IN THE COURT OF ADDL.DISTRICT & SESSIONS JUDGE-I AIZAWL JUDICIAL DISTRICT, AIZAWL

Sc No.19 /2014, A/o Crl.Tr .No. 239/2013, CPI- P.S Case No.147/2013 U/S 376(2)(I) IPC

State of : Complainant Vrs Biakchungnunga : Accused

BEFORE Vanlalmawia Addl.District & Sessions Judge-I PRESENT

For the opposite party : R.Lalremruata, Addl.PP. For the Accused : R. Thangkanglova, Advocate. Date of Judgment : 28.04.2016.

ORDER

Accused Biakchungnunga s/o Dozika of N. stand for trial. Today is fixed for pronouncement of Judgment. The prosecution story of the case in brief is that on the night of 21.10.2013 at 10:00PM, one Hrilliana(43) s/o Lianchhuma of North Khawbung Village, District appeared at the P.S and submitted a written FIR to the effect that on the same day i.e. 21.10.2013 at around 4:00PM, his daughter Lallawmsangi(15) was forcibly raped by one Biakchungnunga(31) s/o Dozika of North Khawbung Village, inside their residence. Hence, CPI-PS C/No. 147/13 Dt. 21.10.2013 u/s 376(2)(i) IPC was registered and duly investigated into.

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During the course of investigation, the complainant was thoroughly and carefully examined and recorded his statement. The PO was visited but no physical clue was found at the PO and rough a sketch map of the PO was drawn. The Victim Lallawmsangi(15) d/o Hrilliana of North Khawbung village was forwarded to the Medical Officer, District Hospital, Champhai for Medical Examination. According to Medical Examination Report, hymen of the victim was old sign of tear, no active bleeding, no bruising/laceration on external genitalia and no spermatozoa seen on laboratory examination but there was discharge- whitish, recently after sexual assault. The victim was examined thoroughly and carefully. On examining her, she stated that she was allegedly raped by Biakchungnunga(31) S/o Dozika of North Khawbung on 21.10.2013 at around 4:00PM. On further examination, she stated that before the accused Biakchungnunga(31) s/o Dozika of North Khawbung, Champhai District have sexual intercourse with her on 21.10.2013, there was one person who was having sexual intercourse with her. She further stated that during the month of July, 2013, one Lalchhuanawma(18) s/o Hramliana of North Khawbung have sexual intercourse with her and she did not reveal that incident to her father as she was in fear of that person. From the statement of the victim and from the Medical Examination report, it was found out that one Lalchhuanawma(18) s/o Hramliana of North Khawbung had raped the victim several times. Hence, a suomoto FIR was submitted to O/C Champhai PS for registering a case against the accused Lalchhuanawma(18) s/o Hramliana of North Khawbung village. Birth Certificate and underpant which was worn by the victim at the time of incident was seized from the father of the victim in presence of two reliable witnesses and their statements were recorded. The seized articles were kept at PS Malkhana vide MR/No.123/13 and sent to Court. The accused Biakchungnunga(31) s/o Dozika of North Khawbung Village was arrested on the night of 21.10.2013 and interrogated him thoroughly and carefully. On interrogation, he stated that on 21.10.2013, he entered inside the house of Hrilliana and Hrilliana‟s daughter Lawmsangi was alone inside the house. He further stated that he grab her hands and pulled her on the bed forcefully and lean upon her which the brother of the girl caught him red-handed. Since, the Page 2 of 14

accused person admitted his guilt and confessed before Police, he was formally arrested in connection with this case by preparing proper arrest memo and his statement was also recorded. All available witnesses namely Lalromawia(12) s/o Hrilliana, Lalhlui(36) w/o H. Lallungmuana, Laldinthari(12) s/o Hmingthanmawia, Lalkawltira(11) s/o Lawmsanga and Laltinpari d/o Vanlala all of North Khawbung, Champhai District were examined and recorded their statements.

From the statement of the complainant, victim, accused and witnesses collected during investigation, a prima facie case u/s 376(2)(i) IPC was found well established against the accused Biakchungnunga(31) s/o Dozika of North Khawbung Village.

Charge u/s 376(2)(I) IPC is framed, read over to the accused in the language known to him to which he pleaded not guilty and claimed for trial. The prosecution examined as many as 11(eleven) witnesses, and two defence witnesses were also examined.

