Michael Zothankhuma, J.(Oral) - Heard Mr. J.C. Lalnunsanga, counsel for the appellant as well as Mrs. Linda L. Fambawl, learned Addl.
Public Prosecutor.
2. The present appeal has been filed against the Judgment & Order dated 12.6.2015 passed by the Additional Sessions Judge, Aizawl in Session
Case No. 17 of 2014 under Section 376(1) IPC, by which the appellant has been convicted and sentenced to undergo R.I for 7 (seven) years and
to pay a fine of Rs. 1,000/-, in default, S.I for another 10 (ten) days.
3. The prosecution case in brief is that on 12.11.2013, the prosecutrix lodged an FIR to the effect that on the night of 11.11.2013 at around 8:00
p.m., the appellant had taken her to Mualvum Champhai and forcibly raped her in his vehicle.
4. The appellant''s counsel submits that the appellant could not have been convicted under section 376(1) IPC in view of the fact that at the time of
framing of charge, the appellant had been charged with sexually assaulting the prosecutrix. The appellant''s counsel thus submits that section 376(1)
IPC is not the applicable provision for punishing a person for committing sexual assault.
5. The appellant''s counsel also submits that there is contradiction in the colour of the under pant worn by the prosecutrix at the time of the incident.
He submits that while the prosecutrix and the seizure witnesses have mentioned that the underpant worn by the prosecutrix was red in colour, the
Doctor''s report is to the effect that the underpant was black in colour. The appellant''s counsel also submits that as per the evidence of the Doctor,
there was no injury on the body of prosecutrix and no spermatozoa was seen during the examination of the prosecutrix. The appellant''s counsel
also submits that the prosecutrix being a divorcee, was habituated to sex. He therefore, submits that the appellant could not have been convicted
for rape, as no rape was committed by the appellant.
6. Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor submits that there has been typographical error in the charge framed against the
appellant, as the words ""sexually assaulted"" appearing in the charge framed against the appellant should be read as ""rape"". The Addl. Public
Prosecutor submits that a perusal of the evidence and the records of the case shows that the appellant had raped the prosecutrix and the mistake
committed by the Trial Courts in not recording the word ""rape"" does not mean that rape was not committed. The Addl. Public Prosecutor submits
that unintentional discrepancies and errors made by the Trial Court cannot be constituted to mean that rape was not committed by the appellant.
7. I have heard the learned counsels for the parties.
8. There is no eye witness to the incident. The evidence of the prosecutrix has been made the basis of the conviction of the appellant. The evidence
of the prosecutrix is reproduced below :-
I do not know the accused Vanlalnghaka prior to the incident. I engaged myself in the business of herbal cosmetics and medicine and travelled to
different places such as Chawngte, Tlabung, Khawzawl etc. I do not a specific time for such travel. I was born on 9.8.1992.
I do not remember the exact date but it was around the general State Assembly Election I have gone to Champhai from Khawzawl in connection
with my business. One friend namely Labawihi was with me but she was travelling for election campaign. I had gone to Champhai to return back at
night (Langin). Myself and my said friend were both making plans to return together by the same vehicle in the evening but we missed the said
vehicle which was also engaged in election campaign. The said vehicle left at around 3:00 P.M. whereas they told us that they leave by 4:00 P.M.
