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2017 DIGILAW 1385 (GAU)

Khaiche v. State of Mizoram

2017-10-27

M.R.PATHAK

body2017
JUDGMENT : M.R. Pathak, J. 1. This criminal Appeal has been filed by the accused/appellant being aggrieved with the Judgment and Order of conviction dated 09.05.2017 and sentence dated 12.05.2017 passed by the learned Special Judge (POCSO Act, 2012), Saiha in S.R. No. 03/2016, arising out of Saiha Police Station Case No. 51 of 2016 by which the appellant/accused has been convicted under Section 6, read with Section 18 of the Protection of Children from Sexual Offences Act, 2012 read with Section 34 of the Indian Penal Code and sentenced him to undergo Rigorous Imprisonment for 10 (ten) years and to pay fine of Rs. 3,000/-, in default to undergo Imprisonment for another 1 (one) month, setting off the period of detention already undergone by him during the judicial custody. Heard Mr. Benjamin Lalthlamuana, learned counsel, for the accused/appellant and Mrs. Linda L. Fambawl, learned Additional Public Prosecutor, Mizoram representing the State. 2. The prosecution case, as it emerges from the First Information Report dated 31.05.2016 (Exhibit-P3) lodged by the informant victim Ms. 'X' (actual name withheld), is that one Reithaia of Tuipang Village (co-accused Z. Beireithai) and his friend (appellant herein) asked her father if they could take out her to search for Lalthuthaa and they took her out on a bike to the Helipad (DZ) mount. Thee they undressed her and tried to rape her and when she resisted them, they threatened her saying that they would kill her. When she cried, they grabbed her breasts in the process, but, fortunately Henry and his friends came to her rescue that night. By the said FIR, the informant/victim requested the authority to apprehend the accused persons and to take legal action against those miscreants who had disgraced her. 3. On receipt of the said FIR, Saiha Police Station Case No. 51 of 2016 under Section 8 of the POCSO Act read with Section 34 of the Indian Penal Code was registered against the accused/appellant and another co-accused. 4. 3. On receipt of the said FIR, Saiha Police Station Case No. 51 of 2016 under Section 8 of the POCSO Act read with Section 34 of the Indian Penal Code was registered against the accused/appellant and another co-accused. 4. During investigation, police arrested the FIR named accused persons, the appellant herein on 31.05.2016 and the co-accused Z. Beireithai on 01.06.2016, seized torn clothes of the victim (Exhibit-P8) and victims Birth Certificate dated 01.04.2002 (Exhibit-P9), sent the victim to the Doctor for her necessary medical examination, recorded the statement of the victim, statements of other witnesses acquainted with the facts of the case as well as the accused persons under Section 161 Cr.P.C. He also forwarded the victim to the Chief Judicial Magistrate, Saiha to record her statement under Section 164 Cr.P.C. On receipt of the medical report of the victim (Exhibit-P 19), copy of her statement recorded under Section 164 Cr.P.C. (Exhibit-P20) and on completion of the investigation, finding sufficient incriminating materials against the accused persons including the appellant, the Investigating Officer vide Charge-Sheet No. 60/2016 dated 19.08.2016 submitted the charge sheet in said Saiha P.S. Case No. 51/2016 under Section 8 of the POCSO Act read with Section 34 of the IPC 5. As the offence under POCSO Act, 2012 is exclusively triable by a Court of Special Judge, constituted under the said Act, learned CJM, Saiha forwarded the record of said Saiha P.S. Case No. 51/2016 to the Court of learned Special Judge (POCSO Act, 2012), Saiha and in the said Court it was registered and numbered as S.R. No. 03/2016. 6. Finding sufficient materials against the accused appellant, the learned Special Judge, Saiha on 14.02.2017 framed charge under Section 4 read with Section 17 of the POCSO Act, 2012 against him, which was read over and explained to him, to which, the accused/appellant pleaded not guilty and claimed to be tried. As such the trial commenced. 7. In order to bring home the charges, against the accused/appellant, the prosecution examined 5 (five) witnesses on its behalf and the defence cross-examined the prosecution witnesses. The statement of the accused/appellant under Section 313 Cr.P.C. was recorded on 05.04.2017, wherein he denied the allegations. 8. The learned Special Judge, Saiha upon appreciation of the evidences adduced by both the prosecution, recorded the impugned judgment of conviction and sentence as aforesaid and hence, the present appeal. 