C. Alberta vs State of Mizoram

MICHAEL ZOTHANKHUMA

1.Heard Mr. Aldrin Lallawmzuala, Amicus Curiae. Also heard Mr. A.K. Rokhum, Public Prosecutor.

The appellant has prayed for setting aside the Judgment & Order dated 20.10.2017 and Sentence Order dated 24.10.2017 passed by the learned

Additional Sessions Judge, Siaha in SR No. 15/2017, arising out of Siaha P.S. Case No. 46/2017 dated 18.05.2017, by which the appellant was

convicted for rape under Section 376(1) IPC and sentenced to undergo 15 years R.I with a fine of Rs. 10,000/-, i.d. 100 days R.I.

The prosecution case in brief is that on 18.05.2017, an FIR was submitted by the victim before the OC, Siaha P.S stating that in the evening of

30.04.2017, her friend Smt. Maengi had invited her out for a ride in Albert’s car. Thereafter, they bought one bottle of liquor and headed towards

Maisatla. They stopped on the way and drank the liquor. Thereafter, Albert pulled/dragged the victim out of the car and stripped of her clothes

including her underwear. She was scared and shouted loudly, after which she blacked out. The FIR also states that the victim girl did not know if the

appellant had sexual intercourse with her.

In view of the FIR dated 18.05.2017 submitted by the victim, investigation was conducted and the OC having found a prima facie case of rape

against the appellant, submitted a charge sheet. The further case of the prosecution was that the public had caught hold of the appellant, the victim and

the co-accused and they were handed over to the Police, who in turn sent them for medical examination on 30.04.2017 itself. Thereafter, all the three

persons were allowed to go home. The letter dated 30.04.2017, issued by the OC, Siaha Police Station to the Medical Officer, Civil Hospital Siaha had

requested that the appellant should be medically examined whether he could perform sexual intercourse. The medical examination report of the

appellant done by the Medical Officer on 30.04.2017 is to the effect that the appellant had stated that he had intercourse with the co-accused but not

with the victim. It also stated that the appellant was conscious. The medical report of the victim girl on 30.04.2017 states that she had consumed

alcohol.

Charge under Section 376(1) IPC was framed against the appellant by the Trial Court on 28.08.2017. Thereafter, the Trial started and after

examining 7 prosecution witnesses, one defence witness, the appellant and one co-accused, the Trial Court convicted the appellant under Section

376(1) IPC and sentenced him to undergo 15 years R.I with a fine of Rs. 10,000/-, i.d. 100 days R.I.

The appellant’s counsel submits that the alleged incident of rape occurred on 30. 04.2017, while the FIR had been filed 18 days later i.e., on

18.05.2017. He submits that the allegation of rape made by the victim was an afterthought and not supported by any evidence as the appellant, the co-

accused and the victim girl had all been produced before the Police and the Medical Officer on 30.04.2017 with regard to their inebriated condition.

However, no complaint or statement of rape was made by the victim girl to the Police or the Medical Officer on the night of 30.04.2017. The Amicus

Curiae submits that the evidence of the victim does not inspire confidence in view of the fact that the statement given by the victim before the CJM,

Siaha and the FIR are at odds with the evidence given in the Trial Court. He also submits that the evidence given by the Medical Officer with regard

to examination of the victim does not prove that rape had occurred. The Amicus Curiae also submits that the victim/prosecutrix, in her evidence,

stated that the FIR dated 18. 05.2017 (Exhibit P-3) is an incorrect FIR and the signature appended thereon was not her signature. The Amicus Curiae

also submits that the evidence of the two prosecution witnesses, who allegedly saw the appellant having sexual intercourse with the victim cannot be

relied upon to prove that rape had been committed, as the sexual act was consensual in nature.

Mr. A.K. Rokhum, Public Prosecutor submits that the appellant in his examination under Section 313 Cr.P.C had categorically admitted to the fact

that the victim girl had shouted for help during the alleged rape. He also submits that there being eye witnesses to the crime of rape being committed

upon the victim by the appellant, the fact that rape had been committed was proved. He also submits that though the victim, in her FIR did not state

that rape had been committed upon her by the appellant, the evidence given by the victim clearly stated that the appellant had raped her. Thus, the

statement of the victim being trustworthy, the appellant could be convicted solely on the basis of the testimony of the prosecutrix. He also submits that

there is corroboration of the victim’s statement of rape by the evidence given by PW 2 and 3 i.e., the eye witnesses. He accordingly submits that

the impugned Judgment & Order and Sentence Order should be upheld and the appeal be dismissed.

I have heard the learned counsels for the parties.

The Medical Doctor (PW 7), who examined the victim on 18.05.2017, had been specifically requested to examine whether the victim’s hymen

was intact or not, vide letter dated 18.05.2017 issued by the OC, Siaha P.S. However, the medical examination report dated 18.05.2017 issued by PW

7 does not make any mention of whether the victim’s hymen was intact or not. However, in his deposition in the Trial Court, PW 7 has stated that

the hymen of the victim was not intact. This evidence is not based upon any earlier finding or the medical examination report dated 18.05.2017.

Accordingly, the question of whether the victim girl’s hymen is intact or not is still a disputed question of fact. This however does not take away

the fact that there was sexual intercourse between the appellant and the victim. Whether it was consensual or rape is the moot point in issue.

The FIR dated 18.05.2017 (Exhibit P-3), submitted by the victim has been stated to be incorrect by the victim herself, not only in the cross

examination at Paragraph No. 7 but also in the re-examination, the extracts of which are reproduced below:- Para 7 of the Cross Examination “It is

a fact that the FIR which I submitted marked as Exhibit P-3 is not correct and the signature over FIR marked as Exhibit P-3(a) is not my signature.

