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Gauhati High Court · body

2015 DIGILAW 72 (GAU)

H. Lalthangliana v. State of Mizoram

2015-01-27

L.S.JAMIR

body2015
JUDGMENT : Heard Mr. Victor L. Ralte, learned Amicus Curiae for the appellant as well as Mr. A. K. Rokhum, learned Public Prosecutor for the State of Mizoram. 2. This is an appeal against the judgment and order dated 11.09.2014 passed by the learned Additional Session Judge, Lunglei Judicial District, Lunglei Mizoram in Criminal Trial No. 63 of 2014 under Sections 354/ 376 (2) (1) of IPC whereby the appellant/ accused was convicted and sentenced to undergo R.I for 3 years and to pay a fine of Rs. 1000/- only and in default S.I for 10 days under Section 354 of IPC. 3. On 11.2.2014, an FIR was lodged before the office in-charge Thingsai Police Station, Lunglei District, Mizoram by the mother of the victims stating that her two daughters namely Lalrammuanpuii (10) and Ngurnun-sangi (8) were molested by her husband Thangliana, Serlui in and around February 2013 while they were divorced. He had forcefully made them touch his private part and he even touched their private parts. Her daughters revealed about this incident and being angered by it, she requested for necessary action against the accused as per the law of the land. Basing on the FIR, Thingsai P.S. case No. 2 of 2014 dated 11.2.2014 under Section 354 (A), IPC was registered. Investigations thereafter proceeded and on completion of the investigation, charge-sheet was submitted. Trial commenced before the trial Court. During trial, 6 prosecution witnesses were examined along with one Court witness and one defence witness. The accused was also examined under Section 313, Cr. P.C. After hearing the parties, learned trial court had passed the aforesaid impugned judgment and order. 4. For appreciation of the case in hand, the depositions of the witnesses are examined afresh. PW 1 is the complainant. She stated that she was married to the accused in the year 2001 and they have 5 children including the two victims. Several divorces took place between them and the last divorce took place sometime in the month of January 2014 and at present, she is staying in her mother s residence. When the divorce had taken place in the month of January 2013, her younger son stayed with her and the rest of the children stayed with the accused. In the month of February 2014, during divorce, she told her daughters (victims) to stay with their father at his residence. When the divorce had taken place in the month of January 2013, her younger son stayed with her and the rest of the children stayed with the accused. In the month of February 2014, during divorce, she told her daughters (victims) to stay with their father at his residence. However, one of the victims i.e. the younger daughter refused to stay with her father alleging that her father used to insert his finger into her private part and used them to touch his private parts. If the victims did not allow her father to act, then her father used to punish them by putting them in the bathroom. The elder victim also told her the same thing. As soon as she came to know about it, she had submitted the FIR to the office-in-charge of Thingsai Police Station and she stated that the delay in submitting the FIR was due to the late receipt of complaint from her daughters. In cross-examination, she denied the suggestion that she had deposed falsely in the court. 5. PW 2 is the elder victim who was aged about 11 years. Considering her age, questions were put by the court to the elder victim to which she replied that her father would make her touch his private parts and when she refused, he would threaten to beat her up or hang her. In one occasion, she declined and he asked her elder brother to search for a rope to hang her. In one occasion, he had even tied her up outside their house. He would also touch her private part and insert his finger in it and he would do the same to her sister (younger victim) and if they refuse, he would even lock them up inside the bathroom. They did not dare to tell others as they were scared that their father would beat them up. Her father would not cease to molest them even when he is sober and he also declared that he would be the first person to sleep with them when they grow up by taking their virginity. In cross-examination, the victim has denied the suggestion that she has deposed falsely before the Court. 6. PW 3 is the younger victim who was aged about 8 years. In cross-examination, the victim has denied the suggestion that she has deposed falsely before the Court. 6. PW 3 is the younger victim who was aged about 8 years. On the question put to her by the court, she stated that their parents had been divorced many times and her father used to drink alcohol and that she stays in her paternal aunt s residence for quite sometime. She stated that she told her mother that her father used to touch her private parts. She also stated that her father would let her touch his private parts when he cannot urinate. PW-3 further stated that she exaggerated about father inserting his fingers deep inside her private parts and that it was her grandfather who had told her to lie in that regard. In cross-examination, she deposed that her grandfather s name is Zahnuna and that she has not deposed falsely in the Court. 