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2019 DIGILAW 812 (GAU)

Malsawmkima, S/o B. Dorema v. State of Mizoram

2019-07-10

MICHAEL ZOTHANKHUMA

body2019
JUDGMENT : Heard, Mr. T. Lalnunsiama, the learned counsel for the petitioner as well as Mrs. Linda L. Fambawl, the Addl. Public Prosecutor for the State/respondent No. 1. No one appears for the respondent No. 2. 2. This criminal revision petition has been filed under Sections 397/401 CrPC against the Judgment and Order dated 17.01.2019 and Sentence Order dated 31.01.2019, passed by the Special Court, POCSO Act, in Sessions Case No. 80/2014, by which the charge under Section 6 of POCSO Act has been altered to Section 354B IPC and the petitioner convicted under Section 354B IPC. 3. The petitioner has also been sentenced to undergo Simple Imprisonment for four years and to pay a fine of Rs. 20,000/-, in default, to undergo Simple Imprisonment for another six months. 4. The case of the prosecution is that on 01.06.2014, an FIR was submitted by the victim girl, namely, ‘X’, aged 17 years, stating that she had consumed liquor with four of her friends near Zotui Lui, near Chaltlang Dingdi Veng. While she was in a state of intoxication, she was raped (penetrative sexual assault) by the present petitioner and another person, whom she could not identify. Bawngkawn Police Station Case No. 103/2014 dated 01.06.2014 under Section 376D of IPC read with Section 6 of POCSO Act, 2012 was registered and investigated into. 5. The investigation revealed that ‘X’ had been drinking rum with her friends at Chaltlang Dingdi Veng, Aizawl on 01.06.2014. They were later joined by the petitioner and another person. Charge sheet was filed showing a prima facie case had been made out under Section 376D IPC read with Section 6 of POCSO Act, against the petitioner and the unknown person. 6. Charge was framed against the petitioner under Section 6 of POCSO Act. On completion of the Trial Court proceedings, the petitioner was convicted vide Judgment and Order dated 17.01.2019 by the Special Court, POCSO Act under Section 354B IPC, by altering the charge from Section 6 of POCSO Act pursuant to Section 216 CrPC. Consequently, the petitioner was sentenced to undergo four years Simple Imprisonment and to pay a fine of Rs. 20,000/-, in default, to undergo a further six months Simple Imprisonment. The other co-accused is untraceable. 7. Consequently, the petitioner was sentenced to undergo four years Simple Imprisonment and to pay a fine of Rs. 20,000/-, in default, to undergo a further six months Simple Imprisonment. The other co-accused is untraceable. 7. The petitioner’s challenge to the impugned Judgment & Order dated 17.01.2019 is basically to the effect that when a charge is altered, the same has to be read over and explained to the accused as per Section 216(2) CrPC. However, the Trial Court did not read and explain to the petitioner, the altered charge of Section 354B IPC. The alteration of charge was known to the petitioner only when the impugned Judgment and Order was pronounced. The petitioner’s counsel accordingly submits that as Section 216(2) CrPC has not been complied with in letter, the impugned Judgment & Order should be set aside. 8. Mrs. Linda L. Fambawl, the learned Addl. Public Prosecutor, on the other hand submits that no prejudice has been caused to the petitioner by altering the charge from Section 6 of the POCSO Act to Section 354B IPC. She submits that though the petitioner was initially charged with the offence of aggravated penetrative sexual assault, the petitioner has been subsequently convicted for disrobing a woman under Section 354B IPC. As the offence of disrobing a woman is a part of the same transaction involved in penetrative sexual assault, no prejudice has been caused to the petitioner by the Trial Court, convicting the petitioner on a lesser charge. She also submits that the petitioner had also been given the opportunity to adduce evidence, which was however, not availed off by the petitioner. She accordingly submits that the present Criminal Revision Petition should be dismissed. 9. I have heard the learned counsels for the parties. 10. The only question that has to be decided in this Criminal Revision Petition is whether the learned Trial Court was required to read over and explain to the accused/petitioner, the altered charge under Section 354B IPC. 11. In view of the above, Section 216 CrPC is reproduced below:- “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. 11. In view of the above, Section 216 CrPC is reproduced below:- “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 prosecution on the same facts as those on which the altered or added charge is founded.” 12. In the present case, though charge had been framed for penetrative sexual assault against the petitioner, the Court did not find him guilty of the charge. Instead, the Trial Court convicted the petitioner of a lesser charge of disrobing a woman under Section 354B of IPC. The charge of penetrative sexual assault covers within its ambit, the act of disrobing a woman by force. Accordingly, the act of disrobing a woman by force, for completing the act of aggravated penetrative sexual assault, cannot be said to be a distinct offence vis-à-vis aggravated penetrative sexual assault, as it is an act which is a part of/component for completing the offence of aggravated penetrative sexual assault. 