Tharliana vs State of Mizoram

S.K. Kar, J.—This is a common judgment to dispose of two appeals above noted, one by State of Mizoram for enhancement of sentence passed on convicted person Pu Thangthuia and, other by Pu Tharliana for his acquitted setting aside the conviction and sentence passed on him.

The two appeals originated from same judgment and order dt. 4.10.2001 passed by learned Addl. District Magistrate (Judicial), Aizawl District, in case No. GR 840/87 (Aizawl P.S. Case No. 621/87 Under Sections 363/376/511/34 Indian Penal code). The Appellant Tharliana (Crl. A. 10/2001) was sentenced to R.I. for 3 years 6 months finding him guilty of offence u/s 363/34 of Indian Penal code whereas the co-accused Thangthuia was convicted Under Sections 363/376/34 Indian Penal code and sentenced to R.I. for 4 years who has not preferred any appeal. Learned Counsel A.R. Malhotra is defending convict Thangthuia, Respondent in Crl. A. 13/01, Amicus Curiae, appointed by Court at State Expenses.

To be concise, case for the prosecution is that on 01.11.1987 at Mc donald Hill, Zarkawt (Aizawl) the two accused persons, namely, Thangthuia and Tharliana, forcibly dragged Miss Lalhmunsiami, a minor girl of 14, at about 4.30 a.m. when she was undergoing early morning walking session of exercise on the street of Aizawl town along with her brother and friends, namely, Zairemtluanga, Lalbiaktluanga, Lalchhanhima, Lallianmawii and Fakawmi, and took her to their camp at Mc donald Hill where one of them took out a rifle and stood guard while the other committed rape on her. In the meantime however, her friends along with local people went to the camp shouting and rescued her breaking open the door.

Written FIR being lodged at 5.30 a.m. on the same day by the father of the victim, being informed by some of her friends, police took up immediate action by visiting the place of occurrence and apprehending the culprits. The investigation was taken up by S.I.L. Dama on the order of the O.C. On completion of investigation he submitted charge-sheet Under sections 363/376/511/34 Indian Penal code against the present Appellant of Crl. A. 10/01 and Respondent No. 1 of Crl. A. 13/01 and the trial followed ending in conviction and order as aforesaid.

I have heard both sides. Perused the evidence and materials on record in connection with the two appeals. The LCR was called for and received.

Learned trial Court framed charges jointly against the Appellant/Respondent concerned Under Sections. 363, 376 read with 34 of Indian Penal code and they pleaded not guilty to the charges when read over and explained.

Defence plea, it seems, was not clearly disclosed and may be taken as denial simplicitar.

The points for determination, in view of charges framed and defence taken, though recorded in cryptic way by the Trial Court were as follows:

(a) Whether on the date and at the time and place of occurrence as alleged the accused Thangthuia and Tharliana kidnapped Lalhmunsiami.

(b) Whether after so kidnapping her one of the culprits, i.e. Thangthuia, committed rape on her with the aid of the other.

(c) Whether they acted in furtherance of any common intention.

In order to substantiate the charges framed prosecution examined eight out of the fifteen persons cited as witnesses in the charge-sheet. Documents relied upon were the FIR, seizure list, medical examination report of the victim and the accused and the charge sheet. Defence adduced no evidence of its own save by way of cross-examination of the P.Ws. Doctor was also not examined.

The FIR Ext. 1 in this case, although promptly lodged by father of victim, does not give full narration of the incident. The informant, deposing before Court on oath, however, fully corroborated his FIR and he had affirmatively stated on oath that both the culprits were pointed out to him by his daughter when he went to the place of occurrence (P.O.) on receiving the information of the incident from Fakawmi and Lallianmawii (not examined). P.W. 1 identified accused Thangthuia at the accused''s dock also when he deposed but Tharliana was absent on that day. P.W. 1 stated further that he found his daughter weeping, took her to doctor and then to police station. That people present there at the place of occurrence told him that they rescued the victim from inside the barracks. (It was not proper to record evidence in absence of accused Tharliana). P.W. 1 also stated that his daughter (victim) told him weeping that two persons forcibly took her to the barracks and while one was pointing a gun at her, the other raped her. P.W. 2 the victim fully corroborated this statement of P.W. 1 to that effect when she deposed as follows:

My father and elder brother also arrived and I told my father weeping the incident that had happened.

There is absolutely nothing to discredit P.W. 1 as a witness and when believed he brings out a fully corroborated version of FIR along with P.W. 2 about identity of the perpetrator of the crime in question i.e. Thangthuia.

