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2018 DIGILAW 614 (GAU)

Lalchullova v. State of Mizoram

2018-04-09

NELSON SAILO

body2018
JUDGMENT & ORDER : 1. Heard Mr. Jonathan L. Sailo, the learned Amicus Curiae as well as Mr. A.K. Rokhum, the learned Public Prosecutor appearing for the State. 2. This is an appeal from jail filed by the accused appellant against the Judgment & Order dated 06.06.2017, passed by the learned Special Judge, Protection of Children from Sexual Offence Act, Aizawl in SC No. 1/2015 arising out of Criminal Trial No. 41/2015 convicting the accused appellant under Section 4 of the Protection of Children from Sexual Offence Act, 2012 (POCSO Act) and thereafter, sentencing him to undergo a Rigorous Imprisonment for 7 years vide Order dated 07.06.2017. 3. The case of the prosecution in brief is that an FIR was lodged by one Shri. Vanlalchaka, (PW 1) on 26.09.2014 to the effect that the accused appellant on 09.09.2014 sexually abused his daughter Zohmingliani, aged 6 years at the residence of one Laltluanga of North Khawlek. As a result, Darlawn P.S. Case No. 24/2014 dated 26.09.2014, under Section 376 (2) (i) of the IPC read with Section 4 of the POCSO Act was duly registered and investigated upon. Upon completion of the investigation, the Investigating Officer filed the charge sheet on 13.12.2014. Thereafter, charge was framed by the learned Special Judge under the POSCO Act on 02.02.2015 against the accused appellant under Section 4 of the POCSO Act and to which, the accused appellant pleaded not guilty and claimed for trial. Accordingly, trial against the accused appellant was initiated. During trial, the prosecution examined as many as 5 prosecution witnesses and upon closure of the prosecution evidence, the accused appellant was examined under Section 313 of the Cr.P.C. The accused appellant in his defence did not lead any evidence. Upon conclusion of the trial, the learned Special Judge vide Judgment & Order dated 06.06.2017 convicted the accused appellant under Section 4 of the POCSO Act and thereafter, vide Order dated 07.06.2017 sentenced him to a Rigorous Imprisonment for 7 years. 4. Mr. Jonathan L. Sailo, the learned Amicus Curiae submits that from the deposition of the PW 1, who is the father of the victim as well as the informant, he came to learn about the incident from his neighbor Nunthari. 4. Mr. Jonathan L. Sailo, the learned Amicus Curiae submits that from the deposition of the PW 1, who is the father of the victim as well as the informant, he came to learn about the incident from his neighbor Nunthari. He submits that PW 1 having got the information only from Nunthari, the prosecution ought to have examined Nunthari as one of the prosecution witnesses but however, the same was not done. Likewise, from the deposition of the prosecutrix, she was taken to the house of Laltluanga, where according to her, two grown-ups were also present in the house. The prosecution however failed to examine the two grown-ups said to be present in the house when the incident took place and moreover, the owner of the house Laltluanga was not examined in the trial. Mr. Jonathan L. Sailo by referring to the deposition of the prosecutrix in her examination-in-chief as well as the judicial statement recorded by the Judicial Magistrate on 22.10.2014 submits that there is a clear contradiction. Therefore, the accused appellant could not have been convicted with such contradictory statements made by the prosecutrix herself. Furthermore, referring to the deposition of the Investigating Officer who appeared before the Trial Court as PW 5, he reiterates that the occupants of the house of Laltluanga, where the offence against the prosecutrix was alleged to have been committed ought to have been examined. He therefore submits that under the circumstances, the conviction of the accused appellant cannot be sustained. 5. Mr. A.K. Rokhum, the learned Public Prosecutor appearing for the State submits that from the deposition of the prosecutrix before the Trial Court, the guilt of the accused and his commission of an offence under Section 4 of the POSCO Act has clearly been established. He further submits that her testimony has also been corroborated by the medical evidence. The Doctor who conducted the medical examination was examined as PW 3 and he testified before the Court that upon examining the prosecutrix on 26.09.2014, he found a small tear at 6 o’clock position of the hymen of the prosecutrix. He also found that the physical and mental health condition of the prosecutrix to be normal. The Doctor who conducted the medical examination was examined as PW 3 and he testified before the Court that upon examining the prosecutrix on 26.09.2014, he found a small tear at 6 o’clock position of the hymen of the prosecutrix. He also found that the physical and mental health condition of the prosecutrix to be normal. Therefore, having regard to the settled position in law that the testimony of the prosecutrix alone if found to be reliable would be sufficient to convict the accused, the impugned Judgment & Order requires no interference. In this connection, he relies upon the decision of the Apex Court rendered in (1) State of Punjab Vs. Gurmit Singh & Ors. AIR 1996 SC 1393 (2) State of Andhra Pradesh Vs. Gangula Satya Murthy AIR 1997 SC 1588 . 6. I have heard the submissions advanced by the learned counsels for the parties and have perused the materials available on record, including the Lower Court Records. 