13. In the present case, the evidence given by X is to the effect that – “I know the accused person present in Court today. He is also hailing from our locality Edenthar Veng. I was born on 05.10.1997. I have four elder siblings. 13. In the present case, the evidence given by X is to the effect that – “I know the accused person present in Court today. He is also hailing from our locality Edenthar Veng. I was born on 05.10.1997. I have four elder siblings. On 01.06.2014, I along with three of my friends went to Bawngkawn and wait for our friend Mama late arrived and brought two bottles of liquor and we consumed the said liquor at the step near Chaltlang. The accused and some of his friends were also present their consumed liquor. One of my friends Nuhliri called them and they joined us and consumed liquor. I was very drunk and I cannot move and my girlfriends left me and they all went home. I slept on the step as I cannot move and the accused and one of his friends carry me to a place just above the step there is a ground almost like a cave. Though I cannot move my body I am conscious and I know everything. The accused Malsawmkima try to remove my pant and panty to which I resist and I kicked him as I have no strength he succeeded in seducing me. After Malsawmkima had sexual intercourse with me his friend also whom I do not know his name also had sexual intercourse with me. Later my mother came to the place of occurrence and take to our home. At the same night we reported the matter to Bawngkawn PS and I submitted FIR and I was taken to Civil Hospital, Aizawl for medical examination.” 14. The evidence of the mother of X is to the effect that she went looking for X when she was informed that X was seen to be in a very drunk condition. On finding her daughter X, she found that X was lying naked along with two other persons who were fully naked, the petitioner being one of them. The Doctor’s report is to the effect that there was bruising/laceration of external genitalia and her hymen was torn/lacerated at 6 O’clock position. 15. The Apex Court in the case of Pandharinath Vs. State of Maharashtra, reported in (2009) 14 SCC 537 has stated at paragraphs 17, 18, 19 and 20 as follows:- “17. The Doctor’s report is to the effect that there was bruising/laceration of external genitalia and her hymen was torn/lacerated at 6 O’clock position. 15. The Apex Court in the case of Pandharinath Vs. State of Maharashtra, reported in (2009) 14 SCC 537 has stated at paragraphs 17, 18, 19 and 20 as follows:- “17. It is a well settled legal position that if an accused is charged of a major offence but is not found guilty thereunder, he can be convicted of minor offence, if the facts established indicate that such minor offence has been committed. Reference in this regard may be made to the decision of this Court in State of Maharashtra v. Rajendra Jawanmal Gandhi, (1997) 8 SCC 386 ; and Tarkeshwar Sahu v. State of Bihar. 18. It is true that there was no charge under Section 376 read with Section 511 IPC. However, under Section 222 of the CrPC when a person is charged for an offence he may be convicted of an attempt to commit such offence although the attempt is not separately charged. 19. This Court in Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577 had an occasion to deal with Section 222 of the CrPC. The Court came to the conclusion that when an accused is charged with a major offence and if the ingredients of major offence are not proved, the accused can be convicted for minor offence, if ingredients of minor offence are available. The Court observed as follows in relevant para: 16. What is meant by ‘a minor offence’ for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-à-vis the other offence. 20. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-à-vis the other offence. 20. So, if it appears to the Court that Section 376 IPC is not applicable but a lesser offence under 376 read with Section 511 IPC 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 converting the act of the accused from Section 376 to Section 511.” 16. In the case of Rafiq Ahmad Alias Rafi Vs. State of Uttar Pradesh, reported in (2011) 8 SCC 300 , the Apex Court has held at paragraph 35 as follows:- “35. When we speak of prejudice to an accused, it has to be shown that the accused has suffered some disability or detriment in the protections 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. One of the other cardinal principles of criminal justice administration is that the courts 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 to and 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. The accused may choose to maintain silence or make complete denial even when his statement under Section 313 of the Code of Criminal Procedure is being recorded, of course, the Court would be entitled to draw inference, including adverse inference, as may be permissible to it in accordance with law; (b) Right to fair trial; (c) Presumption of innocence (not guilty); (d) Prosecution must prove its case beyond reasonable doubt.” 