, he also said that on that night he will rape her three times and that in the next week one more time and that there was no need for her to marry again. Thereafter, the accused got up and sat on the long chair while she went to the bathroom. Thereafter, she started to light the fire in the fire place and as a means of escape she told him that the logs could not catch fire and that she needed to get dry bamboo (mau thing) from below to start the fire. So she went down below her house where they usually kept dry bamboos and to make sure that the accused is assured that she actually went down she took the dry bamboos and kept them in front of the door in which process in which some noise instead of entering her house she went to the house of Lalsangzuali and informed the matter to them. She told her that she wanted to submit complaint to the police. Several attempts were made to call the siblings of her deceased husband but none of them pick up the phone since it was already passed midnight. However, she could contact Lalfamkima, YMA President who is the son of her husband’s brother and told the matter to him. He came with the father and two elder brothers of the accused. Several attempts were made to call the siblings of her deceased husband but none of them pick up the phone since it was already passed midnight. However, she could contact Lalfamkima, YMA President who is the son of her husband’s brother and told the matter to him. He came with the father and two elder brothers of the accused. Some of them also went to her house but by then the accused was not there. On the next day she went to Lunglei in a Maxi Cab and submitted the FIR in Lunglei P/S. After she lodged the FIR she was examined at Civil Hospital, Lunglei. After the incident she went to the bathroom and washed herself. When she came to Lunglei to lodge FIR she has changed her clothes except her under pant. The Judicial Magistrate also recorded her statement. 11. During the cross examination nothing was made out to discredit her testimony which I find is corroborated by the evidence adduced by PW 2/ Lalsangzuali, who has deposed that around midnight the prosecutrix came to her house and started to shake the door. When she woke up to open the door she looked at the watch and it was 1.20 am. The prosecutrix looked frightened and could not speak immediately. After she calmed down a bit she told them that the accused raped her and that she wanted to lodge FIR. When she asked her whether she fought back she told her that she was throttled and threatened by the accused. So they made a phone call to her father Biakkunga then they tried to call Chuanmawia brother of the accused but he did not pick up the call, they also made a phone call to Famkima, YMA President who is also the son of her other uncle. Famkima came to her house and soon followed by the father and 2 elder brothers of the accused. By the time Famkima and the family of the accused arrived the prosecutrix explained the incident to her. She also told her that she could come to her house and escape on the pretext of collecting dry bamboos from below her house in order to start the fire in her house. When the others arrived some of them went to the house of the prosecutrix but the accused was not there. 12. She also told her that she could come to her house and escape on the pretext of collecting dry bamboos from below her house in order to start the fire in her house. When the others arrived some of them went to the house of the prosecutrix but the accused was not there. 12. The testimony of the prosecutrix is also corroborated with the deposition of PW3/ Lalchhantluanga who has deposed that On the night of 16.07.2017, the prosecutrix visited them and she stayed on till about 10.00 pm. After she went home she came back passed midnight at 1.20 am and banged the door. She called out his wife and told them to open the door for her. When they opened the door she entered the house and appeared to be frightened. From her eyes he could make out that she was in fear. When his wife asked her what was the matter, she told them that she will tell them after she calm down. She went to the bathroom to wash her feet and when she came out she sat down and told them that she was raped by the accused and that she wanted to lodge FIR. Before going to the house of the prosecutrix to check if the accused was there he personally checked and thereafter he along with Famkima, Ramdina and Chhuanmawia went to the house of the prosecutrix but the accused was not there and no one was in the house. 13. The depositions of these two witness with regards to the narration of the incident by the prosecutrix, the time when the proseutrix went their house i.e. around 1:30 am, both the prosecution witnesses stated that they saw fear in her eyes and Pw-3 noticed saw marks of throttling on the neck of the prosecutrix, all these instances corroborate the testimony of the prosecutrix. Further during the cross examination of PW2 and PW3 nothing was made out to doubt their truthfulness. The testimony of the prosecutrix is also consistent with her statement recorded under section 164 Cr.P.C by the JMFC/R. Malsawmdawngliana, Lunglei exhibited as Ext-PIII to P-III(a). 14. PW No. 4/ Lalrintluanga: is the VCP of Zotuitlang and he has also deposed that he came to know of the incident on 17.07.2017 morning at around 7:30 am. 15. PW No.5/Dr. The testimony of the prosecutrix is also consistent with her statement recorded under section 164 Cr.P.C by the JMFC/R. Malsawmdawngliana, Lunglei exhibited as Ext-PIII to P-III(a). 