IN THE COURT OF DISTRICT & SESSIONS JUDGE; MIZORAM, AIZAWL. BEFORE Mrs. Lucy Lalrinthari District & Sessions Judge Aizawl Judicial District, Aizawl

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1 1 IN THE COURT OF DISTRICT & SESSIONS JUDGE; MIZORAM, AIZAWL BEFORE Mrs. Lucy Lalrinthari District & Sessions Judge Aizawl Judicial District, Aizawl Sessions Case No.51 of 2014; Criminal Trial No.838/2014 u/s 376(2)(I) IPC Ref: Khawzawl PS C/No.27/2014 dt State of Mizoram Vrs Lallawmkima S/o Thangsena of Keifang, Saitual - Accused PRESENT For the Prosecution : Mrs. K.Lalremruati, Ld.Addl.PP & Mr.H.Lalmuankima, Ld.Addl.PP. For the Accused : Mr. W. Sam Joseph, Ld. Counsel Date of Hearing : Date of Judgment : JUDGMENT & ORDER 1. The accused Lallawmkima S/o Thangsena of Keifang, Saitual has been facing trial in connection with Sessions Case No.51 of 2014; Criminal Trial No.838/2014 u/s 376(2)(I) IPC Ref: Khawzawl PS C/No.27/2014 dt and the court deliver the following judgment. 2. The victim in the instant case is a girl of 8 years only, hence she is referred to as X only. 3. The prosecution story of the case in brief is that on , a written FIR was received from Lalhmingmawia (40) S/o JH. Hauthanga of Kawnzar Veng, Khawzawl, stating Page 1 of 18

2 2 that, on his daughter X (8 yrs) was caught by unknown person from below their residence, near Kawnzar Field and raped at the out skirt of Khawzawl Kawnzar Veng at about 1:30 pm and the culprit fled away to the jungle to avoid arrest. Hence, Khawzawl PS Case No. 27/2014 Dt U/s 376(2)(i) IPC was registered and duly investigated into. The case was endorsed to Remlalliana Hnamte, DSP (Probationary) and he took up investigation. 4. During the course of investigation, the case I/O DSP Remlalliana Hnamte visited the place of occurrence and examined thoroughly. After thorough investigation, unknown accused was searched around the area of the PO by the case I/O party and local people under the supervision of SDPO, Khawzawl Sub-Division. The unknown culprit left his right side rubber-chappal (red color) at the PO and the said chappal and under-pant of the victim girl was recovered and collected from the PO and seized in presence of witnesses. The victim girl Lalruatfeli verbally stated that, the culprit who had caught her and carry her wear blue T-shirt and dark colored tract pant and chappal while committing the crime. The unknown culprit Lallawmkima (22) S/o Thangsena Keifang P/A Lawipu, Aizawl District was detected near by the PO area. He wears dark colored tract pant without wearing shirt and bare foot while he was apprehended. He had hided his left side chappal and his T-shirt in the jungle below the place where he was apprehended and were recovered and seized in presence of witnesses. He was apprehended by local people and tried to assault him at Field No-2, but he was protected and evacuated to Champhai PS through Khawzawl PS with the help of SDPO, Khawzawl Dub-Division and Proby./Dy. SP Remlalliana and party. Before sending to Champhai the accused person was brought to Khawzawl P.S at that time the victim girl Lalruatfeli who had been present at the PS verified him as he was the real culprit. He was arrested and interrogated thoroughly at Champhai PS and also recorded his statement in separate paper and he admitted his guilt and disclosed the fact that he had actually involved into the said crime. He had stated that, he had tried to used sexual intercourse with the said victim X (8yrs) by laying her on the ground, he had touch her private parts by his penis, and also tried to penetrate his penis but could not fully penetrated. All available witnesses as well as seizure witnesses were examined and their statements were recorded. The victim girl X (8 yrs) D/o Lalhmingmawia, Khawzawl, Kawnzar Veng and the accused Lallawmkima (22) S/o Thangsena Keifang P/A Lawipu, Aizawl District were sent to M.O Community Health Centre, Khawzawl and District Hospital, Champhai for medical examination to ascertain the actual commission of the said crime, and the Medical examination report of the victim girl was received. The medical report of the MO Page 2 of 18

