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2025 DIGILAW 825 (GAU)

Lalfakawma, S/o- C. Lalrohlua v. State of Mizoram

2025-05-20

KAUSHIK GOSWAMI

body2025
J UDGMENT & O RDER : KAUSHIK GOSWAMI, J. Heard Mr. S. Pradhan, learned counsel appearing for the appellant. Also heard Mrs. Linda L Fambawl, learned Public Prosecutor appearing for the State respondent. 2. This criminal appeal is presented under Section 374(2) of the Criminal Procedure Code (hereinafter referred to as “Cr.P.C.”) against the judgment & order dated 21.08.2023 and sentence order dated 22.08.2023 , passed in All Women PS Case No.44/2021 (Crl.Trl No.108 of 2022) whereby the learned Additional Sessions Judge-1, Aizawl, Mizoram (hereinafter referred to as “trial Court”) convicted the appellant under Section 376(1) of the Indian Penal Code (hereinafter referred to as “IPC”) and sentenced thereof to undergo Rigorous Imprisonment for 10(ten) years and fine of Rs.1,000/- (rupees one thousand) only, in default to Simple Imprisonment for 10(ten) days. 3. The brief fact of the case is that on 11.10.2022, the victim “X” lodged an F.I.R., alleging, inter alia, that she was raped by her cousin brother i.e., the accused/appellant in the early morning, around 1.00 am to 3.00 am, inside his bedroom at his house. Accordingly, a case was registered and investigated. During investigation, the victim was examined, her statement was recorded, and she was sent for medical examination. Her vaginal swabs were also taken and sent to the Forensic Science Laboratory (hereinafter referred to as “FSL”) for examination. The Investigating Officer, after arresting the accused/appellant and interrogating him and examining other witnesses, submitted Charge-sheet against the accused/appellant. Thereafter, the trial Court framed charges against the accused/appellant on 06.06.2022 under Section 376(1) of the IPC. 4. During the trial, the prosecution adduced 7(seven) witnesses, who were also cross-examined by the defence. Thereafter, the accused/appellant was examined under Section 313 of the Cr.P.C., wherein he explained the incriminating evidence as well as adduced 2(two) defence witnesses. After completion of the trial, the trial Court pronounced its judgment on 21.08.2023 and sentenced the accused/appellant thereof. As such, the present criminal appeal. 5. Mr. S. Pradhan, learned counsel for the appellant, submits that the trial Court completely erred in ignoring the explanation given by the accused/appellant under Section 313 of the Cr.P.C., which was probable under the surrounding facts and circumstances of the case. As such, the present criminal appeal. 5. Mr. S. Pradhan, learned counsel for the appellant, submits that the trial Court completely erred in ignoring the explanation given by the accused/appellant under Section 313 of the Cr.P.C., which was probable under the surrounding facts and circumstances of the case. He further submits that there is no sufficient material and evidence against the accused/appellant, and the case is also doubtful, as the statement of the victim being sexually assaulted is improbable under the surrounding facts and circumstances, and hence, the accused/appellant is entitled to the benefit of the doubt. He further submits that even if it is assumed that there was some sexual act, it was consensual, and therefore, the conviction is erroneous in law. He further submits that the conviction is also vitiated for non-examination of the sister of the victim, who allegedly was the first person in the morning of 11.10.2021 to whom the victim had made a call immediately after running out of the house of the accused/appellant. He further submits that the first person, Ruatsanga, who opened the door in the morning, was also not examined and cited as a witness. He further submits that it is apparent from the deposition of PW-2 that the victim refused to go upstairs to their house to sleep in the night when she telephoned her and asked her not to stay over at the accused/appellant's place, which is below their floor. 6. Per contra, Mrs. Linda L Fambawl, learned Public Prosecutor for the State respondent while vehemently supporting the conviction and the sentence under appeal, submits that it is clearly evident from the testimony of the victim that the accused/appellant has forcibly raped her without her consent. She further submits that the PW-2 having corroborated the testimony of the victim, interference with the judgment & order under appeal is totally unwarranted. She further submits that in offences relating to Section 376 of the IPC, the sole testimony of the victim is sufficient for convicting the accused/appellant, and no further corroboration is required. She further submits that it is clearly discernible from the records that the victim has stood by her version right from her lodging of the F.I.R., statement before the police under Section 161 of the Cr.P.C., statement before the Judicial Magistrate under Section 164 of the Cr.P.C., and during her deposition before the trial Court. She further submits that it is clearly discernible from the records that the victim has stood by her version right from her lodging of the F.I.R., statement before the police under Section 161 of the Cr.P.C., statement before the Judicial Magistrate under Section 164 of the Cr.P.C., and during her deposition before the trial Court. She therefore submits that the testimony of the victim being wholly trustworthy the judgment of the trial Court ought not to be interfered with. She further submits that the victim and the accused/appellant being close cousins who grew up together, there is no need for the victim to falsely implicate the accused/appellant in an offence of such a nature, which would be totally detrimental to her character and image in the society. In support of her argument, she relies upon the decision of the Apex Court in the case of State of H.P. Vs. Shree Kant Shekari , reported in (2004) 8 SCC 153 . 