9. Mr. The statement of the accused/appellant under Section 313 Cr.P.C. was recorded on 05.04.2017, wherein he denied the allegations. 8. The learned Special Judge, Saiha upon appreciation of the evidences adduced by both the prosecution, recorded the impugned judgment of conviction and sentence as aforesaid and hence, the present appeal. 9. Mr. Benjamin Lalthlamuana, learned counsel, for the accused/appellant contended that he is no way connected with the alleged offences and charged sections and that the learned Special Judge misread the evidence adduced by the prosecution and thereby recorded by the impugned judgment of conviction and sentence. It is also submitted that the accused appellant was not properly examined under Section 313 Cr.P.C. and urged that learned Trial Judge did not give him any opportunity to adduce defence evidence. He further stated that the learned Special Judge committed illegality with the provisions of law while convicting him by the impugned Judgment & Order. Mr. Lalthlamuana also submitted that the accused appellant is no way connected with the alleged offences and that the accusation made against him are totally false and that the prosecution failed to prove the guilt of the accused appellant under the charged Sections. As such, it is prayed that the impugned Judgment & Order of conviction dated 09.05.2017 and the order of sentence dated 12.05.2017, for such flaws, against the appellant should be set aside and quashed. 10. On the other hand, on behalf of the prosecution learned Addl. Public Prosecutor Mrs. Fambawl submitted that the accused appellant has been rightly convicted and sentenced as the learned Trial Judge from the evidence adduced by the prosecution found that the minor victim girl was not only sexually abused but also the accused persons including the appellant touched her private parts, threatened her of killing and attempted to commit rape upon her. 11. Considered the submissions advanced by the learned counsels appearing for the parties and perused the evidence those were adduced by the prosecution in the case as well as the judgment of conviction of sentence recorded by the learned Special Judge. 12. In order to appreciate the arguments, advanced by the learned counsels appearing for both the parties and to examine the correctness of the impugned Judgment and Order of conviction, let me briefly scrutinize the evidence on record. 13. P W. 1, Ms. 12. In order to appreciate the arguments, advanced by the learned counsels appearing for both the parties and to examine the correctness of the impugned Judgment and Order of conviction, let me briefly scrutinize the evidence on record. 13. P W. 1, Ms. 'X' the informant victim in her deposition submitted that during evening around 06:00 pm of 29.05.2016, both the accused persons, whom she knew from the date of the incident came to their house in search of her uncle Lalthuthaa, younger brother of her father and as he was not available in their house, they asked her father to take her with them in search of her said uncle and on being allowed by her father, she followed both the accused persons in their motor cycle to a house located at Saiha Vaipi-III, and not finding his uncle there, the accused persons with her proceeded to the residence of the former wife of her uncle at Council Veng. Even there her uncle could not be found and there, both the accused persons took liquor. After that the accused persons brought her to the DZ Hang, Helipad and stopped their motor cycle on the ground of PHE Tank and from there, both the accused persons force fully pulled her to the close place in the area and tried to rape her by undressing her clothes, closed her mouth by their hands and that while the accused/appellant grabbed her breasts and the other accused tried to rape her. As she tried to escape from the clutch from them, she stated that the accused/appellant had pulled her back and then both the accused persons removed her clothes and during this, while she was trying to defend herself, suddenly Mr. Henry (PW 2) and others, hearing her cry came to the place of incident and saved her. She also stated that after this incident, she was brought into their house by said Henry and thereafter she lodged the FIR of the case. She further stated that at the time of her deposition she was about 15 years old and that Exihibit-P9 is her birth certificates. She also stated that after this incident, she was brought into their house by said Henry and thereafter she lodged the FIR of the case. She further stated that at the time of her deposition she was about 15 years old and that Exihibit-P9 is her birth certificates. During her cross examination by the defence, the victim stated that she did not remember the date of the incident and reiterated that both the accused persons consumed the liquor before leaving for the helipad and she admitted that only some portion of her clothes were torn and those were seized by Police, which the prosecution could not produce before the Court as it got misplaced at Lunglei Court. 