3 3 stated that, the victim girl got a pain on her head (temporal region) right side as the victim was slapped 2 times by the rapist. There is no other external injury on her physical body, except there is abrasion on labia majora (L) side. Multiple bruises are seen on both sides of labia majora. Under garment for semen/seminal stain absent. Hymen is intact. As the case I/O was transferred to other place another case I/O S.I. J.H.Sanghmingthanga took over as case I/O. The accused Lallawmkima (22) S/o Thangsena Keifang P/A Lawipu, Aizawl District, was sent to CJM, Champhai for judicial remand. Hence, a prima facie case U/s 376(2)(i) IPC r/w The Protection of Children from Sexual Offence Act, 2012 (Amendment No. 32 of 2012, Chapter II (C) Act. 8) is found well established against the arrested Lallawmkima (22) S/o Thangsena Keifang P/A Lawipu, Aizawl District by the second case I/O. Hence the Case I/O S.I. JH. Sanghmingthanga submitted charge sheet accordingly. 5. After committal of case to this court my learned predecessor framed charged u/s 376(2)(i) IPC against the accused Lallawmkima which was read over and explained to the accused in his own language to which the accused pleaded not guilty and claimed for trial. 6. Trial proceeds. Section 376(2)(i) of IPC reads, Whoever commits rape on a woman when she is under sixteen year of age, shall be punished with rigorous for a term which shall not be less than ten years but which may extent to imprisonment for life which shall mean the remainder of that persons natural life and shall also be liable to fine. 7. In order to establish the guilt of the accused under the above section, the prosecution examined the following witnesses. PW No.1 Lalhmingmawia stated that on while he was in the jungle fighting forest fire he received information over telephone that his daughter Lalruatfeli had met with a sexual assault and that he was to proceed to his home immediately. He immediately returned back to their house. When he reached his home a number of people were already gathered in his house in connection with the present incident. His daughter was also presence at home. He was advised to immediately file report with the police and to take the child for medical examination. He proceeded to Khawzawl Police Station and filed FIR. Thereafter the child was also taken for medical examination. It was informed to him by the victim that she was taken by the accused a little bit away from their house towards the jungle and there accused punched her twice and after Page 3 of 18

4 4 the second punch she had lost consciousness. The time of incident was about 1:30 PM in the afternoon. The elder brother of the victim on being informed by the friend of victim about her being taken away towards jungle reportedly with one man proceeded towards the place of occurrence with Dou and the accused allegedly fled away. The accused was allegedly apprehended in the evening and identified by his lost slipper by the public. While he was in the police station the victim was brought to the police lock up and he also identified the accused. His statement was recorded by the police. He also accompanied the police personals during their investigation and also visited PO. Exbt. P-1 is the FIR submitted by him and Exbt. P-1-A is his signature. On Cross-examination PW No.1 had stated that he accompanied the victim to the medical officer but was not present during the medical examination. The victim was not admitted for further medical treatment. He is not acquainted with the accused earlier. The victim had complaint of burning sensation during urinating on the following day and the day after the incident however was not immediately taken to Doctor. The victim/his daughter was later taken to the Doctor for medical examination but there was not complaint. The PO is not visible from his house which is the last house in the locality since it is on the turn of the road. The PO would be about Meters. His daughter s friend Sangsangi reportedly informed that the victim was taken away by one Vai (non-mizo). It is not a fact that the accused is falsely implicated due to the mob who apprehended him. 7. PW No.2 Lalruatfeli had stated that she know the accused who is produced from judicial custody and present in the court this day. On the date of incident the accused carried her away from the field where she was playing with her friend Sangsangi. The accused was not known to her earlier. He was alone when he abducted her. She cried out but he forcibly took her toward the road junction which is below their house. The accused punched her twice on the head she lost consciousness. When she regain consciousness the accused was no longer presence her elder brother Lalruatmawia was present near her. Her brother went in search of the alleged accused and she returned home to their house. Her uncle Mamawia questioned her about the incident at this time her parents were not at home. She was feeling pain on the back of her body. There was not injury apparent in any other part of her body other than the punch to her head and the pain on her back side. She was taken to the hospital for medical examination. No one else was present during the medical examination as far as she know. She was then taken to the police station. She saw the accused when he was brought to the PS. Page 4 of 18

