IN THE GAUHATI HIGH COURT (The High Court of Assam: Nagaland: Meghalaya:Manipur: Tripura:Mizoram & Arunachal Pradesh)

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1 IN THE GAUHATI HIGH COURT (The High Court of Assam: Nagaland: Meghalaya:Manipur: Tripura:Mizoram & Arunachal Pradesh) (AIZAWL BENCH) CRIMINAL REVISION PETITION No.4 of 2011(J) Sh.Krosnunnapara -Vs- State of Mizoram..Petitioner..Respondent BEFORE THE HON BLE MR.JUSTICE P K MUSAHARY For the petitioner For the State : Mr.Mr. Raulkhuma Hmar (Amicus Curiae) : Mr. A.K.Rokhum P P Mizoram, Date of hearing & : Judgment JUDGEMENT & ORDER (ORAL) This revision petition from jail is directed against the judgment and order dated rendered by the learned Addl. District & Sessions Judge, Lunglei in Crl. Trial No.237/2007 convicting the petitioner u/s 376 IPC and sentencing him to undergo rigorous imprisonment for three years and to pay a fine of 2000/- in default simple imprisonment for 20 days. 2. The prosecution story is that on at pm Pu Ngursangliana of Chawnpui, Tlabung submitted a written report that on at 8.00 pm his daughter XM (real name withheld), aged 14 years was alleged raped by one Krosnunpara (27) son of Sangnawna of Chawnpui, Tlabung while they were hunting crab and prawns at the river Thawri Kau Lui. On the basis of the said FIR,

2 Tlabung P.S.Case No.21 of 2007 dated u/s 376 IPC was registered and duly investigated into. During investigation the I.O. visited the place of occurrence and drew a rough sketch map of the place of occurrence. The I.O. examined the local witnesses and recorded their statements. He also seized the undergarments of the victim and got the victim medically examined and obtained medical report. He seized the birth certificate (photo copy) as produced by the father of the victim and then arrested the accused petitioner and produced before the court. The accused admitted his guilt and the I.O. on the basis of the material collected by him, submitted the charge-sheet. The case, on being committed, the learned Addl. Sessions Judge framed charge u/s 376(1) IPC against the accused, who on being read over and explained in the language known to him, pleaded guilty. 3. The prosecution examined as many as 11 witnesses including the victim girl and the medical officer. The learned trial court convicted and sentenced the accused as stated earlier on the basis of evidence of the witnesses, particularly P.W.5, victim girl which was supported by the evidence of P.W.2, 3 and The victim girl was examined as P.W.5. She deposed that she was born on and was studying in class-vii in the year She identified the accused in the dock. She stated that on the accused invited her to go to Thawri Kau Lui ( a local river ) to collect crab crowns. She was accompanied by her friend Lenmawii and one Sri Ramesh, a friend of the accused. At about dusk they took meal and thereafter they continued to go upward. Accused told that he left his dao somewhere behind and he asked his friend Ramesh and Lallenmawii to take his dao. He proceeded farther with the victim and

3 suddenly the accused caught her from the back and laid her down forcibly, took off her half pant and underwear and forcibly had sexual intercourse with her. On her way towards home, when she met Ramesh and Lallenmawii, she told them that she was raped by the accused. On reaching home she also told her parents about the incident and begged her mother for forgiveness. In cross examination she denied the suggestion that she was not born on She also denied the suggestion that the copy of the birth certificate was fake as she did not bring the original copy. She stoutly denied that the accused did not put his hand on her mouth and she willfully took off her underwear and half pant and that she did not cry for help and did not resist the accused at all. She also denied that she had any love affairs with the accused and the accused did not rape her. 5. Shri Ramesh, a friend of the accused was examined as P.W.2. He testified that he along with accused, the victim girl and Lallenmawii set out to collect crab in Thawri Kau Lui reiver and they remained their till dusk. While collecting crab the accused stated that he had left his dao somewhere in the stream and asked him and Lallenmawii to take the dao for him. The victim and the accused went apart from him and Lallenmawii. On reaching the victim and the accused, they found the victim s dress was completely wet and on his enquiry, the accused replied him that the victim got toppled down. The victim remained silent but she was weeping requesting him to take her home. On the way home the victim told them that the accused caused loss of her virginity. In cross-examination this witness stated that he did not hear any shout from the victim and he did not know whether the accused committed rape on the victim. He also stated that he did not know whether the victim had love affair with the accused.

