Saturday, 27 August 2016

Non mentioning of place of incident while framing of charge whether fatal to prosecution case?

With regard to the appellant's counsel's submission that Section 212, Cr.P.C. was not followed as the place of the incident was not mentioned while framing charge against the appellant, I find that the same does not cause any prejudice to the appellant, inasmuch as, the appellant has not denied being in the residence of the victim girl at the time of the occurrence and as the appellant has himself admitted that he touched and played with the private parts of the six year old victim girl. This is clearly evident from the records.
IN THE HIGH COURT OF GAUHATI (AIZAWL BENCH)
Cri. A. No. 38 of 2015 (J)
Decided On: 09.05.2016
Appellants: Lalthatpuia
Vs.
Respondent: State of Mizoram and Ors.
Hon'ble Judges/Coram:Michael Zothankhuma, J.
Citation:2016 CRLJ 2740 Gauhati

1. Heard Mr. T. Lalnunsiama, Amicus Curiae for the appellant and Mrs. Linda L. Fambawl, Addl. Public Prosecutor for the respondents. The convict appellant has by way of this appeal challenged the Judgment and Order dated 05.02.2013 passed by the Additional Sessions Judge-I, Aizawl in Criminal Trial No. 256/2012 under Section 376(2)(f) IPC, wherein the appellant was convicted and sentenced to undergo Rigorous Imprisonment for a period of 10 (ten) years and to pay a fine of Rs. 5000/- i.d. R.I 6 (six) months.
2. The prosecution story of the case in brief is that on 16.4.2012 at 10:45 a.m. an FIR was lodged by Lalnuntluanga of Mualvum with the OC, Kawnpui PS to the effect that on 12/4/12 at 1 p.m. his niece, aged 6 years of Kawnpui Chhim Veng was raped by Lalthatpuia, 22 S/o. Sanghmingthanga of Kawnpui Chhim Veng, while her mother was not at home and requested to take necessary action. Hence, KPI PS C/No. 10/12 D/- 16/4/12 u/S. 376(2)(f), IPC was registered and duly investigated into it.
3. The Trial Court after recording the witnesses statements and having regard to the confessional statement and the 313, Cr.P.C. statement given by the appellant convicted him as stated above.
4. The appellant has challenged the impugned Judgment and Order dated 05.02.2013 on the following grounds:
1) That the Trial Court could not have convicted the appellant on the basis of the statement given under Section 313, Cr.P.C., inasmuch as, the appellant has not admitted to the question put forth by the Trial Court during the recording of his statement under Section 313, Cr.P.C.
2) That the appellant could not have been convicted for rape, inasmuch as, the appellant had admitted to the fact that he had touched the private parts of the victim girl (genital area) and that he had not inserted his penis into the victim girl's private parts.
3) That the evidence of PW1 (complainant) was recorded to the effect that "the alleged incident of rape" took place on 12.04.2004. Thus on the date of the alleged rape the victim girl could not have been born.
4) That the evidence of the mother of the victim girl is to the effect that she did not find any external injury on the victim girl and the private parts when the mother had checked her daughter. This evidence thus shows that no rape was committed.
5) That the evidence of the victim girl (PW3) is to the effect that at the time of the alleged rape, the younger brother of the victim girl was present. However, the victim girl's younger brother was not made prosecution witness and was not called in the Court. There was also no likelihood of any rape committed in the presence of the victim girl's younger brother.
6) That the medical report states that the torn hymen and the erythematous rashes that occurred in the whole of the inner side of the labia majora may or may not be due to rape.
7) That while framing charge under Section 376(2)(f), IPC against the appellant, the place of occurrence was not mentioned, which is in violation of Section 212, Cr.P.C.
8) That the appellant is having severe medical problem like irregular function of blood circulation in his leg. Thus, the appellant's case should be considered also on medical grounds.
5. The Addl. Public Prosecutor Mrs. Linda L. Fambawl submits that the appellant in his confessional statement given under Section 164, Cr.P.C. has not denied that he touched and played with the private parts of the victim girl. The Addl. Public Prosecutor also submits that the medical report clearly stated that the six years old victim girl's hymen was torn. She also submits that the evidence of the victim girl inspires confidence and in this regard she has relied upon the Apex Court decision given in Narender Kumar v. State (NCT of Delhi), reported in MANU/SC/0481/2012 : 2012 (7) SCC 171 : (AIR 2012 SC 2281).
6. The Addl. Public Prosecutor also submits that though the appellant in his examination under Section 313, Cr.P.C. has not given any answer when asked whether he played with the private parts of the victim girl and had sex with her, however, in answer to the next question whether he had left after the incident, the appellant had given the answer "Yes". The Addl. Public Prosecutor submits that though the statement made by the appellant in examination under Section 313, Cr.P.C. cannot be made the sole basis for convicting the appellant, the statement made under Section 313, Cr.P.C. can be considered in conjunction with other evidence adduced by the prosecution. The Addl. Public Prosecutor thus submits that the statement of the appellant under Section 313, Cr.P.C. and confessional statement, when read together with the evidence adduced by the prosecution witnesses goes to show that the appellant had committed rape upon the victim girl. In this respect the Addl. Public Prosecutor has relied upon the judgment of the Apex Court in Munna Kumar Upadhyay v. State of Andhra Pradesh, reported in MANU/SC/0524/2012 : 2012 (6) SCC 174 : (AIR 2012 SC 2470).
7. I have heard the learned counsel for the parties and on perusal of the Lower Court Records, I find that the Trial Court has convicted the appellant on the basis of the statement given by the victim girl that the appellant had penetrated her private parts and that the medical report corroborated the statement of the victim girl.
8. The appellant in his confessional statement under Section 164, Cr.P.C. had stated as follows:
"In connection with my present case, I did not have sex with the alleged victim. I did touch her to a certain extent. My semen was not collected for medical examination and it is therefore apparent that I did not have sex with her.
Q. 'I did not have sex with her but I did touch her to a certain extent.' Can you please elaborate on this statement?
Ans: Yes, I can. It means that I did not have sex with her but I did touch and play with her private part."