5 5 On Cross-examination PW No.2 had stated that the accused was brought to the PS by police personnel. The accused was alone when he was at the PS. She was at the PS with her father when the accused was brought before her. Since she was afraid her father held her and took her upstairs. When the accused abducted her he run up and carried her on his shoulder. Her friend Sangsangi run away and said that she would call her elder brother. The accused was wearing T-shirt and pant. The accused was wearing a green slipper. He was not carrying any bag at the time of incident. When she lost consciousness she did not know what action the accused or anybody took on her. There was no blood oozing or stains of any part of my body. The medical officer examined her private part. There was burning sensation whenever she passed urine three or four days. It is not a fact that the person who is produced in court today is not the person who carried her away and abducted her. It is not a fact that the mob and her father made her to identify the accused. The accused was not known to her before the incident she had never seen him earlier. It is not a fact that she deposed falsely this day. 8. PW No. 3 Lalruatmawia had identified the accused who is present in Court this day. He recognized him from the date of incident. They are seven brothers and sisters. He is the eldest. The victim Lalruatfeli is his younger sister who is the fourth issue. On the date of incident, he was at home and his parents were washing clothes in the stream with his younger sister. His parents came to put the washed clothes at home and went again. His sister had remained back and was allegedly playing with her friend Sangsangi alias Ramnunsangi. While he was at home, Sangsangi shouted out and came running to their house and reported that one Vai had allegedly carried away his younger sister, Lalruatfeli. He immediately rushed out carrying a Dao which was at the doorsteps of their house. He rushed down towards the field where his sister was allegedly carried away. At the junction of the road leading to the field and graveyard, he discovered the pair of chappal belonging to his sister. He recognized the chappal as belonging to his sister. He proceeded towards the graveyard and saw his sister standing in the middle of the road and reported that she was in pain. He instructed her to return back to their house. He proceeded for a short distance and returned back. He met two girls namely, Ramhlupuii and Lalhruaitluangi, who were friends of his sister and together they again proceeded towards the graveyard. On the way, they discovered one side of a chappal (right side) which they recovered and the girls carried it. They met the accused coming up and he enquired whether they had seen a person coming up. When they replied in the negative, the accused returned back towards the graveyard. He also returned towards their house along with the two girls. On the way, Page 5 of 18

6 6 the girls reported that the accused they had met was only wearing one side of chappal. On the way back, they met with young men from their locality who had come to enquire about the matter. He reported that they suspected a person they had met to be the culprit as he was allegedly wearing only one chappal. He also reported the description of clothes (Blue colour) worn by the person they met. He accompanied the young men from their locality to search for the culprit. Since they did not find anybody, he returned home. Later, one of his friends came to their house and reported that the culprit had been apprehended and was at the field. He went to the field and saw that the culprit had been apprehended. He identified him as the person they had met earlier who was wearing the same description of clothes. Before the crowd had apprehended the culprit, he had taken off his clothes. His clothes were discovered later and he was made to wear his clothes. He brought his younger sister (victim) to the field to identify the person who was apprehended. His younger sister identified the person apprehended as the culprit. He was present when his sister identified the culprit. The accused was taken by the Police from the field. After this, he returned home and his sister was taken towards the hospital at Khawzawl for medical examination along with his father. His sister (victim) did not report the details of the incident. On Cross-examination PW No.3 had stated that when Sangsangi reported the matter to him, she reported that his sister was carried away by Vai (Non-Mizo). He is residing at Kawnzar Veng at Khawzawl. He did not know the residence of the accused and the name of his father. From his appearance, he could see that he was not a Vai (Non-Mizo). He did not recollect the colour of the chapal discovered by him and the type of chappal. He think it was rubber chappal. The two girls who accompanied him to search the culprit were not present when his sister was reportedly carried away by a Vai (Non-Mizo). He did not personally observe whether the person that he and the two girls met was wearing only one chappal. He did not recollect whether the person they met was wearing one chappal or was without any chappals. He was not present when the accused was apprehended. He did not know the residence of the accused. He had not seen the accused prior to the incident at their village. It is not a fact that the accused present in Court this day is not the person that he and two girls had met on the way on the date of incident. It is not a fact that he saw the accused for the first time only after he was apprehended by the villagers. It is not a fact that the person apprehended by the villagers is not the person he had met while he was searching for the culprit along with the two girls. When the accused was apprehended by the villagers, he was summoned. Thereafter, he went to call his sister to identify the culprit. The slipper that they had Page 6 of 18