14. PW 2 Mr. Henry Thatipha, in his deposition stated that on 29.05.2016 evening, while he along with his friend were sitting in the waiting shed just below DZ Hill, one motor cycle came with three persons and halted near their sitting place and a girl who was boarding the said motor cycle cried out and shouted for help and she immediately proceeded to them. Since the said girl come to be well known to him and as she requested them, they brought the victim girl to her house in their motor cycle and that while he was in the motor cycle to bring the victim back to her residence, the accused persons returned back. He also stated that next day morning; when he went to the Police Station as he was called by Police, there she noticed that the clothes of the victim was torn. During his cross examination by the defence, said PW 2 stated that the accused persons and the victim was in the place of occurrence for about five minutes and that he neither saw the victim fleeing away from the hands of the accused persons nor he saw that the victim was physically pulled back by the accused person. He also clarified that the victim girl did not inform him what had happened to her. He also clarified that the victim girl did not inform him what had happened to her. During his re examination, he stated that he did not watch the accused persons and the victim girl all the time as he could not see them from the place where they were sitting as there was no power supply and that the place of occurrence was dark at the time of alleged incident and further stated that when the victim girl came to them seeking help, they had started their motor cycle to turn back to Saiha town. During his re-cross examination by defence, PW 2 stated that when they returned from the place of the incident, the accused persons did not come to the house of the victim girl. 15. PW 3, Pu. Thanghmasaa, father of the victim girl, in his deposition stated that the accused persons came to his house in search of his brother Mr. Latthuthaa and as he was not present in their house, at the request of the accused persons, he allowed his daughter, the victim girl, to accompany them to the house of the former wife of his brother. Later, the victim was brought back to his house by Mr. Henry (PW 2) and others and at that time the victim was crying and she appeared to be under fear and he was informed about the incident by the victim and her rescuing team. He also stated that Police was informed and FIR was lodged by the victim girl and that when police visited their house he was present and that police seized victim's birth certificate and her torn clothes and that he was a signatory to such seizure by police. During his cross examination said PW 3 stated that police seized the birth certificate of the victim and her torn clothes to which he was a seizure witness and that it is Mr. Henry (PW 2) who rescued the victim girl and brought her back to his house. In his re-examination, said PW 3 stated that the other friend of Mr. Henry (PW 2) was Zodinpuii and that it is his mother, the grandmother of the victim, who handed over the birth certificate and torn clothes of the victim to police and those were seized by them. 16. PW 4, Pi. In his re-examination, said PW 3 stated that the other friend of Mr. Henry (PW 2) was Zodinpuii and that it is his mother, the grandmother of the victim, who handed over the birth certificate and torn clothes of the victim to police and those were seized by them. 16. PW 4, Pi. A. Ngokha, grandmother of the victim stated in her deposition stated that she resides with the victim under the same roof and she was present in the house when the victim girl was brought back after being rescued and she came to know about the incident as been told to her by the victim herself. She also stated that she is a seizure witness to the birth certificate and torn clothes of the victim that were seized by the Police. In her cross examination, said P W 4 stated that she handed over the birth certificate and torn clothes of the victim to the police. 