9. Thus, though the appellant had not denied that he had touched and played with the private part of the victim in his confessional statement, the appellant had refused to give any answer when asked whether he had played with the private part of the victim at their residence and even had sex with her at the time of examination under Section 313, Cr.P.C.
10. The examination of the appellant under Section 313, Cr.P.C. is reproduced below:
"1. From the evidence, it appears that on 12/4/2012, you played with the private part of Vanlalhmangaihi at their residence and even had sex with her. It seems she even bled on account of the incident and you asked her to keep quiet about it. What do you have to say?
Ans: I do not have much to say.
2. It appears that you left after the incident, is this true?
Ans: Yes."
11. In the case of Raj Kumar Singh v. State of Rajasthan (Criminal Trial Nos. 931-932/2009) : (MANU/SC/0468/2013 : AIR 2013 SC 3150), the Apex Court has held that an adverse inference can be taken against the accused only and only if the incriminating material stood fully established and the accused is not able to furnish any explanation for the same.
12. In the present case, the incident occurred on 12.04.2012. Though the evidence of PW1 in his cross-examination has recorded the incidence of rape having taken place from 12.04.2004, the examination-in-chief of the same witness records that the incident occurred on 12.04.2012. Thus, the wrong recording of the date 12.04.2004 in the cross-examination-in-chief of PW1 is a minor error and nothing can be read into the said error as the examination-in-chief of PW1 clearly states that the incident took place on 12.04.2012.
13. With regard to the appellant's counsel submission that the mother of the victim did not find any external injury on the body of the victim girl and the private part, it has to be kept in mind that the examination of the victim girl by her mother took place on a date after the incident had taken place and not on the date of the incident. The medical report in respect of the victim girl clearly shows that her hymen was torn. Further, there was some rashes in the inner side of her labia majora. Though the medical Officer could not ascertain the exact cause of the hymen tear and the rashes, the circumstantial evidence points to rape having been committed by the appellant. It is also to be kept in mind that the medical examination of the victim took place four days after the incident had occurred.
14. With regard to the appellant's counsel's submission that Section 212, Cr.P.C. was not followed as the place of the incident was not mentioned while framing charge against the appellant, I find that the same does not cause any prejudice to the appellant, inasmuch as, the appellant has not denied being in the residence of the victim girl at the time of the occurrence and as the appellant has himself admitted that he touched and played with the private parts of the six year old victim girl. This is clearly evident from the records.
15. With regard to the appellant's counsel submission that the appellant is suffering from some medical ailment, the same cannot be considered by this Court in the absence of any medical certificate issued by any Doctor or the Jail Doctor.
16. The evidence of the victim girl (PW3) is to the following effect:
"I know the accused.
I am reading in KG-I and I am 6 yrs. old.
On 12.4.2012, when my mother was away from home, one man called Lalthatpuia alias Tawia came to our house. My younger brother and Lalhmangaihzuala who is our neighbour were also present in our house. After sometime Lalhmangaihzuala went home. Thereafter, the man called Tawia touch my private part with his finger and lay me down on the floor and undress my underwear and he penetrated his penis into my private part and also inserted his finger in my private part. I feel pain in my private part and told me not to tell my mother. Thereafter, he went out from my house. After this incident I feel pain in my private part. As such, I could not pass urine properly and blood was coming out with my stool. I did not disclose the mother immediately but I told my friend Emily about the incident and Emily told my mother later."
17. The evidence of the victim girl has not been rebutted or shaken by the appellant during cross-examination. The appellant while confessing in his confessional statement that he touched and played with the private parts of the victim, has kept silent at the time of examination under Section 313, Cr.P.C. In Narendra Kumar (MANU/SC/0481/2012 : AIR 2012 SC 2281) (supra), it has been held by the Apex Court that once the statement of the prosecutrix inspires confidence and is accepted by the Court, conviction can be based only on the solitary evidence of the prosecutrix. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case.
18. In the case of Ashok Debbarma v. State of Tripura, reported in MANU/SC/0168/2014 : 2014 (4) SCC 747 : (AIR 2014 SC (Supp) 1431) and in the case of Munna Kumar Upadhyay (MANU/SC/0524/2012 : AIR 2012 SC 2470) (supra), the Apex Court has held that statements made under Section 313, Cr.P.C. can be used for corroboration along with other evidence for conviction.
19. In the present case, the evidence of the victim girl inspires confidence, and as such, the same is accepted by this Court. The medical report also corroborates the statement of the victim that the girl was raped. The confessional statement of the appellant shows that the appellant was touching and playing with the private parts of the victim girl. The appeal petition of the appellant at Para-4 also shows that the appellant has admitted to touching the outer surface genital area (private part) of the victim. The examination of the appellant under Section 313, Cr.P.C. shows that the appellant has not attempted to furnish any explanation to the question whether he played with the private parts of the victim and whether he had sex with the victim. However, he has answered in the affirmative when asked whether he had left the place after the incident. The evidence when taken as a whole clearly goes to show that the appellant had committed rape upon the victim girl.
20. In view of the reasons stated above, I do not find any infirmity with the Judgment and Order dated 05.02.2013 passed by the Addl. Sessions Judge-I, Aizawl in Criminal Trial No. 256/2012 under Section 376(2)(f), IPC. Accordingly, the present appeal petition is dismissed. In view of the services rendered by the Amicus Curiae, his fees of Rs. 7500/- will be paid by the State Legal Service Authority. Sent back the LCR.

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