4 6. One Ms. Lallenmawii, who accompanied the team, was examined as P.W.3. She deposed in a similar manner corroborating the evidence of P.W.2. She stated clearly that the victim girl asked them to take her home and while they were proceeding home on the way, the victim girl told them that the accused caused loss of her virginity. 7. The medical officer, who medically examined the victim, was examined as P.W.8. He testified that on the victim was brought to him by police and he examined her at around pm on the same date. He stated that he found blood stain on her undergarments and there was fresh hymen tears at 5 & 6 oclook position with blood oozing in the veginal cavity. He also found blood oozing from the torn hymen and collection of blood around 5 ml in the veginal cavity. He prepared a medical report Ext.-IV. He proved the same and proved his signature Ext-IV(a). In cross examination he stated that there was no injury on the other parts of the body and there was no seminal stains on the body of the victim and her cloth. He also stated that there was no age determination of the victim since there was no facility for it. However, he suggested for ossification test at lunglie. But he stated that he did not know whether the test was done or not. He denied the suggestion that there was no blood stains on her undergarments and no tear on her hymen. 8. In his statement recorded under Section 313 Cr.P.C.,the accused admitted all the facts established in the evidence but he denied that he committed rape forcefully on the prosecutrix. He rather stated that he had sex with her on consent and he did not force her. He also stated that he knew nothing about her age but he knew that

5 she, as a young lady, liked him. He further stated that the prosecutrix got married after 2/3 months but got divorced. 9. The evidence of the victim, P.W.5 is found to be consistent, clear and true inasmuch as she immediately disclosed the incident of rape before P.Ws 2 & 3 who went out for collecting crabs together with the victim and the accused on the same day. Her evidence has been corroborated by the aforesaid PWs 2 and 3. Moreover, the medical officer, PW-8, also corroborated the evidence of the victim that there was sexual intercourse due to which there was fresh tear on her vergina, oozing of blood and blood stain on the under garments of the victim. The medical officer truthfully stated that age of the victim could not be determined for want of necessary facilities at the medical centre where he was working. He suggested for ossification test in the Lunglei Hospital. On the face of the statement of the accused u/s 313 Cr.P.C. there is no denial of the fact that the sexual intercourse between the accused and the prosecutrix took place. The only question requiring consideration and determination is that whether the accused used force and committed rape upon the prosecutrix. Except her own evidence, there is no evidence that the victim shouted or cried for help when the accused caught her from behind and removed her clothes including underwear and laid her on the ground for committing the alleged rape or she resisted the accused. The evidence of the medical officer is that there was no other injury, except on the private parts, on the person of the victim. On the basis of such evidence two views are possible. One view is that she was a consenting party and the sexual intercourse took place with her consent. The other view is that she was laid on the ground by the accused without giving her chance to shout or cry for help or resist or even if she cried for help, it was not heard by any other person, including PWs 2 and 3 as the alleged