7. I have given my prudent consideration to the arguments advanced by the learned counsels appearing for both the contending parties, as well as perused the material available on record. I have also duly considered the case laws submitted at the bar. 8. This being an appeal against conviction let me first analyze the evidence on record. PW-1 , who is the victim herself and also the informant, who was aged about 19 years at the time of occurrence deposed that the accused/appellant is the son of her father's sister and that on 08.10.2021, she along with her cousins came from her home Ngopa to Aizawl to fill her B.A. 1 st semester examination form and accordingly, stayed at the house of the accused/appellant's parents. She further deposed that after they came to Aizawl, the wife of the accused/appellant left home and went to her parents' home. However, she does not know the reason. She further deposed that on 10.10.2021 the accused/appellant asked her to stay the night with him at his place and told him that his wife was coming home at night and that after dinner he came to his parents, house, where she was staying and asked her to come to his place and accordingly waited for her and then they both went down together to his place, where they were playing 'Mobile Legend' together till around 11.00 pm. She further deposed that he asked her to sleep on his bed saying that he will sleep on the sofa and his wife will sleep with her when she comes back home and accordingly, she went to bed while the accused/appellant continued playing mobile game till around 1 am. She further deposed that she fell asleep and woke up again and went to pee in the toilet near the kitchen while the accused/appellant was sleeping on the sofa. She further deposed that she noticed that the accused/appellant was sleeping uncomfortably and therefore, she woke him up and asked him to sleep properly. She further deposed that she went to bed again and she did not lock the door as the wife of the accused/appellant was supposed to come home and that she fall asleep and was awaken by the accused/appellant while he was climbing on the other side of the bed. She further deposed that as they had separate blanket she was not frightened or uncomfortable as the accused/appellant is her cousin brother and they were very close and had slept together in one room on many occasions when the accused/appellant used to come to Ngopa. She further deposed that after sometime the accused/appellant moved to her side of the bed and hugged her and she pushed his hands away by telling him that he has crossed the line. She further deposed that thereafter she fell asleep on her side, however, the accused/appellant pulled her and climbed on her and grabbed her right hand tightly and when she tried to fight him with her left hand he grabbed her pants with his other hand and since he was on top of her, she could not breathe properly and could not scream out and the accused/appellant forcibly pulled off her pants and underwear and touched her private part with his hands. She further deposed that while she was crying he raped her by penetrating his penis into her vagina. She further deposed that after he raped her she was still crying and when he was about to get up, she kicked him off the bed after which he went to the bathroom to clean himself and while he was inside the bathroom, she ran to the door, however, as the main door was locked, she went back to the bedroom to take her pant and her mobile phone. She further deposed that before she could get out of the house the accused/appellant came out from the bathroom and threatened her not to disclose the incident to anybody and if she does so, she would be defamed. She further deposed that thereafter, she ran out of the house and that the accused/appellant also ran after her, however, she hid behind a car and telephoned her sister i.e., Siamsiami, who was sleeping in her aunt's place but she did not pick up the phone. She further deposed that thereafter she called her cousin/brother of the accused/appellant i.e., Ruatsanga who opened the door of the accused/appellant's parents place and asked her what happened. However, she told him that she could not sleep and ran up to the bedroom where her sister Siamsiami and her cousin PW-2 were sleeping and she slept with them, after she cleaned herself. She further deposed that on the next day she along with PW-2 went to T. Romana College where they filled up the examination form and on their way back she told the incident to PW-2. She further deposed that after they reached back the house of the