7 7 recovered was handed over to the villagers by him. The Police had already arrived at the field when his sister was escorted by him to identify the culprit. He saw that the villagers were assaulting the accused person and he also felt pity for him. He did not know the exact number of police officials who had arrived, there were more than two/three police personnel. It is not a fact that the culprit who was apprehended was falsely implicated in the present case. His statement was recorded at their home. He did not know where the statement of the victim was recorded. No TIP was conducted as far as his knowledge. It is not a fact that the person who carried away his sister is a non-mizo and the accused in Court this day is falsely implicated. 9. PW No. 4 Lalnunsangi had identified the accused who is present in Court this day. The victim is her friend. On the day of incident she along with the victim and other friends had gone to the lake belonging to Pu Sanga to wash clothes. After washing clothes on the way back she and the victim went separately in search of insects and they met the accused who enquired where the jhum hut was located. They informed him to proceed down the hill and go to JNV where he could enquire further. The accused told them to accompany him and show him the jhum hut. When they refused the accused suddenly caught hold of the victim and took her down the hill on his shoulder. She immediately rushed home and informed Ruatmawia, elder brother of the victim. Ruatmawia instantly rushed down the hill with a dao. She went to her uncle who was residing above the house of the victim. Later when the accused was apprehended she also went to the field where he was brought. She recognized him as the person who had carried away the victim. On Cross-examination PW No. 4 had stated that when she reported the matter she informed that the culprit looked/appeared to resemble a Vai(non-mizo). The accused who is produced in Court this day is not a non-mizo. When the culprit was apprehended she was taken by some people to the field in a car to identify him. She did not see the culprit before this incident. There was no other person resembling the culprit on the day of incident. She have never seen any other person resembling the accused in their village. It is not a fact that the accused is not the person who had carried away the victim. The accused was wearing a full pant and the colour of the shirt was greenish. She did not recollect the colour of the pant. She did not recollect whether the accused was putting on any shoes or slipper on that day. There were police in uniform present at the field when the culprit was apprehended. He was not handcuffed nor tied. He appeared to have been assaulted by the public. He was also assaulted when she was present. Page 7 of 18

8 8 (The witness although of tender age was able to depose coherently in detail to questions put before her.) 10. PW No. 8 John Lalrinliana had stated that On at about 2:00 PM he heard that one unknown non-mizo had committed rape upon one mizo minor girl and he run down to the Kawnzar field No.2. He just before reaching the said field they found girls under-pant red in colour they also found the other pair of a slipper suspected to be belonging to the accused. Thereafter the police arrived at the PO and seized the said under-pant and said slipper. The people gather together search for the accused and he is also one of them. After searching for a long time they could not found the culprit. Then they heard that the accused was hiding at JNV School in a corner as if he was one of the students there. But the students did not recognize him as one of their own. Hearing this rumor the police along with local leaders went to JNV School and arrested the said culprit. After the accused was arrested he was taken to police station. There they have gone to have a look at the culprit; the Thana/PS where they kept the culprit was a bit dark so he could not clearly identify the accused.exbt-p-2 is the seizure memo in respect of under-pant and slipper Exbt-P-2-A is his signature. Exbt-M-1 are the material exhibits. On Cross-examination PW No. 8 had stated that it is a fact that the victim s friends told that the person who took the victim was looking like a non-mizo. It is a fact that he cannot identify the accused person who is standing in the Court this day and he also he cannot say as to whether the person who was apprehended on that day was the same person standing in the Court. As far as he know one police was name Remlalliana recovered the slipper and the under-pant from the spot near the field. 1. PW No. 10 Lianzampuia had stated that he know the accused person produced in Court this day. On the night of at about 7:00 PM when he was at the Champhai PS on duty the case I/O seized one blue colour T-Shirt and one blue colour Track pants wore by the accused and the case I/O prepared seizure memo and he became as one of the seizure witnesses, and he put his signature in the seizure memo. Exbt-P-3 is seizure memo Exbt-P-3-A is his signature. Exbt-M-2 are the seized articles mentioned in the seizure memo and the same are produced before the Court this day. On Cross-examination PW No. 10 had stated that it is a fact that the seizure memo was prepared in the Champhai PS. He saw the seized articles placed on the table. When he saw the accused in the field he saw the accused wearing the seized articles. But when it was seized he found that on Page 8 of 18