7. As may be noticed, the prosecution examined as many as 5 witnesses. PW 1, Vanlalchaka who is the informant and father of the victim in his examination-in-chief, deposed that he was informed by his neighbour Nunthari that the accused appellant had sexually assaulted the victim by inserting his finger in her private part at the house of Laltluanga. When he enquired about the incident from the prosecutrix, she informed him that on the date of the incident, the accused appellant made her sit on his lap and he inserted his finger into her private part. He came to know about the incident on being informed after about 1 week from the date of the incident. Since Darlawn Police Station was far away from their village, the FIR could only be submitted on 26.09.2014. 8. PW 2 who is the prosecutrix in her examination-in-chief deposed that on the date of the incident the accused took her to the house of Laltluanga and made her sit on his lap and inserted his finger in her private part. Thereafter, the accused appellant let her go home and she did not report the matter to anyone as she was ashamed. It was only after she was questioned by her parents that she narrated the incident to them. 9. PW 3, Dr. Thereafter, the accused appellant let her go home and she did not report the matter to anyone as she was ashamed. It was only after she was questioned by her parents that she narrated the incident to them. 9. PW 3, Dr. Lalrammuana, who examined the victim the post on oath deposed that he examined the victim girl on 26.09.2014 and found a small tear at 6 o’clock position of the hymen and that the physical and mental health of the victim was normal. 10. PW 4, Thomas Lalrammawia, the Judicial Magistrate who recorded the statement of the victim on 22.10.2014 on oath deposed that he examined the victim and recorded her statements. He exhibited the statements recorded by him as Ext.P-4 and Ext.P-4-A. Cross examination of PW-4 was declined by the counsel for the defence i.e., accused appellant. 11. PW 5, C. Zonummawia is the Investigating Officer who conducted the investigation. In his examination-in-chief he deposed that he was posted as the Officer-in-charge of Darlawn Police Station at the relevant time. Upon receiving an FIR lodged by PW 1 on 26.09.2014, he conducted investigation on the incident after registering the case. During his investigation, he recorded the statements of the informant as well as the victim. He also forwarded the victim girl to the Medical Officer at Public Health Centre, Suangpuilawn for medical examination and as per the medical examination report, the Doctor found a small tear on her hymen at 6 o’clock position. He also arrested the accused appellant and recorded his statements wherein, he admitted his guilt by stating that on 09.09.2014, he sexually molested the victim by inserting his left forefinger inside the vagina of the victim girl at the residence of Zatluanga and he recorded his statement as well. 12. From the materials available on record, what can be noticed is that the statement of the prosecutrix or the victim is corroborated by the deposition of PW 1, 3, 4 and 5 to that extent that on 09.09.2014, the accused appellant sexually molested the victim by inserting his finger in her private part and as a result, upon medical examination conducted on the victim, a small tear at 6 o’clock position was found in the hymen of the victim. Though in the statement of the victim recorded by the Judicial Magistrate, the victim mentioned about the presence of two persons in the house, non-examination of the two persons during the incident cannot be the ground to discredit the testimony of the prosecution witnesses. Moreso, when the deposition of the prosecutrix is corroborated by the deposition of the Doctor who examined her besides the other prosecution witnesses. Although medical examination was done after about more than two weeks from the date of the incident but in the absence of any evidence or even a suggestion to the contrary with regard to tear in the hymen, the version of the prosecutrix cannot be disbelieved. The Doctor as PW-3 also deposed that the physical and mental health of the victim was normal. 13. The Apex Court in the case of Gurmit Singh (Supra) held that the Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience and there is no requirement to insist upon corroboration of her statement to base conviction of an accused. It was further held that the evidence of the victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent, is even more reliable. Further, the Apex Court in the case of Gangula Satya Murthy (Supra) also held that the Court while trying an accused on charge of rape must show great sensitivity. Court should examine broader probabilities and not get swayed by minor contradictions or insignificant discrepancies in statement of witnesses which are not of a fatal nature to throw out allegations of rape. In the instant case, the prosecutrix has clearly stated in her examination-in-chief that it was the accused appellant who had committed sexual molestation upon her. Her version has also been corroborated by the other prosecution witnesses as well. I therefore find that the contradictions adverted to by the learned Amicus Curiae can only be considered as discrepancies which can be ignored. 14. In that view of the matter, I am of the opinion that charge under Section 4 of the POCSO Act has clearly been established against the accused appellant and therefore, the conviction as well as the sentence is found to be sustainable. 15. In the result, the appeal being without merit, the same is dismissed. 16. 14. In that view of the matter, I am of the opinion that charge under Section 4 of the POCSO Act has clearly been established against the accused appellant and therefore, the conviction as well as the sentence is found to be sustainable. 15. In the result, the appeal being without merit, the same is dismissed. 16. As a token in appreciation of the valuable assistance rendered by the learned Amicus Curiae, his fee is quantified at Rs. 7500/- which shall be paid by the Mizoram State Legal Services Authority on production of a copy of this order.