accused/appellant's parents, she informed DW-1 i.e., the father of the accused/appellant about the incident, and he asked her what she wanted to do and accordingly, she told him that she wanted to lodge an F.I.R., against the accused/appellant. She further deposed that PW-2 accompanied her to the Police Station where they lodged the F.I.R. She further deposed that after the lodging of the F.I.R., she was taken for medical examination, where she was examined by PW-4 and her blood sample and vaginal swab were also taken and on the same day her judicial statement was also recorded by the Judicial Magistrate i.e., PW-5. She further deposed that after all this, she shifted to DW-2's place to prepare and appear for her examination and while she was staying in the house of DW-2, she started having depression and tried to commit suicide by hanging inside the room while the daughter of DW-2 upon seeing her attempting to hang herself took her down and thereafter she was taken to hospital. 9. During cross-examination she denied the suggestion that the accused had sexual intercourse with her with consent on the day of occurrence. However, she admitted to the suggestion that she had sexual intercourse before the alleged incident. 9. During cross-examination she denied the suggestion that the accused had sexual intercourse with her with consent on the day of occurrence. However, she admitted to the suggestion that she had sexual intercourse before the alleged incident. She further denied the suggestion that there were no injury or bruise mark on her body at the time of her medical examination. She admitted the suggestion that she did not inform the mother and other family members of the accused/appellant about the incident in the morning. She further denied the suggestion that she had told the accused/appellant that she was frightened of getting pregnant after the alleged incident. She further denied the suggestion that she willingly had sexual intercourse with the accused/appellant but since she was afraid of getting pregnant, she had falsely implicated him of the alleged offence. 10. During her re-examination by the Additional Public Prosecutor, she clarified as regards her statement that she had sexual intercourse before the alleged incident is that when she was about 9 years old and used to sleepover at her maternal grandmother's house at Ngopa Chhim Veng, one neighbor had sexually assaulted her. However, she did not inform the matter to any of her family members as she was very young and that no F.I.R., was filed against him. 11. PW-2 , who is the sister of the accused/appellant, aged about 27 years at the time of occurrence deposed that on 11.10.2021 at about 11 am, she accompanied the victim to T. Romana College to fill examination form and on their way home, the victim told her that she wanted to go to the Police Station and when was asked as what was the reason, she replied that the accused/appellant raped her the previous night. Thereafter, they came back home and informed the mother of the accused/appellant about the story and after that they proceeded to the Aizawl Police Station to file an F.I.R. 12. During cross-examination she clarified that on 10.10.2021 at around 11 pm, she called the victim and asked her not to spend the night at the house of the accused/appellant but the victim refused her and continued to stay at the house of the accused/appellant and in the morning she saw the victim at their residence. However, she did not inform her at that time about the alleged rape. 13. However, she did not inform her at that time about the alleged rape. 13. PW-3 , who is the doctor, who had examined the accused/appellant, deposed that upon conducting examination, his findings are as hereunder:- “1. I found him physically and mentally sound with no influence of alcohol or drugs at the time of my examination. 2. There was no seminal stain or any other stains on the clothes as he had already changed his clothes. 3. There were no marks of violence on the body. 4. The genital organs were well developed. 5. There was no clotting of pubic hair due to semen. 6. There was no scratches, abrasion nor laceration on the penis. 7. Smegma was not found around the corona gland. 8. There were no signs of infection in the genital.” 14. PW-4 , who is the doctor, who examined the victim, deposed that upon conducting medical examination on the victim, she found that there were small abrasions over the fourchette and that her hymen was ruptured. She further deposed that she prepared three slides from vaginal pool for presence of spermatozoa and submitted the same to the Police Station for examination. She exhibited the Medical Report of the victim as Exhibit P-10. 15. During cross-examination she clarified that a small abrasion on the genitalia can also be caused by consensual sex. 16. PW-5 , who is the Judicial Magistrate, who recorded the statement of the victim under Section 164 of the Cr.P.C., exhibited the judicial statement of the victim as Exhibit P-14. 17. PW-6 , is the Assistant Director, FSL, Aizawl, Mizoram, who examined the vaginal swab of the victim deposed that upon careful examination of the vaginal swab of the victim, semen of human origin were detected. He further deposed that after examination of the liquid blood sample of the accused/appellant and the liquid blood sample of the victim the following were found:- “1. The male genetic profile generated from Exhibit-A matched with the DNA profile of Exhibit-B i.e. the accused. 