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2020 DIGILAW 114 (GAU)

Lalruatsanga v. State Of Mizoram

2020-02-03

MICHAEL ZOTHANKHUMA, NELSON SAILO

body2020
JUDGMENT Michael Zothankhuma, J. - Heard Mr. C.Lalfakzuala, learned Amicus Curiae appearing for the appellant as well as Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor, Mizoram. 2. The appellant has challenged the impugned Judgment & Order dated 10.07.2018 passed by the Special Court, POCSO Act, Aizawl in SC No. 30 of 2017, by which the appellant has been convicted under Section 6 of the POCSO Act, 2012 and sentenced to undergo 12 years Rigorous Imprisonment with a fine of Rs.20,000/-, in default S.I. for 6 months, vide Sentence Order dated 16.07.2018. 3. The prosecution case in brief is that an FIR was submitted with the Officer-in-Charge, Vaivakawn Police Station, Aizawl on 02.11.2016 by one Lalchawimawii, W/o Lalrinenga, R/o Central Jail Veng, Aizawl, stating that her daughter aged 15 years, was sexually assaulted by the complainant/informants younger brother, Lalruatsanga aged 27 years on 27.10.2016. In pursuance to the FIR that had been submitted on 02.11.2016, Vaivakawn Police Station Case No.179/2016 was registered under Section 6 of the POCSO Act, 2012 read with Section 506 IPC on 02.11.2016. 4. The victim girl was medically examined on 02.11.2016 by a Medical Doctor and the appellant was also arrested on 02.11.2016. During investigation of the case by the Police I.O., the statement of 6 (six) prosecution witnesses were recorded and the victim girl also give her judicial statement to the Judicial Magistrate under Section 164 Cr.P.C on 04.11.2016. Thereafter, charge sheet was filed on 18.01.2017. 5. Charge under section 6 of the POCSO Act, 2012 was framed against the appellant on 15.03.2017, wherein the appellant pleaded not guilty and prayed for trial. After examination of 6 (six) prosecution witnesses and 3 (three) defense witnesses, the appellant was examined by the Trial Court under Section 313 Cr.P.C on 03.10.2017, where he denied having committed any sexual assault upon the victim girl. 6. The learned Trial Court, after hearing the parties found the appellant to be guilty and convicted him under section 6 of the POCSO Act, 2012, vide the impugned Judgment & Order dated 10.07.2018. Sentence hearing was held on 16.07.2018 and the appellant was convicted vide Sentence Order dated 16.07.2018, whereby he was punished to undergo R.I. for 12 years with a fine of Rs.20,000 /-, in default S.I. for 6 months. 7. Being aggrieved, the appellant has filed the present appeal. 8. Mr. Sentence hearing was held on 16.07.2018 and the appellant was convicted vide Sentence Order dated 16.07.2018, whereby he was punished to undergo R.I. for 12 years with a fine of Rs.20,000 /-, in default S.I. for 6 months. 7. Being aggrieved, the appellant has filed the present appeal. 8. Mr. C. Lalfakzuala, the learned Amicus Curiae submits that the paper book does not contain the statement of the victim made before the police. He also submits that there is a difference in the statement given by the victim girl before the Judicial Magistrate on 04.11.2016 and in her evidence given before the Court on 29.03.2017. He submits that while the evidence of the victim girl was to the effect that the appellant had undressed the victim by removing her short pant and that he had also undressed himself, the same was not a part of the statement given by the victim girl to the Judicial Officer on 04.11.2016. He submits that the above fact shows that the victim girl had improved upon her earlier statement during the trial proceedings. 9. The learned Amicus Curiae also submits that while Section 27 of the POCSO Act, 2012 required the victim girl to be examined by a woman doctor, the records showed that the medical examination had been conducted by a male doctor, which is against the statutory law. He also submits that the statement of the victim made before a Magistrate or a Police Officer has to be done in the presence of the parents of the child or any other person in whom the child has trust or confidence, as required under Section 26 of the POCSO Act, 2012. As neither the parents or any other person who had the trust and confidence of the child were not present at the time of examination of the victim girl by the Police or Magistrate, the said statement was not admissible in evidence. He also submits that there is a delay of around 6 days in submission of the FIR, for which no proper explanation has been given, which leads to an inference that the alleged incident has been made up. 10. He also submits that there is a delay of around 6 days in submission of the FIR, for which no proper explanation has been given, which leads to an inference that the alleged incident has been made up. 10. The learned Amicus Curiae also submits that the alleged incident of rape, as claimed by the victim girl is suspect, as the victim girl did not raise any alarm, even though the grandmother of the victim girl was sleeping in the same building, albeit in a different room while the incident of rape was taking place. The last contention of the learned Amicus Curiae is that as per Section 6 of the POCSO Act, 2012, the punishment for aggravated penetrative sexually assault is for a minimum term of not less than 10 years, but which may extend to imprisonment for life. He submits that the learned Trial Court has sentenced the appellant to undergo Rigorous Imprisonment for 12 years without giving any reason as to why the minimum sentence of 10 years had not been given. He submits that a reading of the Sentence Order dated 16.07.2018 passed by the Trial Court clearly shows that the appellant was not heard properly on the quantum of sentence and as such, the case should be remanded back to the learned Trial Court, so that a proper hearing can take place on the quantum of sentence, wherein the appellant will also have the opportunity to submit material facts and documents with respect to the sentence to be imposed. In this respect, he has relied upon the Judgment of the Apex Court in the case of Santa Singh Vs. State of Punjab, reported in AIR 1976 SC 2386 . 