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2019 DIGILAW 541 (GAU)

Lalzuiliana v. State of Mizoram

2019-05-03

NELSON SAILO

body2019
JUDGMENT : 1. Heard Mr. T. Lalnunsiama, the learned Amicus Curiae for the appellant. Also heard Mrs. Linda L. Fambawl, the Addl. Public Prosecutor for the State respondent. 2. This is an appeal from Jail by the convict appellant against the Judgment and Order dated 14.12.2016 passed by the Court of Special Judge under POCSO Act, 2012 in SC No. 68/2014 corresponding to Criminal Trial No. 1016/2014 convicting the appellant under Section 8 read with Section 18 of the POCSO Act and sentencing him to the period already undergone i.e. 2 years 7 months and 14 days. The appeal is also against the Judgment and Order dated 17.01.2017 passed by the same Court in SC No. 86/2014 corresponding to Criminal Trial No. 1177/2014 convicting the appellant under Section 4 of the POCSO Act and sentencing him to undergo Rigorous Imprisonment of 7 years with a fine of Rs. 1000/- and with a default clause. Be it stated herein that the victim/prosecutrix in both the cases are sisters. The victim/prosecutrix in S.C. No. 68/2014 at the time of the incident was about 13 years while her sister, the victim/prosecutrix in S.C. No. 86/2014 was 10 years at the time of the incident. 3. Since the appellant is convicted and sentenced in two separate case, Registry is directed to register a separate appeal in respect of SC No. 86/2014 corresponding to Criminal Trial No. 1177/2014. The appeal already registered as Criminal Appeal No. 21/2017 (J) shall be in respect of SC No. 68/2014 corresponding to Criminal Trial No. 1016/2014. 4. Since a common paper book was prepared for the two criminal appeals, they are disposed of through the present common Judgment and Order. 5. The case of the prosecution in SC No. 68/2014 is that on 18.05.2014, a written information was received from the mother of the prosecutrix to the effect that on the same day while she and her husband were not at home, the appellant who is their neighbour sexually molested her daughter by touching her breast and even trying to kiss her. The prosecutrix then called her mother over phone and pursuant to which, she and her husband rushed home. As a result, Vaivakawn Police Station Case No. 139/2014 under Section 354 (A) (2)/509 IPC read with Section 8 of the POCSO Act was registered on the same day and investigation got underway. 6. The prosecutrix then called her mother over phone and pursuant to which, she and her husband rushed home. As a result, Vaivakawn Police Station Case No. 139/2014 under Section 354 (A) (2)/509 IPC read with Section 8 of the POCSO Act was registered on the same day and investigation got underway. 6. After the investigation was completed, charge was framed against the appellant under Section 8 of the POCSO Act and to which, he pleaded not guilty and claimed for trial. As a result, trial against the appellant commenced. During the trial, the prosecution examined four witnesses which included the prosecutrix, her mother and a seizure witness. Besides them, the Investigating Officer, who submitted the charge sheet was examined as PW-6. The confessional statement of the accused appellant under Section 164 of the CrPC was also recorded. Upon conclusion of the prosecutions evidence, the appellant was examined under Section 313 of the CrPC. The defence led no evidence. 7. Consequently, upon conclusion of the trial, the learned Trial Court vide its Judgment and Order dated 14.12.2016 convicted the appellant under Section 8 of the POCSO Act read with Section 18 of the same Act. On such conviction, the appellant was sentenced to imprisonment for the term already gone i.e. 2 years 7 months and 14 days. 8. In respect of SC No. 86/2014, it is the prosecution case that a separate FIR was submitted by the mother of the prosecutrix on 18.05.2014 to the effect that on 17.05.2014, her daughter aged 10 years was sexually assaulted by the appellant who is their neighbour. She reported that the appellant inserted his finger inside the private part of her daughter and also licked the same. As a result, Vaivakawn Police Station Case No. 138/2014 under Section 376 (2) (i) of the IPC read with Section 6 of the POCSO Act was registered and following which, investigation was conducted. After the investigation was completed, charge was framed against the appellant under Section 6 of the POCSO Act on 20.11.2014 and to which, he pleaded not guilty and claimed for trial. 9. During the trial, as many as 7 prosecution witnesses were examined including the prosecutrix herself. The confessional statement of the appellant under Section 164 of the CrPC was recorded and also the judicial statement of the prosecutrix was also recorded. The appellant did not lead any evidence in his defence. 9. During the trial, as many as 7 prosecution witnesses were examined including the prosecutrix herself. The confessional statement of the appellant under Section 164 of the CrPC was recorded and also the judicial statement of the prosecutrix was also recorded. The appellant did not lead any evidence in his defence. Upon conclusion of the trial, the learned Trial Court vide Judgment and Order dated 17.01.2017 convicted the appellant under Section 4 of the POCSO Act and sentenced him to a Rigorous Imprisonment for 7 years with fine of Rs. 1000/- and with a default clause. 