2. The female genetic profile generated from Exhibit-A matched with the DNA profile of Exhibit-C i.e. the victim. 3. Based on the above observation it was concluded that the semen from Exhibit-A is that of the accused Lalfakawma.” 18. The male genetic profile generated from Exhibit-A matched with the DNA profile of Exhibit-B i.e. the accused. 2. The female genetic profile generated from Exhibit-A matched with the DNA profile of Exhibit-C i.e. the victim. 3. Based on the above observation it was concluded that the semen from Exhibit-A is that of the accused Lalfakawma.” 18. PW-7 , who is the Investigating Officer, deposed that after receiving the F.I.R., he examined the witnesses including the victim as well as the accused/appellant and has sent the victim and the accused/appellant for medical examination and after completion of the investigation, he submitted Charge-sheet. He further exhibited all documentary evidence as exhibits including the Biological Examination Report submitted by the FSL, Aizawl. 19. During cross-examination, he clarified that the victim did not mention to him about her having any physical injury and the victim also did not mention to him about her being sexually assaulted or raped by any other person before the alleged incident. 20. Upon closure of the deposition of the prosecution witnesses, all the incriminating circumstances were put to the accused/appellant under Section 313 of the Cr.P.C., for explanation, wherein, after denying all the incriminating evidence, he stated the following in his defence as extracted hereunder:- “Q.6. Do you have anything else to say in your favour? Ans: It is a fact that I did not force the victim to have sexual intercourse with me, she invited me to sleep with her in our bed. I went to the bed and we had consensual sexual intercourse and she told me not to ejaculate insider her vagina as she was afraid that she might get pregnant and I told her that I will not ejaculate insider her vagina. While we were having sexual intercourse she was also on top of me.” 21. Thereafter, he adduced two defence witnesses being DW-1, who is his father and DW-2, who is the person, in whose house the victim after the incident started staying. 22. DW-1 , deposed that the accused/appellant is staying at the same building but different floor and that while the accused/appellant stays in the ground floor, he along with his wife and other children stays in the first floor. 22. DW-1 , deposed that the accused/appellant is staying at the same building but different floor and that while the accused/appellant stays in the ground floor, he along with his wife and other children stays in the first floor. He further deposed that on 09.10.2021, the victim came to their house and on 10.10.2021 both the victim and the accused/appellant were washing the scooty of the accused/appellant and after they had their dinner, the victim went to the accused/appellant's place and stayed there for a while. She further deposed that the victim did not come home till 10 pm, so he was being worried and told his daughter PW-2 to call the victim to come home. He further deposed that the victim immediately came home after the phone call and they all went to bed. He further deposed that later on the victim again went to the accused/appellant's place on that same night and on 11.10.2021, the victim told PW-2 that the accused/appellant raped her. 23. During cross-examination, he clarified that the victim visited the accused/appellant's house on the night of 10.10.2021 twice. 24. DW-2 deposed that both the families of the accused/appellant as well as the victim are related to him, and that on 17.10.2021 the father of the victim contacted him and told him about the alleged incident and requested him to bring the victim from the accused/appellant's house and thereafter, he along with his son went to the house of the accused/appellant and brought the victim to their house. He further deposed that thereafter, the victim was staying with them till 22.11.2021. He further deposed that on 22.11.2021 the victim went out and came home at the evening and went straight to her bedroom, and when he called her to have dinner with them, she replied that she was not hungry as she ate some food in the afternoon. After having their meal, when he went to her bedroom and asked the victim whether she was well or not, she replied that she was feeling well. After having their meal, when he went to her bedroom and asked the victim whether she was well or not, she replied that she was feeling well. Thereafter, he went back to their sitting room and at around 6:30 pm his daughter Lalchhanhimi and his grandson Remruatkima went to the victim's room and when they opened the door they found the victim was trying to hang herself and that they stopped her and that when he heard the scream of his children, he immediately went to the victim's room and took the victim down and decided to take her to the hospital. His daughter Lalchhanhimi told him that when they went to the victim’s room and saw her hanging