J U D G M E N T

Date : 20-05-2022 Heard Mr. C. Lalfakzuala, learned Amicus Curiae for the appellant and Mr. C.

Zoramchhana, learned Public Prosecutor for the State respondent. This is a Jail appeal against the Judgment & Order dated 27.05.2019 passed by the learned Addl. District & Sessions Judge convicting the appellant under section 376(1) IPC and sentencing him to undergo R.I 7(seven years) with fine of Rs.5000/- in default SI for another 2 (two)

months vide sentence order dated 28.05.2019.

2] The prosecution story in a nutshell is that on 16.01.2017, at around 1:00 PM, Mrs. Vanlalchingi, 34 years of age resident of Chalrang Mel-5, Champhai District had submitted a written First Information (FIR in short hereinafter) to Khawzawl Police Station to the effect that on 15.01.2017 in between 7-9 AM, she had been forcibly raped by Mr. F. Laldawngliana 40 years of age S/o Lalchhuanga, resident of South Khawhai at a place about 2 kilometres away from Chalrang village. The Khawzawl police station had registered the case vide Kzl.PS Case No. 7/2017 under Section 376 (1) IPC against the accused/appellant F. Laldawngliana.

3] The officer-in-charge, Khawzawl police station had entrusted Mr. C. Thankhuma, Inspector of Police to investigate. The case I.O examined the complainant/prosecutrix and recorded her statement. He also examined other witnesses. He had visited the place of occurrence and drew rough sketch map of the crime scene. He sent the procecutrix to Medical Officer, Khawzawl Community Health Centre (CHC) for examination. He arrested the accused/appellant and also sent him to for medical examination. The case I.O had interrogated the accused/appellant who admitted the charge leveled against him. The medical report of the prosecutrix revealed that blood stain discharge was present around the vaginal orifice and the vaginal swab taken and sent for laboratory test revealed presence of semen. Having found a prima facie case against the accused, the case I.O submitted the charge sheet under Section 376 (1)

IPC against the accused and sent him up to the court to face his trial.

4] The Court of Additional Sessions Judge framed charge against the accused/appellant under section 376(1) IPC to which the accused pleaded not guilty and asked for trial. The prosecution examined as many as 4 witnesses. The case I.O (PW-4) passed away before his examination during the course of trial. The accused/appellant on examination under section 313 Cr.P.C explained that it was consensual sex and denied all the incriminating evidence made against him. Two defence witnesses were examined. After the parties had adduced their evidence, the learned trial court on hearing both the parties passed the impugned Judgment &

Order dated convicting the appellant under section 376(1) IPC and sentencing him to undergo R.I 7(seven years)with fine of Rs. in default SI for another 2 (two) months.

Aggrieved, the appellant has filed the instant appeal.

5] Mr. C. Lalfakzuala learned Amicus Curiae for the appellant submits that the medical report of the prosecutrix stated that there was presence of semen however, the prosecutrix herself has stated that the accused/appellant could not ejaculate, further the semen found on the medical examination of the victim was not sent to FSL for examination to ascertain whether the semen belonged to the appellant or not. The case I/O in this case had expired and was not able to depose in the Court to explain the reasons why the semen found was not sent to FSL. In this case the medical examination of the accused/appellant was not done to ascertain whether the accused/appellant could performed sexually and thus the provisions of section 53 Cr.P.C was not complied with the prosecution has also failed to make Mr. China a witness in this case though the alleged victim mentioned his name in her deposition. 6] The learned Amicus Curiae further submits that the court has simply held that the defence evidence was not helpful without mentioning any reason