1 IN THE COURT OF ADDITIONAL SESSIONS JUDGE AIZAWL JUDICIAL DISTRICT, AIZAWL, MIZORAM. Present : Shri Vanlalenmawia, MJS Additional Sessions Judge, Aizawl Judicial District, Aizawl. Sessions Case No. 17 of 2014 State of Mizoram ………..Complainant -Versus- Shri Vanlalnghaka (40) S/o Lalengmawia, R/o Champhai Venglai, Champhai District, Mizoram. ..……… Accused person APPEARANCE For the State : Shri Joseph Lalfakawma, Addl. P.P. Smt. K. Lalremthangi, Asst. P.P. For the accused : Shri J.N.Bualteng, Advocate. Hearing : 8.4.2015 & 28.5.2015 Judgment delivered on : 10.6.2015 Sentence Hearing : 12.6.2015 Order delivered on : 12.6.2015 J U D G M E N T The accused has been prosecuted in connection with the offence of rape punishable under Section 376 (1) of IPC. 2. The prosecution case is that on 12.11.2013 at about 2:30 Pm the prosecutrix lodged a written First Information Report to the effect that on the night of 11.11.2013 at around 8:00 Pm, one Taxi Driver who was known as Nghaka had 2 taken her at Mualbuhvum, Champhai and forcibly raped her in his vehicle. Hence, CPI P.S. Case No. 171 of 2013 dated 12.11.2013 under Section 376 (1) of IPC was registered against the accused and duly investigated into. In the course of investigation, the P.O. was visited but no clue was found at the P.O. The prosecutrix was thoroughly examined and her statement was recorded. It was stated by the prosecutrix that she had saved the name of the Taxi driver as Ngkaka in her Mobile Phone. The Taxi drivers of Champhai Town were contacted and examined over telephone. On examining them, they came to know that the Taxi driver who had raped on the night of 11.11.2013 was Vanlalnghaka s/o Lalengmawia of Venglai, Champhai. One under-pant worn by the prosecutrix at the time of incident was seized in the presence of reliable witnesses and their statements were recorded. The seized article was kept at Champhai PS Malkhana vide MR No. 142 of 2013 and sent to Court. The prosecutrix with the seized under-pant was forwarded to the Medical Officer of District Hospital, Champhai for medical examination. On the Medical Examination report, the hymen of the prosecutrix was absent/rapture and no injury mark was found on her external genitalia and no spermatozoa were seen under microscopic examination. The police got information from the prosecutrix that she had washed her private part just after she was raped. According to the police, this might be the reason why spermatozoa were not seen in the laboratory examination. The accused was arrested on 12.11.2013 and he was thoroughly interrogated. On interrogation, the accused admitted his guilt before the police stating that on the night of 11.11.2013 at around 7:00 Pm, when the prosecutrix had wanted to go to Khawzawl, he told that he would drop her at Khankawn Police Check Gate so that she could get vehicle to go to Khawzawl. But, the accused took the prosecutrix towards Mualbuhvum, Champhai by his vehicle (Taxi bearing registration No. MZ-04/4595) and forcibly raped her in his Taxi. The statement of the Taxi driver was recorded. The vehicle of the accused was checked but no clue was found since the accused had already cleaned the vehicle. A prima facie case under Section 376 (1) of IPC was found well established against the accused. Hence, the Case I.O. submitted charge sheet. 3. The accused person was produced before the learned Chief Judicial Magistrate, Champhai District. The case was committed to the learned Sessions 3 Judge since it is triable exclusively by Court of Session. Thereafter, the case was transferred to my predecessor for trial and disposal. 4. Charge sheet and its relevant documents were supplied to the accused. Shri J.N.Bualteng, Advocate was appointed to defend the accused at the expense of the State. 5. After hearing the rival parties and on finding a prima facie case against the accused, charge was framed against him under Section 376 (1) of I.P.C. The charge was read over and explained in the language known to him, to which he pleaded not guilty and claimed to be tried. 6. In order to bring home the charge, the prosecution produced and examined as many as five out of six witnesses to prove that the accused had committed offence punishable under Section 376 (1) of I.P.C. The plea of defence is of total denial except that the victim boarded in his Taxi on that night. After closure of the prosecution evidence, the accused was examined under Section 313 of Cr PC. The accused produced two defence witnesses. 