9 9 the table in the Champhai PS. He has not seen the accused person before apprehended on When he reached the field he found the accused person in the custody of about 20 persons of Khawzawl village. As he did not know English he did not go to the contents of Exbt-P-3. Police personnel were afraid of the villagers of Khawzawl who are trying to manhandle and took the accused straight to Champhai PS. It is not a fact that he did not see the accused wearing the blue T-shirt and one colour track pants on It is not a fact the seized articles was not the property of the accused. 12. PW No. 11 C. Lalnghinglova had stated he know the accused person in this case. On the night of , the khawzawl police seizes one blue colour T-shirt and one blue colour track pants from the possession of the accused Lallawmkima. While he was the police prepared seizure memo and he put his signature in the seizure memo as one of the seizure witnesses. Exbt. P-3 is the seizure memo Exbt. P-3(B) is his signature Exbt. M-2 are the seized articles as mentioned above and the same are produced before the court this day and he have seen authenticated the same. On Cross-examination PW No. 11 had stated that it is not a fact that while the Exbt. M-2 was seized Pu Lianzampuia was not present. It is a fact that the Exbt. M-2 was seized the accused person worn the seized articles. 13. PW No. 12 Remlalliana Hnamte had stated that he know the accused Lallawmkima. During the year 2014 he was posted at Khawzawl PS as DSP (probationer). On , he was informed by SDPO Zothlamuana that one non-mizo person abducted one minor girl from Khawzawl village and asked him to take steps. He conducted pre steps investigation in the case. He along with three police personnel s went to the PO located at JNV School field. When they reached the PO some local persons were also present and they are searching for the culprit. After half an hour as they cannot locate the culprit and they went towards main road and searched for him and at that time SDPO contacted him and informed him that the culprit was apprehended by the local person and asked him to immediately return to JNV School field. They returned back to the school field and took the accused to PS for his safe custody and formally arrested him. He along with other police personnel s again went back to the PO and at the PO the complainant show them the panty of the victim and right side of the chappal and he seized the said articles in the presence of witnesses. He also seized the left side of the chappal of the accused at the PO (JNV School field). The wearing apparel of the accused was also seized at the Thana. The complainant and the victim submitted FIR to Page 9 of 18

10 10 the PS on the same day. On the night of the incident, the accused was taken to Champhai PS for his safe custody. On the next day, he visited the house of the complainant and recorded the statement of the complainant and the victim and other witnesses. He also seized the birth certificate of the victim. He also visited the house of the accused and at the house of the accused they saw one knife and one catapult and seized the same. He handed over the case to OC for further investigation. Exbt.P-2 is the seizure memo for the seizure of one under-pant and one chappal right side and Exbt.P-2-B is his signature. Exbt.P-3 is the seizure memo for the seizure of one blur color T-shirt and one blue color track pant and Exbt.P-6 is the seizure memo for the seizure of one red chappal left side. Exbt.P-6-B is his signature. Exbt.P-7 is the seizure memo of one catapult and one knife. Exbt.P-7-A is his signature. Exbt.P-8 is the seizure memo of the birth certificate. Exbt.P-8-A is his signature. Exbt.M-1 is the seized articles. On Cross-examination PW No. 12 had stated that it is a fact that he did not conduct Test Identification Parade (TIP). It is a fact that the victim did not know the accused before the incident. As he is not the IO of this case he did not conduct the TIP. It is a fact that the accused was detained by local people in the school field. When he got the telephone call informing that the accused was apprehended and detained by the local people and within ten minutes of receiving the call, he reached the place where the accused was detained. He did not know as to how long the accused was detained by the local people before he reached the spot. He was accompanied by three other constables whose names he cannot state this day. He did not know anything about the involvement of the accused in connection with any other criminal case. The accused during interrogation stated sometimes that he was from Lawipu and other times he said he was from Keifang. He did not ascertain as to the real place of residence of the accused. As soon as the telephonic information was received by the OC from someone, OC made the GD entry and SDPO, Khawzawl detailed him to take up preliminary enquiry. On reaching the spot he found the accused in the custody of local people and he took the accused from the local people and proceeded to the PS. Before he could reach the PS with the accused, the complainant and the victim were already present in the Thana and the complainant submitted FIR. In order to avoid law and order situation, he was taken to Champhai for safe custody on that night. OC, Khawzawl took up the investigation. Before the OC took up the investigation he did some part of the enquiry/investigation. It is not a fact that the victim could not identify the accused. He cannot recollect whether the accused was handcuff or not when he was taken to the PS from the place where he was taken over by him. The FIR was submitted by the father of the victim. He recovered the seized articles Page 10 of 18

