S.H. KAPCHEMA Vs. STATE OF MIZORAM

JUDGEMENT

(1.) This criminal appeal is preferred by the convict, Kapchema alias Pachema from jail custody, forwarded by the Superintendent of District Jail, Lunglei, who is suffering sentence in connection with Crl. Tr. No.326/2008 U/S 376(2)(f)/511 of IPC, the judgment and order of conviction and sentence dated 10.06.2011, passed by learned District & Sessions Judge, Lunglei, whereby he was sentenced to suffer RI for 3 years and a fine of Rs.2,000.00, in default of payment, to suffer SI for 2 months.

(2.) Since it is a Jail appeal filed by the convict, learned counsel, Mr. Lalfakawma was appointed as Amicus Curiae to assist this Court in the disposal of appeal and to argue the case on behalf of the appellant. I have heard learned Amicus Curiae for the appellant and learned Addl. P.P., Mr. Lalsawirema for the State respondent.

(3.) Brief fact, leading to the criminal trial against the appellant is that on 12.12.2008 the informant, Lalmalsawma(PW.1) and his wife, Zozamluaii(PW.3) went out of their house for jhum cultivation leaving their three children of whom the eldest one was seven years old in the house, asking Lalhriatpuii(PW.4), the cousin sister of Zozamluaii(PW.3) to take care of the children and the children were playing in the neighbourhood. At about 3.30/4 pm, the accused Pachema alias Kapchema allured the prosecutrix(name kept withheld), the girl aged about five years(PW.2), the daughter of PWs.1 and 3 that he will give rupees ten to her to purchase something eatable and taken her away in an abandoned place and put off her pants and then took her on his lap, opened his trouser and pressed his penis in the vagina of the prosecutrix and, as a result, the prosecutrix felt pain. The accused again took her to a different place and again pressed his penis in her vagina and also inserted the penis in her mouth and asked her to swallow it. Thereafter, the accused left her near the house of PW.4. The prosecutrix did not disclose the fact on that day but she vomited during night time as the accused did oral sex with her. On the following day i.e. on 13.12.2008, on query by PWs.1 and 3, the prosecutrix narrated the occurrence wherefrom she got the money and the act committed by accused and, immediately thereafter, PW.1 lodged FIR with the O/C Lunglei P.S. and accordingly Lunglei P.S. Case No.231 dated 13.12.2008 U/S 376(2)(f) of Penal Code was registered and investigation was taken up. On that very day itself, in course of investigation, the prosecutrix was examined by PW.7, the Medical Officer in the Civil Hospital, Lunglei and report was collected by I.O. The prosecutrix was produced before the Magistrate, 1st Class, Lunglei for recording her statement under Sec. 164 of Crimial P.C. on 15.12.2008 and her statement was recorded. On completion of investigation, police submitted charge sheet against accused Kapchema @ Pachema for commission of offence punishable U/S 376(2)(f)/377 of IPC.