PW No.1, who is also Complainant Hrilliana deposed that on 21.10.2013 on went back home from his selling of Charcoal, people are gathering at his neighbor house and he was told that his daughter was raped by accused Biakchungnunga and his daughter Lawmsangi was inside the house and asked about that and she told him that she was raped by the accused. They went to Champhai P/S with some NGO member, and submitted FIR, and Ext.P-1, is FIR and Ext.P-1(a) is his signature. In the Cross examination, he stated that he was informed by the doctor that his daughter was actually raped and Birth Certificate and underwear were seized by the Police.

PW No.2 Lallawmsangi stated that on 21.10.2013 @ 4:00Pm, while I was alone at home, accused Biakchungnunga came to our house. He asked me the whereabout of my father and I told him that my father had gone to sell things. He then started touching me and forced me to the bedroom. I tried run but he kept on chasing me. He forced me to the bed. At this time, my brother‟s friends Dinthara and Kawltira entered our house but the accused shouted at them to

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leave the house. As soon as they left, he then again forced me to the bed and he took off my pants and he also took off his own pants. He started to rape me and after a little while my brother came inside the bedroom and the accused was still on top of me. But I managed to get up and the accused left us. Me and my brother went to my uncle Pa Rorela‟s house. When my dad came home that night, we went to the MHIP, North Khawbung and then went to the Police when my father filed an FIR.

XXX by D/L :

It is not a fact that the accused did not insult his private part into my private part and nobody saw us at the time alleged rape.

PW No.3 & 4, Sangthanga and H.K. Zawna are the seizure witness of the seizure of Victim‟s Birth Certificate and underwear by the Police.

PW No.5 Lalromawia deposed that I read in Class- VI at N.Khawbung Government Middle School. On 21st October 2013 after school I went to U Duhsaka‟s house to watch TV. After a while I went to volley ball court to play, while I was at volley ball court my friend Dinthara and Kawltira informed me that one guy Biakchungnunga with curly hair tried to rape your sister Lawmsangi at your residence. We immediately rushed to my place and when we reached there one Biakchungnunga was on top of my sister and he was touching my sister‟s breast on the bed of my parents, when my sister Lawmsangi saw me she was crying out for help to me saying that „Mapui min chhan rawh‟ and I told Biakchungnunga to leave my house immediately and he got up from bed and leave my house. After that we went to my uncle Rorela‟s house to informed the said incident to him, however he is not at home and we told the matter/incident to his daughter namely Ramnunmawii.

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PW No.6 Lalhlui deposed that on the evening of 21st October 2013, I received one telephone call from Chuailovi who is the wife of Hrilliana‟s younger brother informing me that one Biakchungnunga rape Lawmsangi D/o Hrilliana, and I asked her when and where the said incident took place, she told me that it was around the time for preparing dinner at Hrilliana‟s house. As a President of MHIP Khawbung „N‟ Champhai District, I told her that I will inform the matter/incident to our President MHIP Sub-Headquarters Champhai.

After I finish my dinner I called our Vice President, MHIP Khawbung „N‟ Champhai District namely Lalbiakthuami to go to Pu Hrilliana‟s house. When we reached Pu Hrilliana‟s house Biakchungnunga was already there and told us that he did not rape Lawmsangi but Lawmsangi on the other hand told us Biakchungnunga raped her on that day and we told them to report the matter to the Police and to have Medical checkup.On that night me and my friend Lalbiakthuami and other members of MHIP, YMA, VC went to the Police Station Champhai with Pu Hrilliana and his family along with the victim.

Cross examination by the Defence counsel:

The time Chuailovi told me about incident was 3 or 4 pm there were houses near Hrilliana‟s house within a shouting distance.

Personally I have not heard or seen anything about this alleged rape.

PW No.7 Laldinthara deposed that I read in Class- VI at N.Khawbung Government Middle School. On 21st October 2013 I and my friend Kawltira after school we went to Pu Hrilliana‟s House to make fishing tools (nghakuai) as Pu Hrilliana have blacksmith, we also tried to invite Romawia S/o Hrilliana. When we reached Pu Hrilliana‟s house the main door was close, we open the main door and went inside the house we saw Biakchungnunga forcibly pulled the hands of Lawmsangi at her back inside the bed room of Pu Hrilliana. When Biakchungnunga‟s knew that we have seen what he has been doing upon Lawmsangi he shouted at as to leave the house at once and said that you have

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nothing to do inside this house so you better leave the house. When we are about to leave the house of Pu Hrilliana, Lawmsangi pulled my shirt and cried out for helped. After that I and my friend Kawltira leave the house of Pu Hrilliana and we searched Romawia brother of Lawmsangi when we reached volley ball court we called Romawia and told him the matter/incident that took place at their house saying that one guy tried to rape your sister Lawmsangi. We immediately rushed to the house of Pu Hrilliana, my friend Romawia went straight to their bed room and saw Biakchungnunga and his sister, and I heard Lawmsangi crying out for help to her brother. And I also heard Romawia asked Biakchungnunga to stop what he has been doing upon her sister. I and Romawia took Lawmsangi out of their house and we went to Pu Rorela who is their uncle and when we reached there we informed all the matter/incident to him.