P.W. 2, the prosecution has clearly and unequivocally deposed, notwithstanding the flaws in conducting prosecution and in recording her statements by Court in proper order and sequence, that on 01.11.1987 she along with her friends and younger brother went out for early morning exercise drill from her house at about 3.30 a.m. and reached a place at Zarkawt when three persons met them and made an (evil) suggestion to go for sexual intercourse as they were three girls and three boys. That they ignored them and went ahead with their efforts. That after making a round they again met these three persons near Bara Bazar road and one of them caught hold of her. That her brother and friends tried to resist in order to rescue her but were beaten up. That thereafter two of them (meaning the two accused) forcibly took her to their camp at Mc donald Hill, where it was still dark. That they took her inside the barracks, one of them brought a rifle. They bolted the door, put out the light, one of them stood guard and other made her lie on bed, removed her underwear and introduced his penis inside her vagina while the other assisted him by lubricating her vagina with his saliva. That in the meantime people started shouting at the door to open it and the rapist''s penis slipped out of her vagina and he ran away without his clothes and jumped out from the back door. That the other culprit also followed the rapist throwing away the rifle. That other inmates in the barracks did not resist the offender although awake.

Unwisely for prosecution the initial sentence of deposition of P.W. 2 says that she does not know the accused in the Court. It was however clarified and confusion was removed during last part of her examination-in-chief at the intervention of the Court and P.W. 2 affirmed that:

the person who raped me is present in Court and his name is Thangthuia.

and explained that she confused the question of Prosecuting Inspector (PI) and thought that he was asking whether she had previous acquaintances with the accused. P.W. 1 also identified the accused Thangthuia as mentioned earlier soon after the incident. P.W. 3 also identified accused Thangthuia as one of the three persons who met them and suggested them to go for sexual intercourse. P.W. 3 also stated that later on when they went inside barracks searching for P.W. 2, they saw the same two persons who forcibly took P.W. 2 along with them. P.W. 7 also stated that accused Thangthuia was present at P.O. soon after the alleged occurrence and he was warned by his Commandant General against such act of rape etc. Therefore, there is nothing to doubt the identity of the person who committed rape and P.W. 2 can be safely believed to that extent being reasonably corroborated by other P.Ws. In this context we may refer to law given by 1999 Cri.L.R. 369 (374), which states:

When the prosecutrix a school girl was dragged by the accused on her way to her home from school and both of them committed forcible intercourse on her in the nearby jungle, and two school mates fled away and informed her parents, then the identification of the accused by the prosecutrix in Court and identification by the two school girls and other witnesses is enough to convict the accused....

Hon''ble Supreme Court also held refer 1992 BBCJ (SC) 160 (161):

Where the accused was alleged to have come with rifle and had forcibly taken away the prosecutrix from her hut and committed rape on her and it was not the case of the defence that there was no light, acquittal of accused by High Court on the ground that there was no cogent evidence regarding the identity of the accused would not be proper, since victim girl was 13 years old and could not have forgotten the face of the man who committed such ghastly crime upon her.

P.W. 2 also stated that when culprits took her inside the barracks electric bulbs were burning and they first allowed her to stand a little while etc. Thus she had enough time to fix the identity of rapist.

The minor contradictions here and there in her statements regarding the dress of the accused persons, number of other home-guard personnel inside barracks, exact name of place from where she was forcibly dragged etc. are of no consequence and have to be overlooked, in view of settled law to that effect holding that credibility of testimony, oral and circumstantial, depends considerably on judicial evaluation of the totality, not isolated scrutiny - Inder Singh and Another Vs. The State (Delhi Administration), In Anr. case on the subject Hon''ble Supreme Court observed, refer Sukhchain Singh Vs. State of Haryana and Others,

Every contradiction or improvement not directly related to the occurrence, is no ground to reject the testimony of the witness.

We may not be oblivious here that P.W. 2 (the prosecutrix) was a young girl of 14 in her joyful mood when she was forcibly dragged away from the midst of her friends and physically violated. Under such bewildering embarrassment she is not expected to note all facts around her so minutely, which may be Anr. reason for the minor contradictions to surface during the cross-examination. The doctor was not called as a witness in this case and hence any finding recorded by the doctor is not admissible in evidence to seek any corroboration of statements of P.W. 2. But then, P.W. 2 herself submitted that there was no injury to her private parts and she had no sexual experience earlier. There is nothing in her deposition made on oath to infer any improbability or untruth. Causation of injury will be attributable to the nature and manner of the commission of the crime and the extent of resistance, if any, offered by the victim. P.W. 2 had never stated in her evidence that she offered any resistance. Thus, there was no infirmities in her statements and her evidence inspires confidence. P.W. 2, thus, fully reliable and on her evidence alone a conviction will lie. Moreover, it is settled law also that medical evidence is desired but not indispensable to prove rape. We may refer to the following views of Court in this context. In (1988) 2 Ker LT 972 : 1989 1 Crimes 22, it was held:

Medical evidence can hardly ever negate the charge of rape. It may not support the charge but it cannot negate it.