that is why we missed the vehicle. My said friend then asked me to go with her to meet her boyfriend. So we made her boyfriend around 7:00
P.M. the boyfriend of my said friend told me that I should give sometime to them alone. As I did not know where to go I though of living behind
my friend and waited for vehicle to go back to my village. At that time I stood infront of a Sumo counter at Champhai. After I stood there for quite
sometime the accused drove passed in his Taxi. While I stood infront of the Sumo Counter no other vehicle passed by no other vehicles were
parked nearby. When the accused drove passed, he stopped his Taxi and asked where I was going by saying ""Mami khawiahnge I kal dawn"" to
which I stated that I am waiting for a Sumo to go to Khawzawl to which he stated that at such time I would not find the Sumo and he suggested me
a place from where I could find transportation back home. So I asked him to take me to the said place for Rs. 100/- as Taxi fare as he accepted I
boarded his Taxi. However, as he began to drive in a direction different from where he described earlier I asked him where he was heading to
which he stated that he was taking a short cut route. So the accused drove his Taxi towards Mualbuhvum. He stopped his vehicle below
Muallbuhvum on the road side and inside the taxi and tried to sexually assault me and said ""Tlan chhuah I tum chuan ka that ang che"" meaning if
you try to escape I will kill you. I saw one vehicle passing by. At that time I made an excuse to the accused that I wanted to pass urine and went
outside the vehicle. I shouted but the persons in the vehicle which passed by did not hear me. By that time the vehicle had already moved towards
the hill top whereas the taxi was below the hill (Tlang pawng thlang). At that time the accused came out and pull me inside the taxi, he reversed his
taxi and took me at a farther distance which is not known to me. At that time he once again said he was going to have sexual intercourse with me. I
cannot recollect everything what was said by the accused but at that time I was very scared and I was severing. Ultimately the accused sexually
assaulted me inside the taxi by reclining the seat. While he committed the act upon me I did not should but I was crying. Au vak vak mah ila tumah
an awm chuang lo a, ka hlau lutuk a ka dawh tawp (meaning even if I shouted there was no one around and I simple submitted myself as I was
very scared) Thereafter the accused took me inside Champhai town and I saw some three or four autorickshaw and I got down at the said place. I
also asked the accused for his mobile phone number and he gave it to me. I asked the auto driver how to go to Kahrawt veng Champhai and I
also asked them to use their mobile phone. At that time I made a phone call to my friend Labawihi but I could not tell her the place where I was so
the auto driver spoke to my said friend I waited my friend at the said place and I was picked up by Labawihi''s brother in law. Mapuia (brother in
law of Labawihi) is the first person I informed about the incident. I told him that I wanted to lodge FIR. I spent the night in the house of Mapuia
with Labawihi. On the next day, after morning meal I lodged FIR to Champhai P.S. My verbal information reduced into writing. I was taken to the
Hospital after I lodged the FIR. The doctor who examined me did not ask me many question. The Police recorded my statement. The Police
seized my underpant and a small piece of cloth which I had used to wiped my private part. After the incident, the accused made me washed myself
and it was thereafter that I wiped my private part with the said cloth.
9. Section 211 Cr.P.C. requires that every charge under the Cr.P.C shall state the offence with which the accused is charged and if the law which
creates the offence gives it any specific name, the offence may be described under the charge by that name only. In the present case, the
punishment mentioned in the charge is Section 376 (1) IPC. The same is punishment for rape and not for sexual assault. The charge framed against
the appellant does not show that he has violated any provisions regarding rape. The error in mentioning ""sexual assault"" instead of ""rape"" does not
amount to giving sufficient notice to the appellant to the manner in which he has been charged, as required under Section 213 Cr.P.C. However,
the records of the case do not show that the appellant has been misled by the error or omission in not mentioning the word ""rape"" and by instead
mentioning the word ""sexual assault"" in the charge framed against the appellant. The evidence of the prosecutrix is also to the effect that she was
sexually assaulted. However, a reading of the entire evidence indicate that the prosecutrix wanted to state that rape was committed. However,
recording the words ''sexually assaulted'' seems to suggest an error has occurred at the time of recording the prosecutrix evidence.
10. On perusal of the charge framed against the accused appellant, I find that the appellant has been charged with sexual assault and not rape. In
view of the above, I am of the view that the appellant could not have been convicted of rape as no charge for rape has been made out against the
accused at the time of framing of charge. However, error made in the charge framed against the accused and the other evidences adduced implies
that rape has been committed by the appellant.
11. At this stage, Mr. J.C. Lalnunsanga, counsel for the appellant and Mrs. Linda L. Fambawl, Addl. Public Prosecutor submits that the case may
be remanded back for denovo trial after a fresh charge is framed against the appellant as permissible in law.
12. In view of the consent of the parties, this appeal is remanded back to the Trial Court for framing charge afresh against the appellant and having
a denovo trial which would also enable the appellant to produce any defence witnesses, if any. Consequently, the judgment and order dated
12.06.2015 passed in Session Case No. 17/2014 under Section 376 (1) IPC is hereby set aside. Any observations made by this Court should not
influence the Trial Court proceedings.
13. Appeal is accordingly disposed of.
14. Send back the LCRs.
