A conviction for rape requires establishing the victim's incapacity to consent due to mental unsoundness, and procedural fairness must be maintained in questioning the accused on all evidence.

JUDGMENT :

SANJEEV KUMAR SHARMA, J.

This appeal is directed against the order dated 10.08.2023 passed by the Addl. Sessions Judge, Aizawl Judicial District in S.R No. 111/2022 whereby the accused/appellant was convicted of the offence under Section 376 (2)(l) IPC and sentenced to undergo R.I for 10 years and to pay a fine of Rs. 1,000/- only, in default, S.I for 10 days.

2. The case in brief is that on 17.03.2022, an FIR was lodged by Mr. PC Zoliansanga, reporting that his aunt, Mrs. X (the name of victim is withheld in the judgment), who is mentally retarded, had left home on 16.3.2022 around 1:00 pm and returned home at around 11:00 pm and was suspected to be raped by some unknown person. Hence, the instant case was registered and investigated into.

3. In the course of investigation, the I.O recorded the statements of the witnesses, sent the victim as well as the accused for medical examination and also sent certain samples to FSL for examination and DNA test. However, the statement of the victim could not be recorded by the Magistrate under Section 164 CrPC. On completion of the investigation, the I.O also submitted a charge-sheet. The learned trial court framed charge under Section 372(2)(l) IPC against the accused which he denied and the trial commenced.

4. During the trial, prosecution examined seven (7) witnesses, out of nine listed witnesses, who were cross-examined by the defence. The victim was not examined as she was bedridden due to stroke, and her attendance was dispensed with after a commission appointed for her examination was returned with a report that the victim was unable to remember her name and unable to answer any question put to her due to stroke. Accused/appellant was examined under Section 313 Cr.P.C and he adduced no evidence in his defence.

5. The evidence of the case may be summarized:-

6. PW No. 1 is the nephew of the victim and PW No. 2 is his wife while PW No. 4 is the daughter of PWs No. 1 and No. 2. All of them deposed that the victim is mentally disturbed/unstable after having three children and she and her husband were divorced and since then she has been living with them. PW No. 1 and No. 2 know the accused and PW No. 1 stated that the accused used to work as a potter at his aunt’s shop at Dam Veng, Aizawl.

7. PW No. 1, No. 2 and No. 4 deposed that around 1:00 pm on 16.3.2022 their family came to know that the victim was missing from home and she did not come home even at dinner time, and they were worried sick as the victim was mentally unstable/disturbed. PW Nos. 2 & No. 4 and their family members searched for the victim, and they were informed by some neighbors that they saw the victim scolding one alcoholic man named Kawla near their house, and some neighbors also informed them that they saw the victim pushing away Kawla at Thakthing steps, which was about 200 meters from their house. PW No. 1 came home and he was informed about the situation and he then telephoned the Police Station informing about the missing victim and also posted the matter in their family Whatsapp group, Venghnuai whatsapp group etc. The same night, PW No. 1 received a phone call from one female from Venghnual informing him that they saw the victim walking around at Venghnual Sihpui Veng holding a stick and mumbling. PW No. 1 and his brother, P.C Zohmangaiha and his cousin, P.C Sangzuala, proceeded towards Venghnuai and brought home the victim around 11:00 pm. She looked tired and agitated, and her hair was tangled and covered with dirt and dried leaves and her pants were also covered with dirt. P