O R D E R

14.12.2021 (Tuesday)

Mr. T. Lalzekima, learned counsel for the applicant and Mr. C.

Zoramchhana, learned Public Prosecutor are present.

2. Heard both the parties.

3. This is a Criminal Revision Petition under Section 397 and 401 r/w 482 of Criminal Procedure Code, 1973 (“Cr.P.C.”) against the Order dated 03.11.2021 and 05.11.2021 passed by the Court of the Additional District & Sessions Judge, Aizawl in S.C. No. 61/2019 A/o Crl.Tr. No. 727 of 2019.

4. The brief facts of the case is that on 28.09.2018, a First Information Report (F.I.R) was lodged by one Zothansanga (P.W. 1) before the Officer-in- Charge of Aizawl Police Station, Aizawl, Mizoram against Zodinliana Sailo (Accused No. 1/Petitioner) and R. Lalhruaitluanga to the effect that on 07.09.2018 F.I.R. was received stating that Zodinliana and his friend let him into a Verna Car bearing MZ-01-J3333, they proceeded towards Zampuimanga memorial via Kulikawn in the Verna car he was driven to World Bank Road towards ITI. It might have been 4 o’clock in the morning and it was still dark. After he was let out of the vehicle, he was asked to strip off his clothes, under threat they stripped his under wear/boxer from behind and he stood there bare naked. Zodinliana took pictures of his naked body by his phone. They let him lie down on the main road, every time he struggled, they threatened him by placing a broken bottle on his throat. Thereafter, Zodinliana forced him to bend down on the railing on the side the road, he undid his belt and trousers and tried to force himself on his ass. His friend then told him not to do such a thing. Zodinliana put back on his clothes, and he also put on his boxer and torn shirt. Thereafter, and he was forced to crawl on his belly and this torture must have been more than one hour. They then suddenly lifted his legs and threw him off the road beside the railing, he hit his jaw bone, as he lost his senses for a short while. He was further threatened to be beaten with a piece of wood lying on the side of the road and thereafter they sped away in they vehicle.

5. That the Officer-in-Charge of Aizawl Police Station, Aizawl, Mizoram on receipt of the said First Information Report (F.I.R) registered the same as Aizawl Police Station Case No. 202/2018 under section 341/342/ 323/506 Indian Penal Code, 1860 (“IPC”) on 28.9.2018 and started the investigation. Later sections

367/120B/294 IPC were added on the prayer of the case I.O.

6. That on 30.07.2019 charge were framed against the Petitioner and Co. accused R. Lalhruitluanga under sections 341/342/323/ 506/367/294 and 120’B’

IPC.

7. However, on 03.11.2021, the Ld. Trial Court after hearing both the parties, was of the opinion that alteration of charges was necessary by adding section 34 IPC to section 294 and 377 r/w 511 IPC in addition to charges already framed against the accused persons including the Petitioner.

8. On 05.11.2021 the charge under sections 341/342/323/506/367/120’B’(1)/ 294 R/w 34 IPC and 377 r/w 511 IPC was read out and asked whether the petitioner/accused No.1 & Co-accused, Lalhruaitluanga plead guilty to which both the accused persons pleaded not guilty.

9. Aggrieved by the orders of the learned Addl. District & Sessions Judge dated 03.11.2021 and 5.11.2021 the petitioner has approached this court under section 401 r/w 482 of Criminal Procedure Code, 1973 for setting aside the above mentioned orders.

10. The learned counsel for the petitioner has submitted that on perusal of the FIR dated 10.09.2018 and on perusal of the Charge Sheet submitted in the instant case would go on to show that there are absolutely no elements or ingredients which warrants the addition of charge under Section 377 of IPC.

11. He further submitted that at the same time, perusal of the deposition of P.W.1 before the Court would go on the show that the P.W.1/Complainant has not made any mention regarding the Accused trying to touch his penis by/with a taser. However, inspite of this fact, the Ld. Trial Court has