SH. MOHINDRO LIMBU Vs. STATE OF MIZORAM

JUDGEMENT

(1.) AFTER hearing Mr. Zochhuana, the learned Amicus Curiae, Mr. A.K. Rokhum, learned Public Prosecutor appearing for the State respondent, it becomes obvious that the question to be determined in this criminal appeal has now boiled down to this: whether the prosecution has been able to prove beyond reasonable doubt that Miss Lalpianruali, the victim girl, was below 12 years of age at the time of the commission of the rape upon her by the appellant. The factual background leading to the filing of this appeal may be noticed at the very outset. The case of the prosecution is that on 14.09.2009 a written FIR was lodged by one Lalropuii, w/o Mohindro Limbu of Mamit stating that on the morning of 12.09.2009, she caught her husband, Mohindro Limbu and her daughter, 12 years in a compromising position inside her house at Hmunsam veng. When she took her daughter to task, her daughter revealed that the said Mahindro Limbu, who is none other than her step father, had been sexually exploiting her since the year 2007 and had also been threatening her with dire consequences if she discloseed these facts to anyone. On the basis of this complaint, the police registered Mamit P.S. Case No. 15/09 dated 14.09.2009 under Sections 376(2)(f)/506(b) IPC and duly investigated into the case. On completion of the investigation, the appellant submitted the charge sheet and sent the appellant to stand the trial. The trial court, on the basis of the charge sheet so filed, framed the charges against the appellant under Sections 376(2)(f) and 506 Para II IPC, to which he pleaded not guilty and claimed to be tried. The trial court thereafter proceeded with the trial and in the course of trial the complainant, her mother and the medical officer as well as the I.O. of the case were examined to substantiate the charges against the appellant: some documents were also exhibited to prove the charges. At the conclusion of the trial, the trial court passed the judgment and order dated 12.11.2010 convicting the appellant under section 376(2)(f)/506 Para II IPC, sentencing him to undergo R.I. for 10 years for the offence of rape and another 2 years of R.I. for the offence of criminal intimidation. Aggrieved by this, this appeal is filed by the appellant from jail.

(2.) MR . Zochhuana, learned counsel for the appellant submits that though the appellant was charged under section 376(2)(f)/506(b) IPC, the prosecution has miserably failed to prove that the victim girl was less than 12 years of age at the time of the commission of the crime and that the victim girl was threatened with dire consequences by the appellant. Drawing my attention to the progress report of the victim girl prepared by the Government Mamit High School (Ex M -1), the learned counsel submits that the documentary evidence, the veracity whereof is not questioned by the prosecution, indicated the date of birth of the victim girl as 25.12.1996 and when the charge against the appellant for rape was framed for the incident occurring on 12.09.2009, it becomes evident that the victim girl was above 12 years of age at the time of the incident or, at any rate, was not under twelve years of age. He thus argues that as there is no evidence on record to substantiate the charge against the appellant that he was committing rape upon a girl under 12 years of age, he cannot obviously be convicted under section 376(2)(f) IPC, which is an aggravated form of rape. He further submits that none of the prosecution witnesses made any whisper of statements in their depositions that the appellant has ever intimidated the victim girl at any time and as such the charge of criminal intimidation under section 506 IPC falls to the ground. According to the learned counsel, the appellant will be satisfied if his conviction is altered to one under Section 376(1) IPC and award a lesser punishment on the basis of the available evidence on record. On the other hand, Mr. A.K. Rokhum, the learned Public Prosecutor, supports the impugned of conviction and sentence and submits that no interference is called for against the findings arrived at by the trial court which does not suffer from any infirmity.

(3.) AT this stage, it may also be noted that though some statements were made by submission that the appellant started having sexual intercourse with the victim girl from 2007 onwards, no charge was framed by the trial court in this behalf and allegations made, for which no charge was framed cannot be taken into account for holding that the victim girl was raped by the appellant in the year 2007 when she was under 12 years of age. Thus, on the evidence adduced by the prosecution, the prosecution has miserably failed to prove that the victim girl was under 12 years of age at the time of the commission of the rape upon her, for which the charge was framed. Consequently, I unhesitatingly hold that there is no evidence against the appellant for the offence under Section 376(2)(f) IPC. However, on the basis of the evidence available on record, there is sufficient evidence to hold that the appellant has committed rape upon the victim girl for the offence punishable under section 376(1) IPC, for which a lesser sentence is called for. Similarly, there is also no evidence to substantiate the charge of criminal intimidation against the appellant and, as such, he cannot be convicted under section 506 Para II IPC. Under the circumstances, the appellant is liable to be convicted only under section 376(1) IPC. The result of foregoing discussion that this appeal is partly allowed. The conviction of the appellant under section 376 (2)(f) IPC is hereby set aside. He is, however, convicted under section 376(1) IPC and is sentenced to rigorous imprisonment of 7 years with a fine of Rs. 5000/ - , which shall be paid to the victim girl within 2 (two) months from today and, in default thereof, to undergo a simple imprisonment of two months. The appellant is, however, acquitted of the charge under section 506 Para II IPC. The impugned judgment and order is modified in the manner and to the extent indicated above. The appellant shall serve out the remaining period in the jail. Transmit the LCR forthwith. Mr. Zochhuana, learned Amicus Curiae shall be paid Rs. 10,000/ - (Rupees ten thousand only) by way of fees by the Mizoram State Legal Service Authority.