Further, 1987 Cri. LJ 1541 (1543) would be more applicable her, I quote-

Absence of external injury may or may not indicate absence of physical violence by itself, and does not mean that sexual intercourse had not been committed forcibly. A force need not be actual force. A threat of force may at times, prompt submissions of prosecutrix to sexual act and may not cause any physical injury.

In the instant case the rifle was held right near her ear and extent of application of force is evident from the fact of she being dragged from a distance from amongst her friends, confined in room bolting the doors by two persons of a force (Home-guards). P.W. 2 also stated due to arrival of people the offender had to flee without discharge of semen and hence there would hardly be a question of finding stains or spermatozoa on medial examination (which was not legally adduced here for non-examination of doctor). Under facts and circumstances aforesaid there was no expectation from P.W. 2 to react and resist.

Referring to law in a recent judgment reported as State of Rajasthan Vs. Om Prakash, Hon''ble Apex Court has reiterated the exact law in distinct and clear terms which governs charge u/s 376, Indian Penal code with discussions of the earlier laws in this context, and summarised as follows:

The conviction for offence u/s 376 Indian Penal code can be based on the sole testimony of a rape victim.

*** *** *** To much was made by the High Court on account of non-examination of persons other than family members. The aspect of non-examination was given undue importance without having regard to the contextual facts. Cases involving sexual molestation and assault require a different approach-a sensitive approach and not an approach which a Court may adopt in dealing with a normal offence under penal laws. (para 15)

*** *** *** There is no force in the contention that if there was any forcible sexual intercourse, it would have resulted in some injuries upon the prosecutrix. Presence of injuries are not always a sine qua non to prove a charge of rape. .... (para 18)

It may be concluded, thus, without any scope of maintaining doubt that there was rape on P.W. 2 committed by accused/Respondent No. 1 Pu Thangthuia and he was rightly convicted. This answers point (b) noted for determination.

Points (a) and (c) - On the given facts, in my opinion, there was neither any case of kidnapping nor any case of exercise of common intention. Evidence to infer common intention is lacking in this case. Kidnapping and abduction have been defined in Sections 359 to 362 and simple kidnapping is punished by Section 363, kidnapping are of two types kidnapping from India (Section 360) and kidnapping from lawful guardianship (Section 361). Section 361 goes as follows:

Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, it said to kidnap such minor or person from lawful guardianship.

In the instant case the allegation is that P.W. 2 was dragged by holding her hands forcibly for the purpose of having sex with her which is part of the transaction constituting offence of rape and guardianship of the victim was not disturbed as such, it remained till with her father. It was not intended also under the alleged facts and circumstances of the case. Although superfluous, at best there could have been a charge of either wrongful restraint (Section 341) or wrongful confinement (Section 342) or use of criminal force and assault (Section 352) but no kidnapping. Equally, from factual context there could not be any inference of common intention on the part of the co-accused who only assisted or aided the acts of the rapist and these activities suits the definition of an offence of abetment u/s 107 punished by Section 109 Indian Penal code. In consonance of law pronounced vide 1984 Cri. LJ 426 (428) (Punj.) the co-accused Tharliana (Appellant of Cri. A. 10/01) could have been punished in spite of the fact that there was no charge to that effect for abetment. But then, fortunately for him the Appellant was neither specifically named nor identified during the trial of the case. Learned PP very fairly conceded to the submission that there is no admissible evidence to rope in accused/Appellant Tharliana. Had the prosecution could have been conducted properly. Tharliana could have been punished for abetment on the base of case cited below.

Accused charged with main offence only-Omission to frame charge of abetment-Accused having notice of facts constituting offence of abetment-No prejudice caused to the accused by such omission-held, Accused can be convicted for abetment even though charge for main offence fails." - Sardara Singh Vs. The State of Haryana,

However, this looks quite an academic in view of absence of material against the accused. Therefore, on both counts the conviction of Appellant Tharliana is without jurisdiction and illegal and cannot be sustained. This answers the points (a) and (c).