17. In the present case, the question of whether the Court has to separately read and explain to the accused/petitioner the altered charge has to be considered, inasmuch as, the charge was altered from Section 6 of the POCSO Act to Section 354B IPC, after the final hearing was concluded and prior to the time of pronouncement of the impugned Judgment and Order. 18. As stated earlier, this Court has found that the charge of penetrative sexual assault covers within its ambit, the act of using criminal force to disrobe a woman or compel her to be naked. The victim girl was 17 years of age at the time of the incident and thus the disrobing of the victim girl to make her naked for the purpose of having sexual intercourse with the girl below 18 years is prohibited under the POCSO Act. Further, the evidence of the victim girl is to the effect that the petitioner tried to remove her pant and panty to which, she resisted and kicked him. However, the petitioner thereafter succeeded in having sexual intercourse with the victim girl, prior to the second person having force sexual intercourse with the victim girl. Though the learned Trial Court did not find the petitioner guilty of having committed sexual intercourse with the victim girl, the evidence reveals that the mother of the victim girl found the victim girl naked along with the petitioner and another person. The above evidence clearly shows that the victim girl had been disrobed and made naked. As the disrobing of the victim girl to make her naked is not a distinct offence, but is a lesser offence, inter-related to the more heinous offence of penetrative sexual assault, this Court does not find any infirmity with the conviction of the petitioner on the lesser charge of Section 354B of IPC. Further, as the petitioner had been given an opportunity to challenge the evidence of the prosecution witnesses during cross-examination and also bring out his own defence witness, in respect of the statements of the victim girl and her mother, this Court finds that no prejudice had been caused to the petitioner by the Trial Court, in fixing a date for reading out and explaining to the petitioner that the more serious charge under Section 6 of POCSO Act, had been altered to the lesser charge of Section 354B IPC. 19. 19. This Court finds that the procedure mentioned in Section 216(2) CrPC, which states that every alteration of charge shall be read and explained to the accused, cannot be read independently of the other sub-sections of Section 216 (2) CrPC. The charge framed earlier under Section 6 of the POCSO Act had also included within it the offence of using criminal force for disrobing the victim girl to make her naked under Section 354B IPC. Section 216(2) CrPC no doubt requires that every alteration or addition of charge shall be read and explained to the accused. In the present case, there is no additional charge framed against the petitioner. However, the charge had been altered from the more serious charge of Section 6 of the POCSO Act to the lesser charge of Section 354B IPC. It is the understanding of this Court that unless the accused is prejudiced in his defence, due to the altered charge not being read and explained to the accused, then only would it be required for the Trial Court to read and explain to the accused the altered charge. However, as the offence under Section 354B IPC is inter-related/closely related to the offence under Section 6 of the POCSO Act and the alteration of charge had been done after the final hearing had taken place and prior to/at the time the Judgment had been delivered by the Trial Court, Section 216(2) CrPC need not be applied literally, as the altered charge is also a part of the original charge. In that context, this Court finds that no prejudice had been caused to the petitioner in not going by the letter of Section 216 (2) CrPC, as Section 354B IPC was already implicit at the time of framing of charge under Section 6 of the POCSO Act. Accordingly, this Court is not inclined to interfere with the conviction of the petitioner under Section 354B IPC. However, on considering the sentence imposed upon the petitioner, this Court is of the view that the petitioner should be sentenced to a lesser period in view of his young age at the time of the incident i.e. he was two months short of completing 22 years at the time of the offence on 01.06.2014. 20. However, on considering the sentence imposed upon the petitioner, this Court is of the view that the petitioner should be sentenced to a lesser period in view of his young age at the time of the incident i.e. he was two months short of completing 22 years at the time of the offence on 01.06.2014. 20. In view of the above reasons, while the conviction of the petitioner under Section 354B IPC is not interfered with, the petitioner is however sentenced to undergo Simple Imprisonment for three years and to pay a fine of Rs. 20,000/-, in default, Simple Imprisonment for a further period of six months. Thus, though the impugned Judgment and Order dated 17.01.2019 convicting the petitioner under Section 354B of IPC is not interfered with, the Sentence Order dated 31.01.2019 is modified to the extent indicated above. Send back the LCR.