11 11 from different locations. It is a fact that the seized articles in respect of Exbt.-2,6,7 and 8 were not recovered from the accused. It is not a fact that the seized articles in respect of Exbt.P-3 were not recovered from the accused. It is not a fact that the accused was wrongly implicated in this case because he was apprehended by the local people. 14. PW No. 13 Dr. Thanmawii had stated that she did not know the accused Lallawmkima as he is not produced before her. During the year 2014 she was posted at Khawzawl CHC as Medical Officer. On , she received requisition from O/C Khawzawl PS for examination of rape victim aged about 8 yrs old. Accordingly, she conducted examination and she has recorded all her findings at her medical examination report. Exbt.P-5 is her medical examination report Exbt.P-5-A is her signature. Exhibit P-5 contains finding of Pw 13 which is abrasion on labia majora (L) side, multiple bruises seen on both sides of labia minora. On Cross-examination PW No. 13 had stated that it is a fact that though the victim stated she was suffering from pain on head (temporal region) side as the victim was slapped 2 times by the rapist, she did not find any external marks or swelling or redness around the region where the victim was complaining of pain. She conducted the examination at 3:10 pm on She examined the victim after receiving requisition from the police. She examined by touching the portions of the head where the victim complained of pain. She did not find any kind of swelling, laceration or contusion on body around the temporal region. By temporal region she mean the right side of the head. In her opinion such paining would continue for a period of 1-2 days. It is a fact that specifically she cannot give any opinion regarding the age of the injury. It is a fact that according to her this type of injuries could have occurred 1-3 hours before examination. Since she conducted the examination long back it is not possible for her to exactly say as to whether the victim complained of pain while she was examining her. It is a fact that the injury which was complained by the victim around the temporal region could have been caused by banging her head on any substance. It is a fact that she took vaginal swat for presence of semen examination by the Laboratory Technician. She received the report from the Laboratory Technician as per the record they did not find any semen in the vaginal swat. The injury such she mentioned under column 5(c) could have been caused within 1-3 hour before the examination. It is not a fact that the injuries which she found as mentioned in the previous column 5(c) could be caused by scratching. It is not a fact that she gave her report relying on the statement made by the victim and the relatives and not on the basis of her examination. Page 11 of 18

12 PW No. 14 JH. Sanghmingthanga had stated that he know the accused Lallawmkima. During the year 2014 he was posted at Khawzawl PS as OC. On an FIR was received from Lalhmingmawia S/o JH Hauthanga R/o Kawnzar Veng, Khawzawl with the effect that on his daughter aged about 8 yrs old was caught by one unknown person from below their resident near Kawnzar field and raped her at the outskirt of Khawzawl, Kawnzar veng at about 1:30 pm and the culprit fled away in the jungle to avoid arrest. Hence, Khawzawl PS C/No.27/14 dt u/s 376(2)(i) IPC was registered against the accused. The case was endorsed to Remlalliana Hnamte, DSP (Probationary). The I/O investigated the case. However, after sometimes before he completes the investigation he was transferred and handed over the case to him for further investigation. On received of the charge sheet he perused the material on record and he sent the accused for medical examination to clarify whether he was fit to be put in judicial custody or not. He also interrogated the accused and recorded his statement. He recorded the statement of witnesses, PC. Rokhuma S/o Thangzama(L), Kawnzarveng, Khawzawl, R.Lalmuansanga S/o Hrangchungnunga, Kawnzarveng, Khawzawl and the complainant. He found prima facie case well established against the accused u/s 376(2)(i) IPC and he submitted charge sheet before the court. Exbt.P-4 is the charge sheet submitted by him and Exbt.P-4-A is his signature. On Cross-examination PW No. 14 had stated that it is a fact that the accused injuries on his body due to manhandling by the general public before he was apprehended by the police. It is a fact that he went through the medical report and he found that the hymen of the victim was intact. It is not a fact that there was no prima facie case against the accused on the basis of the materials available on the record and the accused was falsely implicated in this case. 16. Examination of Accused u/s 313 Cr.P.C.: Q1. The evidence against you is that on you have committed rape upon minor girl 8 yrs old near JNV School, Khawzawl. What do you say? Ans: No. Q2. The evidence against you is that on this day you met victim 8 yrs old and her friend Sangsangi near JNV School. What do you say? Ans: Yes, I met them. Q3. Then you said to them Please show me where JNV School is and you carry one of them forcibly. What do you say? Page 12 of 18