10. Mr. T. Lalnunsiama, the learned Amicus Curiae advancing his argument on behalf of the appellant submits that the learned Trial Court in both the cases altered the charge while passing the impugned Judgment and Order. He submits that in SC No. 68/2014, the learned Trial Court in addition to Section 8 of the POCSO Act added Section 18 of the same Act to convict the appellant. In respect of SC No. 86/2014, although charge was framed under Section 6 of the POCSO Act, the learned Trial Court altered the charge to Section 4 of the same Act while passing the Judgment of conviction against the appellant. He, therefore, submits that the same is in violation of Section 216 of the CrPC which otherwise provides that any Court may alter or add to any charge at any time before Judgment is pronounced. In support of his submission, he relied upon the following authorities :- (i) Ranbir Yadav Vs. State of Bihar, (1995) 4 SCC 392 . (ii) Rafiq Ahmad Alias Rafi Vs. State of Uttar Pradesh, (2011) 8 SCC 300 . (iii) Anant Prakash Sinha alias Anant Sinha Vs. State of Haryana and Another, AIR 2016 SC 1197 . 11. Mr. T. Lalnunsiama, the learned Amicus Curiae further submits that since the learned Trial Court altered the charge by passing the impugned Judgment and Order, there is no evidence against the appellant to establish his guilt under the altered charge. At the same time, grave prejudice has been caused to him for not having been given any opportunity to defend himself against the altered charge as permissible under law. He, therefore, submits that under the given facts and circumstances, the impugned conviction and sentence passed against the appellant in both the cases cannot be sustained and should be set aside and quashed.12. Mrs. He, therefore, submits that under the given facts and circumstances, the impugned conviction and sentence passed against the appellant in both the cases cannot be sustained and should be set aside and quashed.12. Mrs. Linda L. Fambawl, the learned Addl. Public Prosecutor submits that convicting and sentencing the appellant for a lesser offence does not amount to altering the charge in the true sense. She submits that Section 8 of the POCSO Act provides for the punishment for sexual assault while Section 18 of the same Act provides for punishment for attempt to commit an offence and the punishment provided for one-half of the longest term of imprisonment provided for that offence. This was the finding and order of the learned Trial Court in the first case. In so far as the second case is concerned i.e. SC No. 86/2014, the learned Addl. Public Prosecutor submits that charge was initially framed under Section 6 of the POCSO Act which provides for punishment for aggravated penetrative sexual assault, but the same was altered to Section 4 of the same Act which provides for punishment for penetrative sexual assault. Section 4 of the POCSO Act having provided a lesser punishment than Section 6 of the same Act, the same also will not amount to altering of the charge. In support of her submission, she relied upon the decision of the Apex Court in the ….case of Pandharinath Vs. State of Maharashtra reported in (2009) 14 SCC 537 . 13. The learned Addl. Public Prosecutor further by referring to the statement of the appellant recorded under Section 313 of the CrPC submits that the appellant admitted of having committed the crime. Considering the reply of the appellant in his examination under Section 313 of the CrPC, it only appears that he is guilty of having committed an offence under Section 6 of the POCSO Act. Further, the Trial Court only showed leniency by convicting and sentencing him under Section 4 of the same Act. She submits that the statement of the prosecutrix have clearly been corroborated by the statement of their mother and also by the medical report in respect of the second case and therefore, no interference is called for by this Court on the conviction and sentenced of the appellant. 14. She submits that the statement of the prosecutrix have clearly been corroborated by the statement of their mother and also by the medical report in respect of the second case and therefore, no interference is called for by this Court on the conviction and sentenced of the appellant. 14. I have heard the submissions advanced by the learned counsels for the rival parties and I have perused the materials available on record including the record that was requisitioned from the Trial Court concerned. 15. Since the learned Amicus Curiae has pointed out that prejudice has been caused to the appellant for violation of Section 216 of the CrPC, it would be apposite to examine this aspect. For the sake of convenience, Section 216 of the CrPC may be abstracted hereunder:- "216. Court may alter charge - (1) Any Court may alter or add to any charge at any time before judgment is pronounced. (2) Every such alteration or addition shall be read and explained to the accused. (3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge. (4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prose cution on the same facts as those on which the altered or added charge is founded." 