BONGPHA @ PHONGPHA v. THE STATE OF NAGALAND

Heard Mr. M. Jamir, learned counsel for the appellant, and also heard Mr. K. Angami, learned Public Prosecutor, for the State of Nagaland.

In this appeal, under section 374(2) Cr.P.C., the appellant - Mr' Bongapa @ Phongpha, has put to challenge the judgment and order, dated 19.03,2019, passed by the learned Sessions Judge, Dimapur, Nagaland in Sessions Case No. 43120t4, corresponding to G.R' Case No.501/2013, under Section 376 IPC.It is to be noted here that vide impugned judgment and order, dated 19.03.2019, the learned court below has convicted the appellant, under section 376 (2) (i) IPC and sentenced him to suffer rigorous imprisonment for 10 years and also to pay a fine of Rs.500/ with default stipulation.

The background facts, leading to filing of the present appeal, under section 374(2) Cr.P.C. is adumbrated herein below:- "On 03.09,13, at around 5:30 PM, while the victim Smti. X (name withheld) was taking bath in her house, situated at Ward No. 6, Chumukedima, accused Bongpha came near her and pushed her from behind. She then raised alarm and the accused then went away. She then went inside the house thinking that the accused might have gone away. But, after few minutes, accused came again when she was dressing up inside her room. The accused then pushed her and laid on the floor and committed rape upon her. She had shouted, but, no one was there to rescue her. On the next day she had repofted the matter to her mother. The mother then called the informant -Ms. e Kennyisha and discussed the matter with her and decided to report the matter to police, Accordingly, Ms. Kennyisha had lodged an FIR with the O/C Diphupar Police Station on 5h September 2013, upon which the O/C Diphupar Police Station had registered a case, being Diphupar P.S. Case No. 8412013, u/s 376(1) IPC and endorsed ASI Yawao Bolem to investigate the same. The LO, then visited the place of occurrence, examined the witnesses, and got the victim examined by Doctor and collected the report and arrested the accused and forwarded him to the court. Then on completion of investigation, the I.O. laid charges sheet against the accused/appellant to stand trial in the couft under section 376(1) IPC. On commitment of the case to the Court of sessions, by the learned Chief Judicial Magistrate, Dimapur, the accused/appellant entered appearance before the learned Sessions Judge, Dimapur. Then the learned Sessions Judge, Dimapur, after hearing both sides, had framed charge against the accused/appellant under sections 376(2)(i) IPC and on being read over the accused/appellant pleaded not guilty and claimed to be tried. The prosecution side then had examined as many as 7 witnesses, including the M.O. and I.O. and thereafter, hearing arguments of both sides, found the charge under section 376(2Xi) well established and convicted him accordingly, and thereafter, hearing him on the point of sentence, sentenced him as aforesaid. "

Being highly aggrieved and dissatisfied with the aforesaid judgment and order, the appellant has preferred this appeal, and contended to allow the same on the following grounds :- a til That, the learned court below has failed to apply its judicial mind and overlooked the Medical Report of the victim and the report of the FSL which gave negative test for spermatozoa and that spermatozoa present up to 3 days after the intercourse and occasionally up to 6 days; tiil That, the learned court below had chooses not to examine the lunior Scientific Officer of FSL, who had examined the vaginal swab of the victim; tiiil That, the learned court below had failed to appreciate that the victim is a mentally retard and dumb person and without taking the help of independent/professional interpreter had examined her and inspite of absence of corroboration from independent witnesses believed her version; tivl That, the learned court below had failed to appreciate the medical report in lts proper perspective, which indicates no sign of physical struggle and that mild discharge indicates infection that lead to reddening of the vulva, which alone cannot be taken as a ground for forced intercourse, and that the factum of old torn hymen indicates that she was accustomed to sexual intercourse and to that extend the medical report is contradictory wherein the Doctor opined that the victim was not accustomed to sexual intercourse; tvl That, the learned court below has failed to consider the submissions of defence counsel and relied upon evidence of those witnesses who were not present at the time of occurrence G and the impugned judgment and order is against the settled principles of criminal jurisprudence; [vi] That, the impugned judgment and order is based on circumstantial evidence and surmise and conjecture and is perverse and is based on no legal evidence;

Mr. M. Jamir, learned counsel for the appellant has canvassed following points for consideration of this court at the time of hearing,:- (i) That, the learned court below, in the impugned judgment and order, solely relied upon the evidence of the victim, who is a mentally retard person as per evidence of the Doctor and that there is no materials to suggest that the learned court below had taken the help of expert while recording her evidence and the learned court below is not expeft in that line and on such count the evidence of victim cannot be relied upon; (ii) That, the evidence of the Doctor reveals that he found no sign of struggle on the person of the victim and as such her evidence is highly improbable; (iii) That the learned couft below has failed to consider that the hymen of the victim was found to be old torn, which indicates that she is accustomed to sexual intercourse and as such the finding of the Doctor cannot be used against the appellant; (iv) That the statement of the victim under section 164 Cr.p.C also not supported the version of the victim and that the case of the prosecution is highly improbable; a)q,

These points/circumstances, according to Mr' Jamir, have cast serious doubt about the very sustainability of the judgment and order of the learned court below and therefore, it is contended to set aside the impugned judgment and order. Mr. lamir also referred following decisions of Hon'ble Supreme Court in support of his submission. (i) Raju and Others vs. State of Madhya Pradesh, reported in (2008) 15 SCC 133; (ii) Sadashiv Ramrao Hadbe vs. State of Maharashtra and Another, reported in (2006) 10 SCC 92; (iii) Rai Sandeep @ Deepu vs. State (NCT of Delhi), reported in (2012) 8 SCC 21; (iv) State of Rajasthan vs. Darshan Singh @ Darsan Lal, reported in (2012) s SCC 789; (v) Sadashiv Ramrao Hadbe vs. State of Maharashtra, reported in (2006) 10 scc 92 (vi) Krishna Kumar Malik vs. State of Haryana, reported in (2011) 7 SCC 130; (vii) Munna vs. State of Madhya Pradesh, reported in (2014) 10 SCC 254;