herself, the victim was video calling someone by keeping her mobile phone opposite to where she was trying to hang herself. He further deposed that at that time the victim was still alive and they contacted a taxi driver and when the taxi driver arrived, they put the victim inside the taxi and before they proceeded towards the hospital, two strange men arrived at the spot in their two wheeler and helped them take care of the victim as if they known her before. He further deposed that it looked like when the two strange men reached their house it seemed they already knew that the victim was trying to commit suicide. He further deposed that when his wife questioned them as to what they knew about the incident, they replied that it was because the victim was trying to hang herself as her boyfriend broke up with her. Thereafter, they took the victim to the Civil Hospital Aizawl Casualty and the two men also accompanied them. After the doctor thoroughly examined the victim, the doctor stated to them that the victim was in good condition and so they discharged her. He further deposed that the two strange men still tagged along with them and at the hospital compound and the victim and the two men were laughing together before they proceeded towards home, and when they reached home, the two strange men also accompanied them and he asked them their names but he cannot recollect their name but knew that they were from Ngopa Village. He further stated that they went home at around 11:00 pm and on the next day he took the victim to a psychiatrist and admitted her in the hospital at I.T.I., for observation. He further deposed that the father of the victim came to Aizawl and after her discharge the victim went back to Ngopa. 25. During cross-examination he clarified that he suggested the families of the victim and of the accused/appellant to reconcile the matter in respect of the incident. He further admitted the suggestion that there was sexual intercourse between the victim and the accused/appellant. During re-examination he further clarified that in his opinion the accused/appellant and the victim used to have consensual sexual intercourse. 26. The conviction arising out of an offence under Section 376(1) of the IPC, which provides punishment for rape, apt at the outset to refer to Section 375 of the IPC, which reads as hereunder:- “ 375. Rape .- A man is said to commit „rape? if he- (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:- First.-Against her will. Secondly.- Without her consent. Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly.- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fourthly.- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.- With or without her consent, when she is under eighteen years of age. Seventhly.- When she is unable to communicate consent. Explanation 1.- For the purposes of this section, 'vagina' shall also include labia majora. Explanation 2.- Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1.-A medical procedure or intervention shall not constitute rape. Exception 2.-Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” 27. A perusal of the aforesaid provision reveals that in order to constitute the offence of rape, in the case of a penetration, the same, amongst others, is required to be either against the will or without the consent of the victim. Thus, what is of relevance in cases of rape by alleged penetration is that the prosecution has to establish beyond reasonable doubt that the alleged penetration is without the consent of the victim or against her will. 28. Reading the trial Court judgment, it is apparent that the impugned conviction under Section 376(1) of the IPC is solely based on the testimony of the victim/PW-1. Section 134 of the Indian Evidence Act, 1872, provides that "no particular number of witnesses shall in any case be required for the proof of any fact.” Thus, it is not the number of witnesses that is essential for conviction, but it is the quality of the evidence that is required to be judged by the Court to place credence on the statement of the witness. It is well settled by now by a catena of decisions of the Apex Court that a conviction under Section 376 of the IPC can be made solely on the basis of the testimony of the prosecutrix/victim herself, provided that the same inspires confidence. In such a situation, there is no need for any corroboration before acting on such testimony of the prosecutrix/victim. Thus, in the case of rape, faced with the testimony of the sole prosecutrix/victim, the deposition of the prosecutix has to be carefully examined and if the same inspires confidence, the same can be relied without seeking corroboration. However, if the deposition of the prosecutix/victim suffers from infirmities and the probabilities factors renders it unworthy of credence, corroboration has to be looked into before acting on the basis of such sole testimony. 29. Reference is made to the decision of the Apex Court in the case of State (NCT of Delhi) Vs. Pankaj Chaudhary , reported in (2019) 11 SCC 575 Paragraph 29 of the aforesaid decision is reproduced hereunder for ready reference:- “29. It is now well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. [Vishnu v. State of Maharashtra [Vishnu v. State of Maharashtra, (2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217]]. It is well-settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the "probabilities factor" does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. [State of Rajasthan v. N.K. [State of Rajasthan v. N.K., (2000) 5 SCC 30 : 2000 SCC (Cri) 898] ]". 