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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
Code of Criminal Procedure, 1973 - Section 374 - Indian Penal Code, 1860 - Imprisonment - Penalty - Appeal is directed against the judgment and order passed by learned Addl. Session Judge-I, convicting the appellant in SR Case and sentencing him to suffer RI for 10 years with a fine, in default, to suffer RI for another 6 months - Held, Victim stated on oath that the accused pulled off her petticoat and then made her to lie on his bed and he himself mounted on her - There is no allegation that he had put off her undergarment - Existence of undergarment is discernible from Exhibit P2 which shows that the 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 the victim and there is no allegation that the accused had put it off but had only pulled off the petticoat, it cannot be said that there was either any rape or that there was any intention of rape on the part of the accused - Having so found, conviction of the accused is hereby set aside - However, he is convicted and is sentenced to suffer RI for 5 years and to pay a fine which if paid shall be given to the victim - However, if the fine is not paid, the accused shall be liable to suffer RI for another 6 months and both the sentences shall run concurrently - Period already served by the accused shall be set off - Appeal 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 pm, the present accused K. Sangkhuma committed rape in his house on his 11 years old granddaughter. Thereupon, police registered Kolasib P.S. 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. Chargesheet 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 pm, 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 CrPC 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. 5000/-, 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 P1 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 AM, 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 sho
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