16. From the above abstract, it may be seen that the Court has the power to alter or add to any further charge at any time before pronouncement of the judgment. The alteration or addition is to be read and explained to the accused. From the above abstract, it may be seen that the Court has the power to alter or add to any further charge at any time before pronouncement of the judgment. The alteration or addition is to be read and explained to the accused. Sub-section (3) of Section 216 further provides that if such alteration or addition to a charge and proceeding with the same immediately with the trial is not likely to prejudice the right of the accused or the prosecutor in the conduct of the case, Court may in its discretion proceed with the trial as if the altered or added charge was the original charge. Further, sub-section (4) of the same Section provides that if the alteration or addition is such that proceeding immediately with the trial is likely to prejudice the accused or the prosecutor, Court may direct a new trial or adjourn the trial as found necessary. 17. In addition to the above provision, Section 217 of the CrPC further provides that whenever a charge is altered or added by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or re-summon and examine any witness, who was already examined with reference to such alteration or addition. 18. The Apex Court in the case of Anant Prakash Sinha alias Anant Sinha (Supra) at paragraphs 17 and 18 of the judgment held as follows:- "17. In addition to what we have stated hereinabove, another aspect also has to be kept in mind. It is obligatory on the part of the court to see that no prejudice is caused to the accused and he is allowed to have a fair trial. There are in-built safeguards in Section 216 CrPC. It is the duty of the trial court to bear in mind that no prejudice is caused to the accused as that has the potentiality to affect a fair trial. It has been held in Amar Singh v. State of Haryana that the accused must always be made aware of the case against them so as to enable him to understand the defence that he can lead. It has been held in Amar Singh v. State of Haryana that the accused must always be made aware of the case against them so as to enable him to understand the defence that he can lead. An accused can be convicted for an offence which is minor than the one he has been charged with, unless the accused satisfies the court that there has been a failure of justice by the non-framing of a charge under a particular penal provision, and some prejudice has been caused to the accused. While so stating, we may reproduce the following two passages from Bhimanna v. State of Karnataka:- "25. Further, the defect must be so serious that it cannot be covered under Sections 464/465 CrPC, which provide that, an order of sentence or conviction shall not be deemed to be invalid only on the ground that no charge was framed, or that there was some irregularity or omission or misjoinder of charges, unless the court comes to the conclusion that there was also, as a consequence, a failure of justice. In determining whether any error, omission or irregularity in framing the charges has led to a failure of justice, this Court must have regard to whether an objection could have been raised at an earlier stage during the proceedings or not. While judging the question of prejudice or guilt, the court must bear in mind that every accused has a right to a fair trial, where he is aware of what he is being tried for and where the facts sought to be established against him, are explained to him fairly and clearly, and further, where he is given a full and fair chance to defend himself against the said charge(s). 26. This Court in Sanichar Sahni v. State of Bihar, while considering the issue placed reliance upon various judgments of this Court particularly on Topandas v. State of Bombay, Willie (William) Slaney v. State of M.P., Fakhruddin v. State of M.P., State of A.P. v. Thakkidiram Reddy, Ramji Singh v. State of Bihar and Gurpreet Singh v. State of Punjab and came to the following conclusion: (Sanichar Sahni case (supra), SCC p. 204, para 27) (P.3790, paras 17 of AIR). "27. Therefore. "27. Therefore. unless the convict is able to establish that defect in framing the charges has caused real prejudice to him and that he was not informed as to what was the real case against him and that he could not defend himself properly, no interference is required on mere technicalities. Conviction order in fact is to be tested on the touchstone of prejudice theory." A similar view has been reiterated in Abdul Sayeed v. State of M.P. 18. We have reproduced the aforesaid passages by abundant caution so that while adding or altering a charge under Section 216 CrPC, the trial court must keep both the aforestated principles in view. The test of prejudice, as has been stated in the aforesaid judgment, has to be borne in mind." 19. In the case of Rafiq Ahmad Alias Rafi (Supra), the Apex Court while examining the meaning of prejudice observed and held that when one speaks of prejudice to an accused, it has to be shown that the accused had suffered some disability or detriment in the protection available to him under the Indian criminal jurisprudence. It is also a settled canon of criminal law that this has occasioned the accused with failure of justice. The other cardinal principles of criminal justice administration is that the Court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage, as this expression is perhaps too pliable. With the development of law, Indian Courts have accepted the following protections as rights of the accused during investigation and trial:- (a) The accused has the freedom to maintain silence during investigation as well as before the Court; (b) Right to fair trial; (c) Presumption of innocence (not guilty); (d) Prosecution must prove its case beyond reasonable doubt. 