Cross examination by the Defence counsel:

At the time when the Police recorded my statement they did not read it out to me and as such I do not know whether they have recorded my statement correctly or not. When Kawltira and I went to the house of Hrilliana we were discussing things very loughly the door produced sound at the time of opening it the door of Hrilliana. At the time when we reached inside the said bed room Lawmsangi‟s hands where held by Biakchungnunga and he told as to leave the room.

It is a fact that my age at the time of this incident was less than 13 years.

It is not a fact that I did not go to Hrilliana‟s house on that day.

PW No.8 Lalkawltira deposed that on the evening of 21st October 2013, I went to the house of the victim along with my friend Dinthara to seek help from Romawia who is the younger brother of the victim in order to make fishing hook. As we entered inside the house of the victim Romawia was not there and we found only Biakchungnunga the accused and Lawmsangi in the victim. We called Romawia and since he did not answer we thought that he was hiding inside the room and then we entered the room and we saw the accused holding the hands

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of the victim and the accused told us to go out. We found Romawia at the valley ball court and we told him about the incident. We along with Romawia then went to the house and as we entered we saw the accused upon the victim and I think the accused was trying to rape Lawmsangi, and the victim was also crying.

Cross examination by the Defence counsel:

Both the accused and the victim in full dress when we saw them. I do not know whether they are doing anything. Victim Lawmsangi‟s father came home and then we went out. The witness just before me is Laltinpari and she is 13 years of age.

PW No.9 Laltinpari statement has no any weight in the instance case.

PW No.10 Dr. J. Lalramchhuanga deposed that he examined the victim and found no marks of violence in the body and there was old sign of hymental tear and exhibited his report as Ext.P-4. In his cross examination, she stated that it is not possible to ascertain the age of hymental tear it may be one month or one year or more.

PW No.11 S.I. Lucy Zosangzuali, Case I.O. submitted among other that on interrogating, the accused confessed that he grabbed the hand of victim, pulled her of the bed forcefully and lean upon her and after investigation she found a prima facie case u/s 376(2)(I) IPC. In her Cross examination, she has not personally seen nor heard anything about the incident and all she know about the incident are derived from other person.

The accused Biakchungnunga was examined u/s 313 CrPC and answer the question put to him as followed:-

Q.1. It is from the evidence that you are staying at N.Khawbung and the victim Lallawmsangi is also staying at N.Khawbung. What do you say?

Ans: Yes, I stayed at Khawbung with Lallawmsangi.

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Q.2. It is from the evidence that on 21.10.2013 @ 4:00pm you entered the victim‟s house and asked the where about of her father. What do you say?

Ans: Yes, I asked where her father has gone.

Q.3. It is from the evidence that after the victim Lallawmsangi told you that her father was not at home and seeing her alone at home, you forced her to the bed. What do you say?

Ans: Lallawmsangi was already laid on the bed.

Q.4. It is from the evidence that the victim Lallawmsangi‟s brother‟s friends Laldinthara and Lalkawltira saw you grabbing the hands of the victim, you shouted at them to leave. What do you say?

Ans: I do not grabbing my hand to leave, but only one seller of maize has entered.

Q.5. It is from the evidence that you then forcibly removed her pants and raped the victim Lallawmsangi. What do you say?

Ans: No, I do not force her to remove her pant nor rape her.

Q.6. It is from the evidence that you were then arrested on 21.10.2013 @ 10:00 pm for an alleged rape of Lallawmsangi. What do you say?

Ans: I was arrested for allegation of rape, we have no sex with the victim till date.

After the prosecution evidence is closed, the accused Biakchungnunga produced two defence witnesses.

DW-1 Lalramlawmi of North Khawbung stated that on 25.10.2013 while I was near the house of Pu Hrila black smith Biakchungnunga came to us carrying an old axe and asked him where he was going and he said he wanted to sharpen

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the axe to the black smithy Hrilliana and he went up to the house of Hrilliana and came back soon, and I asked him why he comeback soon, he told me that Hrila was not in the house. And the time he spent for going to Hrilliana was about 4 or 5 minutes and came back to us. The distance from our standing place to Hrilliana‟s house was about 10 meters. The accused was suffering from nerve trouble and he could hardly walk. In view of the short period he spent I strongly believe there was no sufficient time for committing rape. The prosecutric is a girl of easily attainable and she used to have cases in connection with sexual offences.

