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GAUHATI HIGH COURT
Nishitendu Chaudhury, J.
K. Sangkhuma - Appellant
Versus
State of Mizoram - Respondent
Crl. A. No. 14(J) of 2014
Decided On : 19-11-2014
Criminal Procedure Code, 1973 – Section 164 , 313, 281(1) and 281(2) – Indian Penal Code, 1860 – Section 154 and 376(2)(f) - Evidence Act - Section 114(g) – Offence of Rape – Monir girl – Appeal against conviction - Accused guilty of offence under section 376(2)(f) of IPC and sentenced him to suffer RI for a period of 10 years with a fine in default, to suffer RI for another 6 months - It was provided that if fine was realized, it be given to the victim - It is to mention here that throughout period of trial accused continued to remain in custody and he was not released on bail - It is stated that appellant is still in custody - Case in hand arose out of P.S. Case No under section 376(2)(f), IPC - Case was registered on basis of a written FIR lodged by one informing that on the same day at around present appellant took his 11 year old grand daughter inside his house and then raped her - This FIR has been exhibited as Exhibit PI by informant who was examined as PW1 in this case - He admitted in course of cross-examination that he was not present at time of occurrence and came to know about the offence only after he was informed by others - There accused saw her and asked her to accompany him to his house - She refused to accompany but he caught hold of her hand and pulled her in his house - There was nobody in house at that time – Held, PW4 who claimed to have been nearby place of occurrence broke open door and found victim inside house of the accused - He also does not say as to condition of accused at first sight when he broke open Door - He did not say as to whether victim was in dress or not - Only material he could furnish is that he had heard victim crying and saying Apa Sangkhum, a na, ka duh tawh Id (Uncle Sangkhum, it pains, I dont want it any more) - Now if commission of rape is not proved then at-least accused did something to victim causing her pain - There is no allegation that he had put off her undergarment - Existence of undergarment is discernible from Exhibit P2 which shows that victim was putting on undergarment which did not contain any seminal stains and it was sent to laboratory for examining existence of seminal fluid - When there was an undergarment put on by victim and there is no allegation that accused had put it off but had only pulled off petticoat, it cannot be said that there was either any rape or that there was any intention of rape on part of the accused - Having so found, conviction of accused under section 376(2)(g), IPC is hereby set aside - Appeal stands partly allowed.
2. The prosecution story is that on 29.7.2011, Kolasib Police Station received written ejahar from one H.C. Hrangkunga informing that on,, the same date at around 12/12:30 p.m., the present accused K. Sangkhuma committed rape in his house on his 11 years old granddaughter. Thereupon, police registered Kolasib PS. Case No. 47/2011 on 29.7.2011 under section 376(2)(f), IPC and started investigation.
3. The I.O visited the place of occurrence, drew sketch map and examined the witnesses including the victim girl and arrested the accused. Charge sheet was submitted against the accused after completion of trial. On being committed to sessions, the learned Session Judge framed the following charge against the accused by order dated 15.11.2011:
“That you on 21.7.2011 at about 12:30 p.m., you committed rape on (name withheld) 11 years inside your residence and thereby committed an offence under section 376(2)(f), IPC and within the cognizance of this court, And I hereby direct that you be tried by this court on the said charge.”
4. The accused pleaded not guilty and claimed to be tried. Prosecution examined as many as 6 witnesses including the victim, the doctor and the I.O. Defence did not lead any evidence. Thereafter, the accused was examined under section 313, Cr.PC and both the sides were heard in course of argument.
5. The learned Session Judge by judgment and order dated 1.3.2012 held the accused guilty of offence under section 376(2)(f) of the IPC and sentenced him to suffer RI for a period of 10 years with a fine of Rs. 5,000, in default, to suffer RI for another 6 months. It was provided that if the fine was realized, it be given to the victim. It is to mention here that throughout the period of trial, the accused continued to remain in custody and he was not released on bail. It is stated that the appellant is still in custody.
6. The aforesaid judgment and order dated 1.3.2012 passed by the learned Session Judge has been challenged before this court by way of jail appeal. This court appointed Mr. Lalfakawma learned counsel as amicus curiae to assist this court.
7. I have heard Mr. Lalfakawma, learned amicus curiae as well as Mr. A.K. Rokhum, learned Public Prosecutor, Mizoram.
8. The case in hand arose out of Kolasib P.S. Case No. 47/2011 under section 376(2)(f), IPC. The case was registered on 29.7.2011 on the basis of a written FIR lodged by one H.C. Hrangkunga informing that on the same day at around 12/12:30, present appellant took his 11 year old granddaughter inside his house and then raped her. This FIR has been exhibited as Exhibit PI by the informant who was examined as PW1 in this case. He admitted in course of cross-examination that he was not present at the time of occurrence and came to know about the offence only after he was informed by others.
9. PW2 is the victim. She stated on oath that the accused is a permanent resident of the area. She was born on 26.12.1999 and was reading in Class VI at that time. On the day of occurrence at about 10/11 a.m., her mother sent her to buy some articles from the nearby shop. There the accused saw her and asked her to accompany him to his house. She refused to accompany but he caught hold of her hand and pulled her in his house. There was nobody in the house at that time. He laid her on the bed, pulled off her petticoat and then lied on her and committed sexual intercourse with her. He told her that if she would not like to have sex with him he would tell her parent and since she was afraid of being beaten up by her parents she could not but to yield to have sex with him. She admitted that she did not
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