13 13 And: Yes, I carried her down. Q4. Then after going for a further step, you slap at the head of the victim girl until she is unconscious. What do you say? Ans: No, I did not do it. Q5. When the girl regains consciousness she saw that you had undressed her, and committed rape upon her. What do you say? Ans: I did not undress her. Q6. The girl s parents along with other people came and apprehended you. What do you say? Ans: Yes, it was true. Q7. When the victim was brought before Medical Officer, he found many bruising and injuries on her genital area. What do you say? Ans: I was too much drunk and I did not remember whatever I had done to her. Q8. The victim girl was very much afraid of you, when you were apprehended by local people and brought before the victim girl? What do you say? Ans: I do not remember. Q9. Do you want to adduce defence evidence? Ans: No, I do not remember anything except when I was brought before Khawzawl PS. Q10. Do you have any other thing to say before the court? Ans: No. 17. DISCUSSIONS, DECISIONS AND REASONS THEREOF In the instant case the prosecution version is that the accused abducted the victim and committed rape upon the victim. The defence version is that the victim loss consciousness and could not tell what the accused did to her, and the accused is not fully identified as the case I/O did not conduct Test Identification Parade (TIP). However, the accused himself in his examination under section 313 of Cr.P.C did not deny that he carried away the victim but he denied having sexual assault by saying he was quite drunk and did not remember whatever he did to the victim girl. Hence, the defence did not have any point to make his defence as he was claiming ignorance due to drunkenness. The prosecution evidence from Pw 2 victim is that the accused carried her away from the field where she was playing with her friend Sangsangi. The accused was alone when he abducted her. She cried out but he forcibly took her toward the road junction which is below their house. The accused punched her twice on the head she lost consciousness. When she Page 13 of 18

14 14 regain consciousness the accused was no longer presence her elder brother Lalruatmawia was present near her. When the accused abducted her the accused was wearing T-shirt and pant. The accused was wearing a green slipper. He was not carrying any bag at the time of incident. When she lost consciousness she did not know what action the accused or anybody took on her. There was burning sensation whenever she passed urine three or four days. PW No 2 evidence is corroborated by the evidence of PW 3. Pw 3 stated that as soon as he was informed that pw 2 was abducted, he caught hold of a Dao and ran towards where pw 2 was taken away. On the way he discovered the pair of chappal belonging to his sister. He recognized the chappal as belonging to his sister. He proceeded towards the graveyard and saw his sister standing in the middle of the road and reported that she was in pain. He instructed her to return back to their house. He proceeded for a short distance and returned back. He met two girls namely, Ramhlupuii and Lalhruaitluangi, who were friends of his sister and together they again proceeded towards the graveyard. On the way, they discovered one side of a chappal (right side) which they recovered and the girls carried it. They met the accused coming up and he enquired whether they had seen a person coming up. On the way, the girls recognized that the person they had met was only wearing one side of chapel, so they suspect that that man only wearing the other side of a chappal would be the culprit as they have found his other side of chapel earlier. He reported that they suspected a person they had met to be the culprit as he was allegedly wearing only one chappal. Later, one of his friends came to their house and reported that the culprit had been apprehended and was at the field. He went to the field and saw that the culprit had been apprehended. He identified him as the person they had met earlier who was wearing the same description of clothes. He brought his younger sister (victim) to the field to identify the person who was apprehended. His younger sister identified the person apprehended as the culprit. The evidence of PW no 3 identified the accused as the person who abducted victim, which is corroborated by the evidence of PW 2. Again Pw no 8 stated that the discovered the under-pant of pw 2 at the time of search. Had the accused been not having sexual assault upon the victim, there is no way why her under-pant been undressed from her body. Pw 13 who is the Medical doctor who examined the victim found abrasion on labia majora (L) side, multiple bruises seen on both sides of labia minora. These injuries found by the Pw 13 confirmed that the accused had sexual assault upon the victim. The accused Lallawmkima by causing injuries on the private part of victim as found by PW 13 had committed offence u/s 375(b) IPC which shall be punish u/s 376 (2) (i) of IPC. Needless to Page 14 of 18