20. Prejudice to an accused or failure of justice thus, has to be examined with reference to the above aspects. That alone, probably, is the method to determine with some elements of certainty and this discernment whether there has been actual failure of justice. 21. The necessity to invoke Section 216 of the CrPC prior to the pronouncement of the judgment has also been expressed by the Apex Court in the case of Ranbir Yadav (Supra). Further, the opportunity available to the rival parties under Section 217 of the CrPC has also been explained. 22. 21. The necessity to invoke Section 216 of the CrPC prior to the pronouncement of the judgment has also been expressed by the Apex Court in the case of Ranbir Yadav (Supra). Further, the opportunity available to the rival parties under Section 217 of the CrPC has also been explained. 22. There is no argument with regard to the law laid down by the Apex Court on the duty of the Courts while invoking Section 216 of the CrPC. Section 216 of the CrPC mandates that when the charge is altered or additional charge framed, the same has to be explained to the accused and if so required, witness already examined can also be recalled. 23. In the present case, although charge was framed by the Trial Court under Section 8 of the POCSO Act in the first case, the Trial court upon appreciating the evidence was of the view that Section 18 of the same Act was attracted and therefore, proceeded to convict and sentence the appellant under the two Sections. In the second case, although charge was framed under Section 6 of the POCSO Act, the Trial Court upon considering the evidence led by the prosecution found Section 4 of the same Act to be attracted and thus convicted the appellant under the said Section of law. 24. The question therefore, which arises is as to whether there has been alteration of charge as defined under Section 216 of the CrPC. To answer this question, the relevant Sections of law under the POCSO Act may be examined. Section 8 provides for punishment for sexual assault punishable with imprisonment for either not less than 3 (three) years but which may extend to 5 (five) years with fine. Section 18 provides for punishment for attempt to commit an offence which will be punishable with imprisonment extending to 1 of the longest term of imprisonment provided by the offence concerned. Likewise, Section 6 provides for punishment for aggravated penetrative sexual assault punishable with rigorous imprisonment for a term not less than 10 years and which may extend to life imprisonment with fine. Section 4 provides for punishment for penetrative sexual assault punishable with imprisonment for a term not less than 7 years and which may extend to life imprisonment with fine. 25. Section 4 provides for punishment for penetrative sexual assault punishable with imprisonment for a term not less than 7 years and which may extend to life imprisonment with fine. 25. As may be noticed, the Trial Court upon considering the materials available in the evidence found Section 18 and Section 4 of the POCSO Act to be attracted in both the cases respectively. Thereafter, it decided to convict the appellant under the said Sections of law and also sentenced them accordingly. The procedure adopted by the Trial Court in my considered opinion cannot be said to be an alteration of charge, inasmuch as, the same are similar to the original charge framed against the appellant except that the ingredients are slightly different. The appellant has also been sentenced to a lesser term of imprisonment than what is provided against the original charge. 26. The Apex Court in the case of Pandharinath (Supra) held that if an accused is charge of a major offence but is not found guilty there under, he can be convicted of minor offence, if the facts establish indicate that such minor offence has been committed. On the facts of that case, the Apex Court held that if it appeared to the Court that Section 376 of the IPC is not applicable but a lesser offence under Section 376 read with Section 511 of the same Code is made out, the Court is not prevented from taking recourse to and punishing the accused for the commission of such lesser offence. The attempt to commit rape is lesser offence than that of rape, and there is no bar of confronting the act of the accused from Section 376 to Section 511. 27. From the ratio laid down by the Apex Court and considering the facts and circumstances involved in the present case, I am of the considered view that Section 216 of the CrPC will not be attracted. Further, I am also of the considered view that no prejudice can be said to have been caused to the appellant for having been convicted and sentenced under the aforesaid Sections of law, inasmuch as, he was already confronted and charged with the original charge and the punishment of which was more severe than what he was ultimately convicted and sentenced with. 28. 28. Upon having regard to the case in its entirety, I do not find any merit in the appeals and accordingly, both the appeals are dismissed. 29. Registry to send back the LCRs immediately. 30. For the valuable assistance rendered by the learned Amicus Curiae, Mr. T. Lalnunsiama in the two appeals, he shall be entitled to a consolidated fee of Rs. 12,000/-, which shall be paid by the Mizoram State Legal Services Authority on production of a copy of this order.