Re- Examination The FIR that was lodged on 18.05.2017 marked as Exhibit P-3 is not the one which was lodged by me, because the FIR lodged by

me was hand written by my uncle H. Lalrosiama and duly signed by me. Besides the contents of the FIR marked as Exhibit P-3 did not include what I

have stated in the hand written FIR, written by my uncle H. Lalrosiama. On the day of lodging an FIR, the police asked me to sign on a piece of

paper.â€​

In the FIR dated 18.05.2017, the victim states that she did not know if the appellant had sexual intercourse with her or not as she had blacked out.

The victim in paragraph No. 16 of the cross examination states that she regained consciousness in the hospital. However, PW 2 & 3, who were eye

witnesses to the rape have stated that the appellant was shouting for help. It is not understood as to how the appellant could have been shouting for

help if she had blacked out and had regained consciousness only in the hospital. This however cannot take away the fact that as per the medical report

of the victim on 30.04.2017, the victim’s movement was uncoordinated and that the victim was drunk. In the alternative, the submission of the

Amicus Curiae that the sexual intercourse between the appellant and the victim was consensual may not hold much water as a drunk person may not

be able to give a proper consent and a person who had blacked out would definitely not be able to give consent.

A reading of the contents of the FIR and paragragph 16 of the cross-examination of the victim points to the fact that the victim could not have

been aware of any sexual intercourse having taken place between the appellant and the victim. Thus, if the victim blacked out prior to the alleged rape

and regained consciousness in the hospital, the victim could not have known if the appellant had committed rape upon her. However, in the

examination-in-chief of the victim, the victim states that after drinking the liquor, she was forcefully pulled out from the vehicle and was hit by the

appellant. She was forcefully undressed and the appellant thereafter inserted his male organ into her vagina. She cried out loudly to seek help. The

appellant, thereafter, covered her mouth with his hands and thereafter, she became unconscious. She also submits that there was blood stains on her

clothes as the appellants had inflicted physical harm upon her. The eye witness, PW-2, on the otherhand, has stated in her evidence that when she

saw the appellant having sexual intercourse with the victim, the victim was in a conscious state. As stated earlier, the evidence given by the victim is

not in conformity with the FIR and paragraph No. 16 of the cross-examination of the victim.

Though the victim has categorically stated that the FIR which was marked as Exibit P-3 is not correct and that Exhibit P-3A was not her

signature, the prosecution and the Trial Court has not made any explanation with regard to the above deposition of the victim. Accordingly, there is

discrepancies in the statement of the victim/prosecutrix. Paragraph-17 of the victim girl’s deposition during cross-examination is to the effect that

she had consumed alcohol on several occasions prior to the day of the incident. However, in the statement given by the victim to the CJM, Siaha on

24.07.2017, the victim has stated that she had not drunk liquor prior to the incident. In the said statement recorded on 24.07.2017, the victim had also

stated that the two accused had asked her to drink the liquor and she obeyed. There is nothing in the evidence to show that she was forcefully made

to drink the liquor. In fact, the victim at paragraph No. 6 of her cross examination has stated that she had got down at Siahatla to buy liquor, kuhva and

tamarinds. The statement made by the victim on 24.07.2017, which was recorded by the CJM, Siaha District has been exhibited as Exhibit P-20.

However, the said CJM has not been examined by the Trial Court.

The Trial Court has also failed to examine the I.O who conducted the investigation and has only examined the I.O, who submitted the charge

sheet.

The victim in her evidence had stated that there were blood stains on her clothes. However, though the victim, the appellant and the co-accused

were produced before the Police and the Medical Officer on the alleged date of incident, no such report or recording of any blood stain was made.

Further, as stated earlier, no allegation of rape had been made by the victim on 30.04.2017 before the Police or the Medical Officer. This Court also

finds that the appellant and the co-accused Smt. Laleni had given evidence during the trial. However, there is nothing in the records to show that the

accused persons had given consent to be a witness against themselves. The examination of the appellant and the co-accused under Section 313

Cr.P.C having been done on 21.09.2017, this Court is unable to understand as to how the Trial Court could have made the appellant and the co-

accused give evidence on 10.10.2017. In this respect, it would be fruitful to reproduce Article 20(3) of the Constitution of India, which states “No

person accused of any offence shall be compelled to be a witness against himself.â€​

At this stage, Mr. AK Rokhum, Public Prosecutor submits that the matter may be remanded back to the Trial Court for taking additional evidence

of the I.O who conducted the investigation, to which the Amicus Curiae does not have any objection. However, the learned Amicus Curiae submits

that the appellant may be granted bail during the time the criminal proceedings remains pending in the Trial Court.

In view of the consent of the parties and without going further into the merits of the case, this appeal is remanded back to the Trial for taking

additional evidence of the I.O., who conducted the investigation, and of any other witness, as allowed as per law. The Judgment & Order dated

20.10.2017 and Sentence Order dated 24.10.2017, passed by the learned Additional Sessions Judge, Siaha is set aside. The learned Trial Court shall

take additional evidence of the I.O. who investigated the case and of any other witness it finds necessary. It shall not be influenced by any of the

observations made by this Court in this appeal, while deciding the case afresh. The appellant is at liberty to pray for bail before the learned Trial Court

as permitted by law.

The appeal is accordingly disposed of.

Send back the LCR.

In view of the assistance rendered by the learned Amicus Curiae, his fee is fixed at Rs. 7500/-, to be paid by the State Legal Services Authority.