17. PW 5, H.C. Rochungnunga, the Investigating Officer of the case in his deposition stated that said case was registered on 31.05.2016 and he recorded the statement of the witnesses, statement of both the accused persons and seized the birth certificate and torn clothes of the victim and on finding prima facie case against both the accused persons regarding commission of offence under POCSO Act, he filed the charge sheet in the case. During his cross examination, said P W 5 stated that victim's birth certificate and her torn clothes were physically handed over to him by her grandmother and that the statement of the victim was recorded in presence of Lady Constable when she came to lodge the FIR. He further stated that at the time of arrest of both the accused persons, they were not in the state of intoxication and that the statement of the PW 4, grandmother of the victim was recorded in the police station when she came their accompanying the victim and that he has no comment on the medical report of the victim (Exhibit-P 19). 18. After recording evidence of the prosecution witnesses, the statement of the accused persons under Section 313 Cr.P.C. were recorded on 05.04.2017. 19. Exhibit-P 9, the birth certificate of the victim, issued on 10.12.2012 by the Assistant District Registrar, Registration of Births and Death, Saiha District, Saiha, discloses that the date of birth of the victim girl is 1.4.2002. 18. After recording evidence of the prosecution witnesses, the statement of the accused persons under Section 313 Cr.P.C. were recorded on 05.04.2017. 19. Exhibit-P 9, the birth certificate of the victim, issued on 10.12.2012 by the Assistant District Registrar, Registration of Births and Death, Saiha District, Saiha, discloses that the date of birth of the victim girl is 1.4.2002. Therefore, on 29.05.2016, the date of the incident, the victim girl was about 14 years 2 months. Exhibit-P 19, the medical report of the victim girl dated 30.05.2016 issued by the Medical Officer, District Hospital, Saiha reflects that -since there was no actual penetration and intercourse, no test was conducted for laboratory report of smear/discharge/stains and that the hymen of the victim was found to be intact and nether there was any bruising or laceration on her external genitals nor presence of seminal stains on it. Exhibit-P 20 is the statement of the victim girl recorded by the learned Chief Judicial Magistrate, Saiha under Section 164 Cr.P.C. on 02.06.2016 and from it can be seen that the victim told the learned Magistrate that not finding her uncle in the residence of Hmangaihi, his former wife, the accused persons drank liquor in her house, as she is in the trade of selling liquor and thereafter, they took her to DZ Mount (Helipad) for further search of her uncle and reaching the Helipad, the accused persons took her to the nearby bushes and started touching her body. In her said statement, she further stated that both the accused persons hold her, forcibly took off her pant and top during which her dress got torn, they lifted her undergarments and grabbed her breasts and they tried to rape her and as she was scared and shouted loud for help, she was threatened by the accused persons, but, fortunately Henry and his friends, who were at DZ Mount hearing her cry for help, came and rescued her. On being asked by the learned Magistrate as to who tried to raped her, she named Reithaia and stated that she does not know the name of the other person. On being further asked by the Magistrate as to whether the accused persons touched her private parts while trying to rape her, she replied in negative and stated that she did not know the accused person prior to the incident. 20. On being further asked by the Magistrate as to whether the accused persons touched her private parts while trying to rape her, she replied in negative and stated that she did not know the accused person prior to the incident. 20. After considering the Exhibits that were placed by the prosecution in the case, the learned Special Judge by his Order dated 03.05.2017, fixed the said case S.R. No. 03/2016 for arguments on 05.05.2017. The order sheet of the case reveals that on 5.5.2017 both the accused persons were present before the learned Special Judge, arguments of the case was concluded and as prayed for and submitted by the concerned Public Prosecutor of the case, learned Special Judge on 05.05.2017 itself framed charge under Section 6 read with Section 18 of the POCSO Act, 2012 and under section 34 IPC against both the accused persons including the appellant and fixed 09.05.2017 for Judgment & Order. Thereafter, the learned Special Judge passed the impugned judgment & order of conviction on 09.05.2017 and sentence on 12.05.2017. 