Cross examination

The accused is our family friend; he is not my relative by blood. I do not know how many axe the accused is having, and I do not know how many times the accused had gone to the house of Pu Hrilliana to sharpen his axe. When I said I saw the accused going to the house of Hrilliana on 25.10.2013 I was working at my compound growing mustard. By this time I was not carrying any bag and I was not having my mobile phone with me. However I kept my phone not far from me. I personally do not know what the accused was actually doing at the house of Pu Hrilliana as I did not go with him to Pu Hrilliana‟s house. I do not have a watch myself. Since I do not have a watch and since I did not have my mobile phone with me I cannot say the exact time taken by the accused for going to and coming back from Pu Hrilliana.

It is not a fact that I deposed as the accused is my family friend.

DW-2 Kapchungnunga deposed that I was a VCP of Khawbung for about 6 years and was Vice President VC for about 6 years.

I do not believe that Biakchungnunga could have rape Lawmsangi because Biakchungnunga has always been a reliable person spending his time as one of the leaders of YMA in our village, he was always involve by himself in our

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local church as building committee and others, he has never been suspected to be a man of bad character like rape of other girls etc.

Regarding the present case Lawmsangi Prosecutric used to have love affairs with Maawma and when Lawmsangi was examined by Medical Officer he reported hymen was rapture as Biakchungnunga did not have any sexual intercourse with the prosecutric I believed rapture of the hymen of the prosecutric was caused by Maawma or some other person once Maawma was accused of having had rape the prosecutric and to avoid the prosecution in this respect Maawma gave Rs.10,000/- to the father of the prosecutric and because of this the rapture of the hymen of the prosecutric should have been done by Maawma Biakchungnunga strongly denied that he rape the prosecutric. There are many other houses occupied by family near the P.O.

Cross examination

It is a fact that I do not have a document like appointment letter by the YMA or church appointing the accused before the court today.

Though I said that the victim had sex before, it does not mean that the victim cannot be raped later.

Since I did not follow the accused 24 hrs a day I cannot say whether he actually raped the victim or he did not rape the victim, however I strongly believed that he did not rape the victim.

Mr. R. Thangkanglova, Advocate, ld. Counsel for the accused submitted his argument in writing that :

1. That in this case the prosecution failed to prove the guilt of the accused and the accused can be acquitted honourably.

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2. That the alleged victim was not examined in the court to prove or disproved the alleged rape or the alleged victim never said in the court that she was raped by the accused.

3. That P.wit No.5 Lalromawia said that they went to the house of Rorela to inform the said incident however, he was not at home and they told the incident to his daughter Ramnunmawii. Here his statement was contradicted by the statement of his friend wit No.7 Lalnunthar who gave evidence in the court and said, “…and we went to the house of Rorela who was in their house…we informed all the matters/incident to him (Rorelliana). Because of these contradictory evidences it is proved that both of them are unreliable witnesses. Court is not to make judgment on the basis of the statements of unreliable wits.

4. That P.wit No.5 stated in the cross examination that he saw the accused on the prosecutrix but he did not see the thigh of the prosecutrix. If this P.wit No.5 really saw that the accused was on the top of the prosecutrix and if the accused had really sexual intercourse. P.wit No.4 must see the thigh of the intercourse with the prosecutrix without removing her long part a petticoat or underpant it is not possible to have sex with a woman.

5. That besides, PW 7 Laldinthara had not stated that he saw the sexual inter-course of the accused and the prosecutrix.

6. That the unreliableness of PW 7 is proved when he stated that Rorela was in his house while the PW 5 stated that Rorela was in is house. These contradictory statements proved the unreliableness of these two P.wits.

7. PW No.6 Lalhlui, President, MHIP stated that she had received telephone call from Chuailovi w/o Hrilliana. In the cross examination PW No.6 stated that there were houses at a shouting distance from the PO. In such case the neighbours are supposed to know about the incident of this alleged rape. Besides, on the same day when they reached the house of Hrilliana

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F/o Prosecutrix the accused was also prevent there. This proved that the accused had no guilt consent and as such he was in the house of the father of the prosecutrix and this proved that the accused had not committed rape of the daughter of Hrilliana.