7. PW 4 is the medical Officer who had conducted the examination. He deposed that on 11.2.2014 the 2 (two) victims were brought before him while he was performing duty at Primary Health Centre, Cherhlun. On requisition made by the Police, he examined the elder victim at about 3 p.m. and the younger victim at about 3:30 p.m. on the same day. He examined their clothes and found no incriminating sign and also did not find any injury on the bodies. He also stated that he examined their private genital region and found no injury and their hymens were found intact and that spermatozoa was also not found. The victims appeared sound in mind and that there was no evidence of recent injury or violence physically and sexually. Cross-examination was declined by the defendants and to a question put by the Court, he stated that deep penetration into the private parts of the minor girls is not possible but slight penetration is possible to the extent of ½ Cm. 8. PW 5 is the IO of the case. He stated in examination-in-chief that on 11.2.2013, the complainant had submitted an FIR and on reciept of the FIR, Thingsai Police Station Case No. 2/2014 dated 11.2.2014 was registered and thereafter he took up the case for investigation since there was no other Officer present at that time. During investigation, he visited the place of occurrence and examined the informant and recorded her statement. During investigation, he visited the place of occurrence and examined the informant and recorded her statement. The victims were brought to the Police Station and after examining them, he recorded their statement. He forwarded the victims to the Primary Health Centre, Cherhlun for medical examination and arrested the accused. After interrogating and recording the statement of the accused, he sent him to the CJM, Lunglei for Judicial remand. He recieved the medical report from the Medical Officer, Primary Health Centre, Cherhlun region. The victims were sent before the Judicial Magistrate First Class Lunglei, to record their statement under Section 164, Cr. P.C. He also stated that the investigation revealed that the accused forced the victims to touch his private parts and he also inserted his finger in their private parts. Thereafter he submitted charge-sheet against the accused. In cross-examination, he stated that he did not see any abnormal appearance of the minor victims and that he has not deposed falsely in the Court. 9. PW 6 is the Judicial Magistrate First Class, Lunglei who had recorded the statement of the victims pursuant to the endorsement made by the CJM, Lunglei. 10. The accused was also examined as DW-1. In his examination-in-Chief, he stated that he got married to Saihlupuii and they have 5 children. He stated that divorce took place between him and his wife for several times and his wife had divorced him again sometime in the month of January 2013 and he also stated that divorce might have even taken place sometime in the month of January 2014. He used to tell his son and the 2 (two) victims to hold his private parts but he did not touch nor insert into the private parts of the 2 victims (at this stage, the accused was laughing). Once he had told his son to punish her daughter i.e. the elder victim. His son kept her in the bathroom. All his children and his ex-wife left him after the divorce, sometime in the month of January 2014. However, his son came back and stayed with him for 2 days and the younger victim and another daughter stayed in the residence of his parents during his detention in District Jail. After being released on bail, his daughter Lalpekhluii and Lalhmangaihawma stayed with him in his residence. The younger victim has been staying with her aunty at Lunglei. However, his son came back and stayed with him for 2 days and the younger victim and another daughter stayed in the residence of his parents during his detention in District Jail. After being released on bail, his daughter Lalpekhluii and Lalhmangaihawma stayed with him in his residence. The younger victim has been staying with her aunty at Lunglei. He stated that his wife filed a baseless complaint against him and he did not have any sexual intention with his children but since he had urinary problem he told his children to hold his private parts. In cross-examination, he deposed that he could not produce medical report about his urinal problem before the Court since he has lost it. He also deposed that he did not touch the private parts of his daughter (he was laughing) and that it is a fact that the 2 victims stayed with him at the time of the alleged incident. He also stated that it is a fact that he used the victims to touch his private parts. He also admitted that he punished his daughter (elder victim) by keeping her in the bathroom since she refused his orders and that he used to threaten his daughters (victims). He admitted that he is a heavy liquor drinker and that it is not correct that he has deposed falsely in the Court. 11. The District Child Protection Officer, Lunglei was also examined as a Court witness and in his deposition, he stated that on 10.2.2014, he received a complaint from the complainant mentioning that her 2 biological children were sexually assaulted by their father who is the accused in the present case. On receipt of the complaint, he examined the complainant i.e. mother of the two victims and he found the children of the accused to be unsafe and he was also afraid of sexual assault as the accused has been released on bail. He, therefore, requested for cancellation of the bail of the accused. 12. Mr. On receipt of the complaint, he examined the complainant i.e. mother of the two victims and he found the children of the accused to be unsafe and he was also afraid of sexual assault as the accused has been released on bail. He, therefore, requested for cancellation of the bail of the accused. 12. Mr. Victor L. Ralte, learned Amicus Curiae appearing for the appellant submits that in the deposition of the victims, more particularly the younger victim i.e. PW 3, it can be seen that she has stated that she had exaggerated while making the statement before the Magistrate with regard to the accused inserting his finger deep inside her private parts and that it was on the instigation of her grandfather Mr. Zahnuna that she had made such false statement. He also submits that there is no clear indication that keeping the victim in the bathroom was due to the fact that they had refused to comply with the demands of the accused. He also submits there was no thread made by the victim father. He further submits that the victims are both minor children and therefore they can be easily tutored or even coerced by way of threat or otherwise in order to make them depose before the magistrate or before the Court in the manner that is preferred by the family members of the