15 15 say the accused abducted the victim by forcibly carrying her away while she was playing with her friend. By punching her twice in the head, the accused make the victim loss consciousness and thereby causing voluntary hurt to the victim. 18. The only defence available in the instant case is that the accused was too much drunk and do not remember what he had done to the victim. However, as the accused was too much drunk by his own will and the drink was not administered to him against his will, it will not be a fit case for exoneration and it will not be sufficient defence for him. Hence, from all the evidences as discussed above, I found the prosecution is able to prove the guilt of the accused u/s 376(2)(i) IPC beyond reasonable doubt. The prosecution evidence that the accused carried the victim girl away forcibly to the graveyard and there caused her injuries in her private part and caused unconscious to the victim girl is not rebutted by the defence. The accused himself did not deny he carried away the victim girl to the grave yard but simply stated whatever he had done he did not remember. Hence, I am convinced that the injuries sustained by the victim girl are caused by the accused. He undressed her underpant and committed injuries on her private part while trying to commit rape upon her. As the definition of rape u/s 375 (b) IPC includes insertion of any object to any extent into the vagina hymen rupture is not required to proven a case of rape. Having found the accused guilty u/s 376(2)(i) IPC I therefore convicted him accordingly. 19. On the question of sentence as per section 235(2) of Cr.P.C, I heard the accused as well as the prosecution. The accused stated that he had acute problems of stomach and could not eat food. And he had nobody to visit him in the jail. However, the ld. P.P. Mrs. K.Lalremruati submitted that his guilt is proved by the prosecution and he had no sufficient reason to show leniency to him by the court and prayed for maximum punishment. 20. After hearing both parties on the question of sentence, I found that here is no reason why the curt should show leniency to him. However, regarding his health the Jail authorities are advised to take care of his health as permitted by the Rules. Accordingly I sentence the accused Lallawmkima to 10 yrs R.I u/s 376(2)(i) IPC as prescribed by the law. Detention period as UTP shall be set off. No fine is imposed upon him as he had no income. Seized article be destroyed. Page 15 of 18

16 16 Given under my hand and sealed of this court today 27 th day of October 2016 in the court hours. Give copy of this order to all concern. Sd/-LUCY LALRINTHARI District & Sessions Judge, Aizawl Judicial District, Aizawl, Mizoram. Memo No: /D&SJ(A)/2016 : Dated Aizawl the 27 th October, 2016 Copy to:- 1. The Special Superintendent, Central Jail Aizawl. 2. Lallawmkima C/o Mr. W. Sam Joseph, Advocate. 3. Mrs. K.Lalremruati, Ld. Addl.P.P. 4. DSP Prosecution. 5. O/C Khawzawl P/S. 6. In charge, Judicial Section. 7. Case record. 8. Guard file. PESHKAR Page 16 of 18

17 17 APPENDIX PROSECUTION EXHIBIT Exbt. P-1 FIR. Exbt. P-1-A - Signature of PW No.1. Exbt. P-2 Seizure memo of underpant and slipper. Exbt. P-2-A - Signature of PW No.8. Exbt. P-2-B - Signature of PW No.12. Exbt. P-3 Seizure memo of one blue color T-shirt and one blue color track pant. Exbt. P-3-A - Signature of PW No.10. Exbt. P-3(B) - Signature of PW No.11. Exbt. P-4 Charge sheet. Exbt. P-4-A - Signature of PW No.14. Exbt. P-5 Medical examination report. Exbt. P-5-A Signature of PW No.13. Exbt. P-6 Seizure memo for the seizure of one red chappal left side. Exbt. P-6-B Signature of PW No.12. Exbt. P-7 Seizure memo of one catapult and one knife. Exbt. P-7-A Signature of PW No.12. Exbt. P-8 Seizure memo of the birth certificate. Exbt. P-8-A Signature of PW No.12. Exbt. M-1 Material exhibits. Exbt. M-2 Seized articles. DEFENCE EXHIBIT- None Exhibit produced by witnesses - None Court Exhibit - None Prosecution witnesses : PW No.1 is Lalhmingmawia. PW No.2 is Lalruatfeli. PW No.3 is Lalruatmawia. PW No.4 is Lalnunsangi. PW No.8 is John Lalrinliana. Page 17 of 18

18 18 PW No.10 is Lianzampuia. PW No.11 is C. Lalnghinglova. PW No.12 is Remlalliana Hnamte. PW No.13 is Dr. Thanmawii. PW No.14 is JH Sanghmingthanga. DEFENCE WITNESSES - None COURT WITNESSES - None PESHKAR Page 18 of 18