14. PW No. 4/ Lalrintluanga: is the VCP of Zotuitlang and he has also deposed that he came to know of the incident on 17.07.2017 morning at around 7:30 am. 15. PW No.5/Dr. Zonunmawii : is the medical doctor who examined the prosecutrix on 17.07.2017, she received the requisition for medical examination of Zonunpari regarding commission of rape upon her on the previous night. On 17.07.2017 at 11:15 am she conducted the medical examination of the prosecutrix where she stated that after the incident and before she was brought for medical examination she has changed clothes and washed herself. On examination the doctor did not find external marks of injury but she complained of pain in the next upon touch. On genital examination of her genital organs they were found fully developed. Her hymen was absent and as per her statement she was married, she had pregnancies and that her husband died in the year 2010. The medical examination was conducted about 12 hrs after the incident. Depending on the pressure applied and depending on the health of a person marks/bruise can be left with or it could have faded within such 12 hrs but she was still feeling pain/tenderness upon touching her neck. 16. I find that the testimony of the prosecutrix is not discredited by the above medical examination since the prosecutrix has stated that she had washed herself and changed her clothes. 17. The deposition of PW No.6/Lalsangzuala Chhangte is with regards to finding of the accused at Haulawng village since the accused was suspected to flee from the place where he had committed the offence. The accused had remained in his house till the police arrived. The police apprehended him and took him to his village. 18. PW No.8/Romuana Ralte: is the case Investigating Officer who completed all the necessary steps and from the materials collected during investigation he found prima facie case u/s 376(1) IPC against the accused and submitted charge sheet. He exhibited the charge sheet which included the FIR, Medical examination report, Judicial statement of the prosecutrix, form of arrest of the accused and Crime detail forms. During his cross examination no lacuna or fault was made out on the investigation done by him. 19. He exhibited the charge sheet which included the FIR, Medical examination report, Judicial statement of the prosecutrix, form of arrest of the accused and Crime detail forms. During his cross examination no lacuna or fault was made out on the investigation done by him. 19. During the examination of the accused/appellant under section 313 Cr.P.C, the appellant has not denied that he was in the house of the prosecutrix on the intervening night between 16thto 17th July 2017 but stated that he was invited by the proscutrix. When the question was put to him regarding the use of force upon the prosecutrix and then committed rape upon the proseutrix he had replied in the following manner:- “It is not correct. I did not use any criminal force on her. There were close neighbours who could have heard if I use criminal force. I do not know if I indulge in sexual intercourse with her because on that day I had taken cough syrup and also consumed liquor.” 20. From the above reply the appellant /accused has not completely denied the possibility that he had sexual intercourse with the prosecutrix. The 3 numbers of defence witnesses DW No.1/Lalramnghilhlova, DW No.2/Hranglawta and DW No.3/Malsawma have not deposed anything regarding the incident but they have all expressed their disbelief since they knew the appellant who according to them had a good moral character and was not to misbehave with women in the past. 21. From the evidence that was recorded by the trial court I am of the considered view that there is no reason to doubt the testimony of the prosecutrix which has been duly corroborated by the deposition of PW2 and PW3. No motive is made out for the prosecutrix to falsely implicate the appellant. 22. The Apex Court in State of Uttar Pradesh Vs. Chhotey Lal, (supra) states as follows:- “The important thing that the court has to bear in mind is that what is lost by a rape victim is face. The victim loses value as a person. Ours is a conservative society and, therefore, a woman and more so a young unmarried woman will not put her reputation in peril by alleging falsely about forcible sexual assault. In examining the evidence of the prosecutrix the courts must be alive to the conditions prevalent in the Indian society and must not be swayed by beliefs in other countries. Ours is a conservative society and, therefore, a woman and more so a young unmarried woman will not put her reputation in peril by alleging falsely about forcible sexual assault. In examining the evidence of the prosecutrix the courts must be alive to the conditions prevalent in the Indian society and must not be swayed by beliefs in other countries. The courts must be sensitive and responsive to the plight of the female victim of sexual assault. Society's belief and value systems need to be kept uppermost in mind as rape is the worst form of women's oppression. A forcible sexual assault brings in humiliation, feeling of disgust, tremendous embarrassment, sense of shame, trauma and lifelong emotional scar to a victim and it is, therefore, most unlikely of a woman, and more so by a young woman, roping in somebody falsely in the crime of rape. The stigma that attaches to the victim of rape in Indian society ordinarily rules out the levelling of false accusations. An Indian woman traditionally will not concoct an untruthful story and bring charges of rape for the purpose of blackmail, hatred, spite or revenge.” 23. In light of the observation of the Apex court and the findings of this court on examination of the evidence on record , I am of the considered view that no ground has been made out that calls for interference with the Judgment & Order dated 14.03.2018 passed by the learned District & Sessions Judge, Lunglei Judicial District, Lunglei, who on conviction of the appellant under Section 376 (1) IPC, sentenced him to undergo Rigorous Imprisonment for 7 years with a fine of Rs. 5000/-, i.d. Simple Imprisonment for 1 (one) month. 24. Crl .A 12/2018 is thus dismissed and stands disposed of. 25. LCR is to be returned. 26. In appreciation of the assistance provided by Mr. T. Lalnunsiama, the learned Amicus Curiae his fee is fixed at Rs.7,500/-(Rupees seven thousand five hundred) only to be paid by the Mizoram State Legal Services Authority, on production of the copy of this order.