7. I heard the learned Addl. Public Prosecutor Shri Joseph Lalfakawma appearing for the State assisted by the learned A.P.P. Ms. K.Lalremthangi. I also heard the learned Counsel Shri J.N.Bualteng appearing for the accused. 8. According to the learned Addl. P.P. Shri Joseph Lalfakawma, the prosecution proved the charge framed against the accused under Section 376 (1) of IPC beyond reasonable doubt. He submitted that the deposition of the prosecution witnesses were trust worthy and their statements formed concrete evidence which proved the charge. 9. On the other hand, the learned Counsel Shri J.N. Bualteng contended that the testimony of the prosecutrix is not trustworthy and cannot be relied upon for recording conviction against the accused under Section 376 (1) of IPC. In his view, the prosecution failed to disclose that the place of incident is a secluded area. It is also his view that the victim was not threatened by the accused since no weapon was not recovered and since the victim did not disclose anything about the incident 4 to a person whom she first met at the auto-stand. According to the learned Counsel, the prosecution story is a concocted one. The learned Counsel submitted that the expert witness had not found any injury after thorough examination on the victim’s body except the tender scar due to her earlier operation. He cited the decision the Hon’ble Rajasthan High Court in Jogi Dan v. State of Rajasthan, 2004 Cri 1726 at 1731 (Raj) which held, Ordinarily, where forcibly sexual intercourse is committed there would be injury on the person of the victim. Absence of any injury on the person of a woman alleged to have been raped may go a long way to indicate that the alleged intercourse was a peaceful affair and the story of a stiff resistance put by the prosecutrix is false or an afterthought. He further cited the decision of the Apex Court in Sharad Birdchand Sarda v. State of Maharastra 1984 (4) SCC 116 which held that “…..it is a well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view…” He also cited the decisions in Narendra Kumar v. State (NCT of Delhi) Criminal Appeal Nos. 2066-67 of 2009 and in Bhagwan Singh v. State of M.P. (2002) 4 SCC 85. P O I N T S FOR D E T E R M I N A T I O N: 10. a) Whether the prosecution proves that accused Vanlalnghaka committed rape upon the victim on the night of 11.11.2013 in a vehicle (Taxi) bearing Registration No. MZ-04/4595 driven by him? b) Whether the accused can be convicted under Section 376 (1) of IPC? 11. D is c u s s i o n, D e c i s i o n & R e a s o n s T h e r e o f : P.W. 1, who is the victim and the complainant, identified the accused. She was dealing in herbal cosmetics and medicine and sold to different places, such as Chawngte, Tlabung and Khawzawl, etc. The time of occurrence happened during the general State Assembly Election. She went to Champhai from Khawwzawl for her business. One friend namely Lalbawihi accompanied her participated in election campaign. Both the friends went to Champhai and to return on that night by the vehicle engaged on election 5 campaign. They missed the vehicle, as it left earlier at around 3:00 Pm than the time of departure, which they were told to leave by 4:00 Pm. Her friend invited to meet her boy friend and met him at around 7:00 Pm. As the boyfriend requested her to give them a chance, she thought of leaving her friend for Khawzawl and stood in front of a Sumo counter. After sometime, the accused came by his taxi asking her where she would go, to which she replied that she was waiting for a vehicle (Sumo) for Khawzawl. The accused told her that she would not find the vehicle at that place, but he would take her to the place where she would get a vehicle for Khawzawl. The victim was ready to pay the Taxi fare for Rs.100/-, which the accused also accepted. The accused began to drive in a direction different from that. She asked him where he was heading to which he stated that he was taking her through a short cut route. The accused then drove his Taxi towards Mualbuhvum. He stopped his vehicle below Mualbuhvum on the road side and tried to sexually assault her inside the taxi and said “Tlan chhuah i tum chuan ka that ang che” (meaning if you try to escape I will kill you).