Adverting to the submission on the question of sentence, particularly in the context of appeal by State of Mizoram, law is very clear. Learned PP has referred me to Kamal Kishore Vs. State of Himachal Pradesh, I quote:

The long time lag which elapsed subsequent to the date of offence and the fact that the prosecutrix got married and is well settled in life and that she is now mother of children-all these things which happened during the intervening period, may be factors for consideration by the executive or constitutional authorities, if they have to decide whether remission of the sentence can be allowed to the accused. It is made clear that the enhanced sentenced has been imposed on the accused without prejudice to any motion he may make for such remission of the sentence before the authorities concerned.

In recent judgment, State of Rajasthan Vs. Om Prakash, also it was held as follows:

Lastly, it is not possible to accept the contention on behalf of the Respondent that the incident took place about 13 years back and by now the accused has matured and would be around 31 years of age and having already undergone nearly three years of sentence, the same may be treated by the Supreme Court as sufficient punishment to him and, therefore, taking a sympathetic view, the sentence already undergone be imposed. The trial Court imposed on the Respondent a sentence of seven years'' rigorous imprisonment besides fine. Having played with the life of a child, the Respondent does not deserve any leniency and for him sympathy on the ground sought for will be wholly uncalled for.

(emphasis supplied)

In that context of law, it seems that learned trial Court misconceived the law and passed an illegal sentence of Respondent No. 1 (Cri. A. 13/01). The explanation of the Trying Court in passing sentence other than the minimum prescribed by law was as follows:

A lenient view is given to them as they are sole supporters of their respective family.

But law does not sanction such authority and law will have to be obeyed without personal reservations or views. Section 376 Indian Penal code prescribed a sentence of ''imprisonment of either description for a term which shall not, be less than seven years....and also a sentence of fine'', if the guilt is established on evidence. However, there is a proviso to the section of law as follows:

Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

The law quoted before hand in this context will show that a question of sympathy is uncalled for and ''the expression "adequate and special reasons" indicates that it is not enough to have special reasons nor adequate reasons disjunctively. There should be a conjunction of both for enabling the Court to invoke discretion. Reasons which are general or common in many cases cannot be regarded as special reasons....No catalogue can be prescribed for adequacy of reasons nor instances can be cited regarding special reasons, as they may differ from case to case."- Kamal Kishore Vs. State of Himachal Pradesh,

The reasons given in the present case are casual and common type which does not inspire prowess and prudence. A young girl, unaware of the danger of being, on the streets in the early morning hours and frolicking with her friends and younger brother, was caught hold of by a person of discipline force entrusted to keep peace in society, in order to satisfy his lust not earning for the damage he will thereby cause to her Psyche, cannot be dealt with leniently. There was no evidence of any extenuating circumstances in this case. Flowers blooming are part of the exquisite beauty of the nature to be caressed and appreciated but not to be plucked and trampled to inglorious fade of ignominy. Therefore, there is the legal obligation to pass an appropriate sentence to serve the ends of justice. Citation (2002) 4 SCC 745 (Supra) Court observed in this context-

Child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of sexual pleasure. There cannot be anything more obscene than this. It is a crime against humanity....

The impugned sentence requires modification and enhancement.

Both appeals are allowed. Conviction and sentence passed on Appellant (Crl. A. 10/01) Tharliana is set aside. He stands acquitted of charges Under Sections 363/376/34 Indian Penal code and is set at liberty at once discharging his bail-bond.

Conviction of Respondent No. 1 Thangthuia (Crl. A. 13/01) u/s 376 Indian Penal code is upheld and sentence passed on him is hereby enhanced to R.I. for seven years and a fine of Rs.1000/- (Rupees one thousand), in default of fine to a further R.I. for 3 (three) months. Bail if granted would stand cancelled. Trial Court to execute the sentence as per law. The convict will be entitled to set-off as provided by Section 428 Code of Criminal Procedure Trial Court would calculate the days spent by him as UTP and intimate the concerned Supdt. of Jail for necessary action and pass necessary order for disposal of property seized, by police in this connection.

For the reasons aforesaid the question of invoking power of Court under Probation of Offenders Act does not arise.

Before parting with this case, I would observe that there was scope for an improved method of conducting the prosecution and a need for quicker disposal of the case. Sessions trials are to be conducted earnestly, cautiously and with speed to inspire confidence of people in the process of administration of justice. Evidence is to record either in presence of the accused or his advocate when advocate agrees to represent him, but not in his absence particularly when the question of identity is involved and disputed.