21. From the records of the case it is seen that on the prayer and submission of the Public Prosecutor who conducted the trial of the said case, learned Special Judge framed the charge under Section 6, read with Section 18 of the POCSO Act, 2012 against the accused persons including the appellant. But, the in the order dated 05.05.2017 of learned Special Judge passed in said S.R. No. 03/2016, there is no reflection as to whether the learned Special Judge read over the charge sections to the accused persons or not and further, the said order dated 05.05.2017 of the learned Special Judge also does not reflect as to whether the accused persons understood the said charges and whether after understanding the same, they pleaded guilty or not guilty and claimed to be tried. 22. Moreover, after framing such charge under Section 6 read with Section 18 of the POCSO Act, 2012 on 05.05.2017, learned Special Judge passed the Judgment in the case on 09.05.2017 itself, but neither any prosecution evidence was recorded by him after 5.5.2017 nor any opportunity was given to the accused persons to adduce any defence evidence. 23. 22. Moreover, after framing such charge under Section 6 read with Section 18 of the POCSO Act, 2012 on 05.05.2017, learned Special Judge passed the Judgment in the case on 09.05.2017 itself, but neither any prosecution evidence was recorded by him after 5.5.2017 nor any opportunity was given to the accused persons to adduce any defence evidence. 23. Besides that records reveal that while recording Section 313 Cr.P.C. statement of the accused persons on 05.04.2017, the learned Special Judge did not enquire/ask the accused persons as to whether they are willing to adduce any defence witness as their evidence or not nor afforded any chance to them. It is also seen from the records of the case that after framing the new charges under Section 6 read with Section 18 of the POCSO Act, the learned Special Judge did not place anything before the accused persons that there are material evidence against him regarding his commission of offence of attempt to commit penetrative sexual assault upon the minor victim girl with common intention in aggravated form as define under Section 5 (a) (g) of the POCSO Act, 2012, so as to punish him under Sections 6 and 18 of the POCSO Act. 24. All these clearly shows that learned Special Judge did not comply with the procedure and the provisions of law regarding framing of charge, trial, recording of evidence of prosecution and defence witness and recording of statement of the accused persons under Section 313 Cr.P.C. and thereby, committed illegality in passing the impugned judgment of conviction and sentence to the appellant, impugned in this appeal. 25. For the aforesaid reasons, the impugned Judgment & Order of conviction dated 09.05.2017 and the order of sentence dated 12.05.2017 passed in S.R. Case No. 3/2016 by learned Special Judge, (POCSO Act, 2012) Saiha is hereby set aside and quashed. For proper adjudication of the matter, the said S.R. Case No. 3/2016 is hereby remanded back to the learned Special Judge (POCSO Act, 2012) Saiha for its re-trial, from the stage of framing of charge dated 5.5.2017. For proper adjudication of the matter, the said S.R. Case No. 3/2016 is hereby remanded back to the learned Special Judge (POCSO Act, 2012) Saiha for its re-trial, from the stage of framing of charge dated 5.5.2017. Learned Special Judge (POCSO Act, 2012) Saiha now after hearing both the prosecution and the defence, affording opportunity to the appellant herein/accused persons of the case to adduce defence evidence, from their side, if any, and recording all such evidence as well as the statements of the accused persons under Section 313 Cr.P.C. again, including the appellant, shall pass his Judgment and Order afresh. 26. Finding the flaws in the trial of said S.R. Case No. 3/2016, the Court found it fit not to determine the availability of the ingredients of Sections 6 and 18 of the POCSO Act, 2012, from the evidence available in the case, while deciding this appeal. 27. Learned Special Judge (POCSO Act, 2012), Saiha shall complete the re- trial of said S.R. Case No. 3/2016 within a period of 3 (three) months from the date of receipt of the records of the case by giving notice to both the prosecution and the accused persons. 28. Registry shall return the records of S.R. Case No. 3/2016 forthwith to the Court of learned Special Judge (POCSO Act, 2012), Saiha along with a copy of this order. With the aforesaid observation and direction this appeal stands disposed of.