6 incident took place after the dusk at an isolated place. Of course the prosecutrix, in her evidence stated that she shouted for help. At the same time she clearly stated that the accused forced her down and put his hand on her mouth and forcefully held her neck. This piece of evidence proved that the accused used force to enjoy sex against her will. Such forceful act for enjoying sex without the consent of the girl can be brought easily under the fold of rape within the meaning of section 376 IPC. 10. If it is assumed that the prosecutrix was a consenting party, the court has to consider the age of the girl (prosecutrix) at the time of occurrence. The doctor, as stated earlier, offered no opinion as regards her age. The accused also had no idea/knowledge about the age of the prosecutrix. The prosecution and the learned trial court, for determination of her age, depended on Ext. P/III, i.e. the age certificate. The defence has questioned the admissibility of the Photostat copy of the birth certificate produced and proved by the prosecution. It must be noted that the defence raised no objection at the time when the prosecution produced and proved the same during trial. It was accepted and marked as Ext.P/III. The law of evidence is that when a document has been proved and exhibited unopposed by the other party, the admissibility of such document cannot be questioned. The father of the prosecutrix who was examined as P.W.1 deposed that his victim daughter was 14 years at the time of occurrence. The victim herself stated that she was born on and she was studying in class-vii at the time when she deposed before the court. It follows that if her age is calculated from the date of birth i.e as per birth certificate Ext.P/III, her age she would be around 14 ½ years on the date of occurrence i.e If the age of the girl is taken in the higher side and in the lower side

7 by one year, she would be around 15 ½ years on the date of alleged occurrence. In any case, the prosecutrix was below 16 years of age at the time of alleged occurrence. She was a minor and she was yet to attain the age of consent at the time of alleged occurrence. Even assuming that the girl consented to sexual intercourse with the accused it is of no help to him inasmuch as under the provision of section 375 IPC the accused petitioner cannot escape from being held guilty and punished u/s 376 IPC. Accordingly, the conviction of the accused petitioner u/s 376 IPC is liable to be upheld and it is so upheld hereby. In regard to sentence awarded by the learned trial court, it must be said that the learned trial court committed error in law by awarding rigorous imprisonment for three years only in contravention of the minimum 7 (seven) years punishment/sentence prescribed for an accused convicted under Section 376 IPC. 11. The trial court may impose a sentence of imprisonment for a term less than seven years for adequate and special reason to be mentioned in the judgment. In the impugned judgment there is no such adequate or special reason assigned by the learned trial court for imposing three years rigorous imprisonment in place of minimum imprisonment of seven years. In the proviso to section 376 IPC the terms adequate and special reason have not been explained. The court has to consider the totality of the facts and circumstances of the case under which the offence of rape was committed. In the present case the prosecutrix never complained that she was taken out of her residence by inducement or conspiracy to commit the offence of rape. The boy was known to her well and she voluntarily accompanied him along with two other young pairs for collecting crabs and prawns. She even did not mind to go with the victim beyond the sight of the other friends till the accused enjoyed sex with her, which she did not like,

8 and may be got disappointed with the unexpected bad conduct of the accused. The prosecutrix was short of hardly six months to attain majority and consenting age within the meaning of clause Sixthly to Section 375 IPC. The said provision does not provide protection to the convict petitioner, but on fact, the prosecutrix was a consenting party. The convict spoke the truth and wholly the truth only when he deposed that he had sexual intercourse with her on mutual consent without using force. He had no intention to use force and if he had such intention, he would not have left the dao which he was carrying, somewhere and asked PWs 2 and 3 to collect it for him. The convict, as per evidence on record, is a casual labour, aged about 27 years at the time of occurrence. Being in the prime of his life he happened to indulge himself in sexual misadventure with the prosecutrix, who was atleast not opposed to relationship with him but was averse to sexual intercourse with him. There is no evidence that this young convict had any criminal background before he was convicted in this case. Although there is no supporting evidence on record, the convict stated that the prosecutrix got married to some other person just after two years of the incident and got divorced. The above are the mitigating circumstances attracting attention of the court for taking a second thought on awarding lesser punishment from the minimum prescribed seven years imprisonment to five years. No aggravating circumstances is available against the convict and, therefore, I am of the considered view that the ends of justice would be fairly met if the imprisonment of R.I. for three years as imposed on the convict by the learned trial court is enhanced to the period of 5(five) years, that is lesser by 2(two) years of the minimum period of seven years imprisonment prescribed under Section 376 IPC. Accordingly, the convict is awarded sentence of R.I. for 5(five) years u/s 376 IPC. The criminal revision petition is rejected upholding the conviction as

9 recorded by the learned trial court with modification and enhancement in the sentence as indicated above. 12. Return the LCR forthwith. Nandi JUDGE

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