30. [State of Rajasthan v. N.K. [State of Rajasthan v. N.K., (2000) 5 SCC 30 : 2000 SCC (Cri) 898] ]". 30. Turning back to the testimony of the victim, it appears that when she, along with her cousin, came to stay in the house of the accused/appellant's father, the wife of the accused/appellant left his home and went to her parents' home and the victim does not know the reasons. It further appears that the accused/appellant resides on the ground floor of the same building with his wife, while his parents reside on the upper floor. It further appears that on the night of the incident, the accused/ appellant, having called her down after her dinner at his parents' house, she came down and played with him 'Mobile Legends' till 11 pm. It further appears that the victim, instead of going up to sleep in the house of the accused/appellant's parents, where she was staying, instead slept in the bedroom of the house of the accused/appellant. It further appears that at around 1 o'clock when she woke up, she saw the accused/appellant sleeping uncomfortably on the sofa, and therefore she woke him up and asked him to sleep properly. It further appears that thereafter she went to bed; however, the accused/appellant came to sleep on the other side of the same bed. It further appears that since they grew up together and were very close, she did not feel uncomfortable and went to sleep. It further appears that later on the accused/appellant moved to her side of the bed and tried to hug her, while she pushed his hands away by telling him that he was crossing the line. It further appears that instead of going up to the house of the accused/appellant's parents, where she was staying, she continued sleeping in the bed with the accused/appellant and that later on the accused/appellant forcefully raped her by penetrating his penis. 31. A careful scrutiny of the testimony of the victim, a doubt is coming to the mind of this Court as to whether the allegation of rape as accounted by her can be believed. 31. A careful scrutiny of the testimony of the victim, a doubt is coming to the mind of this Court as to whether the allegation of rape as accounted by her can be believed. This Court cannot be unmindful of the fact that it is clearly discernible from her testimony that when she arrived at Aizawl to stay in the house of the accused/appellant's parents, the wife of the accused/appellant left for her parents' home and that in her absence she, on her own will, slept in the house of the accused/appellant while she could have easily gone upstairs to sleep with her sister and cousins, who were sleeping on the upper floor. That apart, what appears to be further unbelievable and improbable is that even when the accused/appellant came to sleep by the side of her in the same bed and tried to hug her, though she removed his hand, she chose to continue sleeping with him in the same bed instead of going upstairs. Thus, there being a reasonable doubt having come into the mind of this Court as regards the veracity and credibility of the testimony of the victim, it would not be safe to sustain the conviction of the accused/appellant solely on the basis of such testimony. Therefore, corroboration is needed to be looked into in order to maintain the conviction under appeal. 32. Now turning to the testimony of the other prosecution witnesses, especially PW-2, it appears that she has clarified during her cross-examination that on the date of occurrence at around 11 pm, when she called the victim and asked her not to spend the night at the house of the accused/appellant, she refused her and continued to stay at the house of the accused/appellant. It further appears from the testimony of the doctor (PW-3), who had examined the accused/appellant, that there were no marks of violence on the body of the accused/appellant, nor were there any scratches, abrasions, or lacerations on the penis of the accused/appellant. It further appears from the testimony of the doctor (PW-4) that the hymen of the victim is ruptured. It is further established from the testimony of PW-6, the forensic expert, that there was sexual intercourse between the accused/appellant and the victim. Thus, what was established is the factum of sexual intercourse between the accused/appellant and the victim. It further appears from the testimony of the doctor (PW-4) that the hymen of the victim is ruptured. It is further established from the testimony of PW-6, the forensic expert, that there was sexual intercourse between the accused/appellant and the victim. Thus, what was established is the factum of sexual intercourse between the accused/appellant and the victim. However, in order to constitute the offence of rape under Section 375 of the IPC, the prosecution must prove that the act of sexual intercourse was without the consent of the victim, unless it falls under the 6 th exceptional description, beyond reasonable doubt. However, if the entire evidence of the