8. Personally she stated that she neither heard nor seen anything about the incident.

9. PW 7 Laldinthara‟s important statement is no longer necessary to repeat it as I have stated in para No.5 and 6 above.

10. PW 8 Lalkawltira stated I think the accused was trying to rape Lawmsangi and Lawmsangi was also crying. On cross examination said that both the accused and the victim were in full dress when he saw them. “I do not know whether they are doing anything”.

11. PW 9 Laltinpari stated in the cross examination while I was inside the rooms doors were open even before I enter the room. The alleged victim was also inside the room. Her statement does not hold water.

12. PW 12 Lucy Zosangzuali stated the father of the prosecutrix stated to her that his daughter was raped by Biakchungnunga S/o Dozika of N.Khawbung and she was endorsed the case to her for investigation. The prosecutrix told her (SI) that she was raped by the accused and Biakchungnunga was arrested and charged him U/s 376 92) (i) IPC. All her statements are secondary evidences or hearsay evidences.

13. PW 12 SI Lucy again stated that the medical report stated that the hymen was raptured. But she did not say whether the raptured was old or new. All what she knew are derived from other persons. She did not say who caused the rapture. Sport women always raptured their hymens.

In view of all the above evidences it is proved that there is no conclusive evidence that the accused had raped the victim. Page 12 of 14

In this instant case, the accused Biakchungnunga pleaded not guilty, his confessional statement is not recorded by the Magistrate as per provision of Section 164 CrPC the only confession what the Case I.O. stated is that on interrogating accused confessed that he grabbed the hand of Victim, pulled her of bed forcefully and lean upon her.

On careful perusal of the medical report of Victim, there was no any mark of violence in the body of Victim. The underwear of Victim was not changed and not washed, but the medical report revealed that No Spermatozoa seen from Smear of private part and underwear.

There was old sign of tear in the hymen. On careful perusal of the case record, the Victim stated before the Case I.O. that there was one person who was having sexual intercourse with her. She further stated that during the month of July, 2013, one Lalchhuanawma(18) s/o Hramliana of North Khawbung had sexual intercourse with her and she did not reveal that incident to her father as she was in fear of that person. From the statement of Victim and from the medical report, it was found that one Lalchhuanawma(18) s/o Hramliana of North Khawbung had raped the Victim several times. FIR was also submitted to the O/C, Champhai PS for registering a case against accused Lalchhuanawma of North Khawbung. The statement of Victim recorded by Case I.O. is collaborated with the statement of D-2, Kapchungnunga of North Khawbung, who stated that Victim used to have love affair with Maawma(Lalchhuanawma) and the prosecutrix was examined by Medical Officer. He reported that hymen was rapture as Biakchungnunga did not have any sexual intercourse with prosecutrix, I believed rapture of hymen of the prosecutrix was caused by Maawma, or some person, and once Maawma was accused of having had raped the prosecutrix and to avoid prosecution, Maawma gave Rs. 10,000/- to the father of prosecutrix and because of this rapture of the hymen of the prosecutrix should have been done by Maawma.

From the light of above statement of Victim recorded by the Case I.O and statement of Defence witness No.2, the hymen rapture of old sign tear of Victim, Page 13 of 14

can be presumed that was done by other person other than accused Biakchungnunga. It was reported to have been happened in the month of July, 2013 and the incident took place in the month of October, 2013 as the Medical Officer also stated in his Cross examination that the age of hymenal tear may be one month or one year or more. Even the prosecutrix did not stated that the accused penetrate his private part to her private part, and may accused lean on her, but some other person entered in their house.

However, the prosecution could not established a prima facie case u/s 376(2)(I) IPC against accused Biakchungnunga s/o Dozika, N. Khawbung, and failed to do so.

I therefore acquitted accused Biakchungnunga s/o Dozika of N. Khawbung from the liability of charge leveled against him u/s 376(2)(I) IPC and set him at liberty.

Seized articles if any shall be destroyed.

The case is disposed off.

Give copy of this order to all concerned.

Given under my hand and seal of this Court on this 28th day of April, 2016.

Sd/-VANLALMAWIA Addl. District & Sessions Judge Aizawl Judicial District,Aizawl. Memo No 98 /ADJ-I(A)/2016 : Dated Aizawl, the 28th April, 2016. Copy to: 1. District & Sessions Judge, Aizawl 2. Accused Biakchungnunga C/o R. Thangkanglova,Advocate. 3. Deputy Superintendent of Police (Prosecution). 4. Addl. P.P. 5. Judicial Section 6. Case record. 7. Guard file. PESHKAR Page 14 of 14