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2023 Supreme(Gau) 1482
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
(ITANAGAR BENCH)
SUSMITA PHUKAN KHAUND, J.
Shri. Tamar @ Chikmar Malling, S/o Lt. Tachik Malling - Appellant
Versus
The State of Arunachal Pradesh, represented through the ld. Public Prosecutor and Anr. – Respondents
Crl. Appl. No. 13 (AP) Of 2023
Decided On : 29-11-2023
For the Appellant :Mr. R. Sonar, Advocate
For the Respondents: Mr. J. Tsering, learned Addl. P.P.
IMPORTANT POINT
The judgment underscores the necessity for prompt lodging of FIRs in sexual assault cases to ensure the integrity of evidence and the importance of consistent and credible witness testimonies in securing a conviction.
Headnote:
CRIMINAL LAW - RAPE - IPC SECTION 376(1), Cr.P.C. SECTIONS 397, 398, 401, POCSO ACT SECTION 4 - The court analyzed the provisions of IPC Section 376(1) concerning the definition and punishment for rape, and the procedural aspects of the Cr.P.C. regarding the filing of FIRs and the admissibility of evidence. The court emphasized the importance of prompt reporting of crimes to avoid embellishment and inconsistencies in testimonies. The court found significant contradictions in the victim's statements and the evidence presented, leading to the conclusion that the prosecution failed to establish the case beyond a reasonable doubt.
Fact of the Case:
The appellant, Tamar Alias Chikmar Malling, was convicted under Section 376(1) IPC for allegedly raping a 16-year-old girl at his residence. The incident occurred on 27.10.2017, and the FIR was lodged 20 days later. The victim's father filed the FIR after a local settlement attempt (Kebang) failed, and the victim was reportedly assaulted by the appellant's wife after the incident.
Finding of the Court:
The court found the evidence against the appellant to be inconsistent and unreliable. The victim's testimony was contradicted by her own statements and those of other witnesses. The delay in filing the FIR and the lack of medical evidence further weakened the prosecution's case. The court concluded that the prosecution failed to prove the charges beyond a reasonable doubt.
Issues: Whether the trial court erred in convicting the appellant under Section 376(1) IPC based on the evidence presented, particularly considering the contradictions in the victim's statements and the delay in lodging the FIR.
Ratio Decidendi: The court held that the evidence presented by the prosecution was not credible and was riddled with contradictions. The delay in filing the FIR was not satisfactorily explained, and the victim's testimony did not inspire confidence. The court reiterated the principle that a conviction must be based on reliable and consistent evidence.
Final Decision: The appeal was allowed, the conviction and sentence were set aside, and the appellant was ordered to be released unless wanted in another case.
JUDGMENT :
(Susmita Phukan Khaund, J.) :
1. Heard Mr. R. Sonar, learned counsel appearing for the petitioner. Also heard Mr. J. Tsering, the learned Public Prosecutor representing the State of Arunachal Pradesh/respondent No. 1. Mr. K. Saxena, the learned counsel for respondent no. 2.
2. Shri. Tamar Alias Chikmar Malling (hereinafter the appellant) has filed this revision Petition Revision petition under Section 397, 398 R/w 401 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short), challenging the legality and the propriety of the judgment and order dated 05.09.2022 and the order of sentence dated 07.09.2022, passed by the learned Additional Session Judge, Basar, Leparada District, in connection with BSR/Session Case No. 01/2020, convicting the petitioner under Section 376(1) of the Indian Penal Code (IPC for short) and sentencing him to undergo rigorous imprisonment for 07 (seven) years and a final Rs. 2000/-(Rupees Two Thousand Only) with default stipulation. This revision petition was later registered as an appeal vide provisions of Section 401(5) of the Cr.P.C.
3. Brief facts leading to this appeal is that on 27.10.2017 at around 10.00 hours, at Urban Complex, Lenyi Village under Dumporijo P.S., the appellant committed rape on the 16 year old victim ‘X’, who was staying in the house of Smt. Yamak Nguki. Taking advantage of the absence of the family members in the house, the appellant committed rape on the victim ‘X’. The victim's father ‘Y’ lodged and FIR, which was registered as DMJ PS C/No. 15/17 U/Ss-376/506 IPC R/w Section 4 of POCSO Act, 2012 (POCSO Act for short).
4. The Investigating Officer (I/O in short) embarked upon the investigation and on completion of investigation submitted charge-sheet against the appellant. At the commencement of trial, a formal charge under Section 376(1) IPC was framed and read over and explained to him to which the appellant abjured his guilt and claimed innocence. To connect the appellant to the crime, the prosecution adduced the evidence of 6 (six) witnesses including the Medical Officer (M.O in short) and the I/O.
5. The circumstances against the appellant projected through the evidence have been read over and explained to him under Section 313 Cr.P.C and his responses were recorded.
6. Mr. R. Sonar, learned counsel for the appellant laid stress in his argument that the FIR was lodged by the victim's father after 20 days. There is no medical evidence against the appellant as no ingredients under the POCSO Act could be found. The POCSO Act was dropped and the appellant was convicted under the Indian Penal Code. It is contended the evidence of DW-1 clearly reveals that despite being called out repeatedly, the victim could not come out and this causes a dent in the evidence against the appellant. It is not possible to commit rape on a victim who resides in the building occupied by 45 to 50 odd family members. The place of occurrence was a building and was occupied by 40 to 50 family members and the offence was allegedly committed during the day time. It is submitted that the allegation of sexual assault has been negated by the victim, who herself stated under Section 164 Cr.P.C, she herself removed her garment.
Although, PW-3 stated that nobody resides near the place of occurrence, yet the sketch-map Exhibit-P/13/PW-5 clearly reveals that there are around 40 to 45 families around the place of occurrence.
7. It is submitted by the learned counsel on behalf of the petitioner that the victim who was inside the bathroom could have easily cried for help. The I/O has reflected through his deposition that only on the statement of the victim, the charge-sheet was filed. There was no FSL report, no medical report to prove the case against the appellant. It is submitted that the learned trial Court erroneously relied on the statement of the appellant under Section 313 Cr.P.C, and convicted him. It is admitted by the appellant that a Kebang was held but the Kebang was not held due to the inc