prosecution is weighed carefully, there appears to be nothing on record to indicate that the accused/appellant had sexual intercourse with the victim without her consent. In fact, on the contrary, it appears that there could be another view probable on the basis of the evidence unfolded: that the victim had consensual sexual intercourse with the accused/appellant. In fact, the evidence of the medical witnesses also supports the probability of consensual sexual intercourse. That being so, it is settled law that if two views are possible on the facts and circumstances of the case, the one favourable to the accused is to be taken. Hence, the prosecution has failed to establish that the sexual intercourse between the accused/appellant and the victim was without the consent of the victim beyond reasonable doubt. That being so, no offence under Section 375 of the IPC is made out. 33. Undoubtedly, in cases relating to the offence of rape, the evidence of the prosecutrix must be given predominant consideration; however, to hold that this evidence has to be accepted even if the story is improbable and belies logic would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. 34. In view of the above, I am of the view that the story of the prosecution is unbelievable and improbable in the facts and circumstances of the case. This brings me to the defence taken by the accused/appellant. It appears that the accused/appellant has clearly explained in his 313 Cr.P.C., examination that he and the victim had consensual sexual intercourse. In view of the above, I am of the view that the story of the prosecution is unbelievable and improbable in the facts and circumstances of the case. This brings me to the defence taken by the accused/appellant. It appears that the accused/appellant has clearly explained in his 313 Cr.P.C., examination that he and the victim had consensual sexual intercourse. A careful perusal of the explanation given by the accused/appellant in his examination under Section 313 of the Cr.P.C., shows that the accused/appellant has taken the plea of defence during cross-examination of the prosecution witnesses. That apart, it appears that the accused/appellant has also adduced the evidence of two witnesses, out of which the defence witness No.2, who is a common relative to both of them and who clarified during cross-examination that the accused/appellant and the victim used to have consensual sexual intercourse. It further appears that the trial Court did not consider the explanation given by the accused in his statement under Section 313 of the Cr.P.C. It is settled law that in a criminal trial, the trial Court is duty bound to consider the explanation given by the accused during his examination under section 313 of the Cr.P.C. 35. Undoubtedly, the trial Court is not bound to accept it, but at the same time, it cannot ignore it. In other words, the trial Court has to either accept it or reject it. But in either eventuality must give reasons. Therefore, non- consideration of the explanation given by the accused in his 313 Cr.P.C. examination would vitiate the trial. That apart, if the accused adduces evidence after the closure of the prosecution evidence, the trial Court is also duty bound to consider the same and see for itself if the same is relevant. However, the standard of proof of the defence is not the same as that of the prosecution. The accused has to probabilise the defence by meeting the standards of preponderance of probability (Refer: - Reena Hazarika v. State of Assam , reported in 2019 (13) SCC 289 ). However, the standard of proof of the defence is not the same as that of the prosecution. The accused has to probabilise the defence by meeting the standards of preponderance of probability (Refer: - Reena Hazarika v. State of Assam , reported in 2019 (13) SCC 289 ). Viewed thus, in the facts of the instant case, the trial Court having neither considered the explanation given by the accused in his 313 Cr.P.C., examination nor having considered the evidence of the defence witnesses, which, if considered, probabilises the defence of the accused/appellant by meeting the standards of preponderance of probability, and therefore the trial in question is vitiated. 36. In any view of the matter, it is amply evident that the prosecution has not been able to prove the guilt of the accused/appellant beyond reasonable doubt. Therefore, a reasonable doubt having arisen in the mind of this Court, the benefit must go to the accused/appellant. As such, the accused/appellant deserves to be acquitted. 37. That being so, the impugned conviction passed by the trial Court is not sustainable in law, and therefore the judgment & order dated 21.08.2023 and the sentence order dated 22.08.2023, passed in All Women PS Case No.44/2021 (Crl.Trl No.108 of 2022), by the learned Additional Sessions Judge-1, Aizawl, Mizoram, is hereby set aside and quashed. 38. As such, the appellant stands acquitted of the charge framed against him, and he shall be released from the jail forthwith. 39. Resultantly, the concerned jail authorities are directed to release the appellant from custody forthwith, if his custody is not required for any other case or purpose. 40. Accordingly, the criminal appeal stands allowed and is disposed of.