complainant i.e. wife of the accused. Thus considering their age, and more particularly considering the statement made on oath before the trial Court by the PW-3, there is an air of suspicion thus making PW-2 and PW-3 to be unreliable witnesses. The PWs 1, 2 & 3 are also interested parties to the case and the rest of the other prosecution witnesses are all here say witnesses and therefore the trial Court could not have come to the conclusion that the accused was liable to be convicted under Section 354, IPC. This being the case in hand, he submits that the accused should be acquitted. Another submission of the learned Amicus Curiae is that the alleged incident had taken place prior to the amendment of the IPC, more particularly Section 354, IPC and that the judgment and order had been passed after the new amendment had come into force. He submits that the IPC having penal consequences, such amendments cannot have retrospective effect but only prospective. He submits that the IPC having penal consequences, such amendments cannot have retrospective effect but only prospective. Therefore while passing the judgment and order dated 11.9.2014, the learned Court should have applied the old law and not the amended law. He further submits that under the old law, punishment under Section 354, IPC was imprisonment for a term which may extend to 2 years or with fine, or with both. However under the amended law, the punishment was imprisonment of either description for a term which shall not be less than one year but which may extend to five years and shall also be liable to fine. However, from the materials on record, it is seen that the incident had taken place prior to the new amendment and therefore, the learned trial Court could not have imposed the punishment of 3 years along with a fine of Rs. 1000/- upon the accused and therefore submits that on this score too, the judgment and order dated 11.9.2014 should be set aside and quashed. 13. Mr. A. K. Rokhum, learned Public Prosecutor, Mizoram submits that the PWs. 1, 2 & 3 have corroborated their statements without any iota of doubt against the accused which has led to his conviction and sentence. He therefore submits that no interference is required in the present case in hand and the present appeal should be dismissed. 14. I have heard the learned counsel appearing for the respective parties. 15. PWs. 2 & 3 are the victims. PW 2 in her deposition has clearly stated that the accused would make them touch his private parts and when she refused, he would threaten to beat her or hang her. PW 3 has also corroborated the statement of PW 2 by stating that her father, i.e. accused, would let her touch his private parts when he cannot urinate. Insofar as the touching of the private parts of the accused by the victims are concerned, this Court has noticed that the statement of the accused recorded under Section 313 also clearly indicates that he has admitted to that act. The threats given to the victims, i.e. PWs. 2 & 3, has also been admitted by the accused in his statement recorded under Section 313 though denial was made insofar as touching of the private parts of the victims is concerned. The accusation of the alleged offence made by the PWs. The threats given to the victims, i.e. PWs. 2 & 3, has also been admitted by the accused in his statement recorded under Section 313 though denial was made insofar as touching of the private parts of the victims is concerned. The accusation of the alleged offence made by the PWs. 2 and 3 has been further strengthened by the statement of the accused recorded under Section 313. This Court is therefore convinced without any doubt that the accused, who is also the biological father, has molested his daughters/victims. This being the position, this Court is of the opinion that the prosecution has made out a case calling for conviction and sentencing of the accused under Section 354, IPC and therefore this Court does not see any error in the conviction and sentencing of the accused under Section 354, IPC. 16. The next question that requires to be addressed by this Court is whether the old law or the new law is applicable to the present case in hand. The offence took place sometime in the month of January, 2014 while the amendment had come into force w.e.f. 3.2.2013. Therefore when the offence took place, the old law was in force. This being the position, this Court is of the considered of opinion that sentence upon the accused should have been made under the old law and not under the amended law. In that view of the matter, this Court is of the opinion that the judgment and order dated 11.9.2014 requires interference. 17. Accordingly, the impugned judgment dated 11.9.2014 passed in Criminal trial No. 63/2014 by the learned Addl. Sessions Judge, Lunglei Judicial, Lunglei, Mizoram is interfered with and the same is accordingly set aside and quashed. However, considering that this Court has come to the conclusion that the accused was guilty of the offence under Section 354, IPC, the accused is convicted and sentenced to undergo Rigorous Imprisonment for a period of 1 year along with a fine of Rs. 1000/- only and in default simple imprisonment for another 30 days. The detention period undergone by the accused shall be set off. 18. Appeal is partially allowed. 19. In appreciation of the services rendered towards this Court by the learned Amicus Curiae, it is provided that he shall be entitled to a fees of Rs. 1000/- only and in default simple imprisonment for another 30 days. The detention period undergone by the accused shall be set off. 18. Appeal is partially allowed. 19. In appreciation of the services rendered towards this Court by the learned Amicus Curiae, it is provided that he shall be entitled to a fees of Rs. 7500/- which shall be paid by the Mizoram Legal Service Authority on production of a certified true copy of the judgment and order passed by this Court today. Registry is directed to furnish a certified true copy of the judgment and order to the learned Amicus Curiae free of cost. 20. Sent down the LCRs forthwith. Appeal partly allowed.