11. Mrs. Linda L. Fambawl, the learned Addl. Public Prosecutor, on the other hand, submits that there is no contradiction in the statements made by the victim girl before the Judicial Magistrate on 04.11.2016 and at the time of recording her evidence on 29.03.2017. She also submits that the victim girl had given her statement before the police and the same is part of the Trial Court records. Public Prosecutor, on the other hand, submits that there is no contradiction in the statements made by the victim girl before the Judicial Magistrate on 04.11.2016 and at the time of recording her evidence on 29.03.2017. She also submits that the victim girl had given her statement before the police and the same is part of the Trial Court records. She also submits that the delay in filing the FIR has been explained by the mother of the victim girl, who stated that she did not submit the FIR immediately because the appellant was her younger brother and the same was done, only after having consultation with other relatives, wherein it was finally deciding to submit an FIR to the police. 12. The learned Addl. Public Prosecutor also submits that there was no reason for the victim girl to falsely allege rape/sexual assault against her uncle, inasmuch as, no case of enmity or any other reason had been stated to that effect by the prosecution or defence witnesses during the trial or at any other time. The learned Addl. Public Prosecutor also submits that the medical report made by the male Doctor on 02.11.2016, which shows that there was an old tear in the victim girls hymen, supports the statement of the victim girl that she had been sexually assaulted. She also submits that there is no bar for a male Doctor to examine the victim girl under Section 27 of the POCSO Act, 2012, especially when the victim girl has given her consent for being examined by a male Doctor. She also submits that the appellant has not taken any ground to the effect that the examination of the victim girl by a male Doctor has prejudiced the appellant in any manner during the trial. 13. The learned Addl. Public Prosecutor also submits that though the victim girl was living with her uncle and grandmother at the time of the incident, as she was helping them out due to her grandmothers heart problem, the victim girl did not return to her grandmothers home after the incident and immediately went to her parents house after school, which lends credence to the victim girls statement that the appellant had sexually assaulted her. 14. 14. She also submits that the statement of the victim girl is to the effect that her uncle/appellant used to try and touch her breast and sleep with her earlier, which she resisted and that he had threatened her that he and his friends would rape her. 15. The learned Addl. Public Prosecutor thus submits that as there is no infirmity in the conviction and sentence of the appellant by the learned Trial Court, the present appeal should be dismissed. 16. We have heard the learned counsels for the parties. 17. A reading of the appeal petition filed by the appellant is to the effect that the allegation of sexual assault made by him upon his niece is fabricated. The same had been done due to the victims mother being envious and aggrieved that the parental property was going to be divided into 2 plots, without any portion of it going to the share of the victims mother. Thus, the stand of the appellant in his appeal petition is that the fabricated case of rape has been made with an aim to deprive the appellant of a share of the parental property. The above contention of the appellant in his appeal petition has never been raised at any time by the appellant during the proceedings before the Trial Court. There is no evidence with regard to the above contention during the recording of evidence and even during examination of the defense witnesses, which includes the present appellant, who was D.W-3. Thus, the point raised by the appellant in his appeal petition with regard to the case being a fabricated case due to problems regarding property cannot be considered by this Court, as the same seems to be an afterthought. 18. On a perusal of the Lower Court Records, it is seen that the victim girl made a statement before the police regarding the sexual assault, which is similar to the statement given by her before the Judicial Magistrate on 04.11.2016 and in her evidence given before the Court on 29.03.2017. 19. In her evidence given before the Court on 19.03.2017, the victim girl has stated as follows: 'I know the accused Lalruatsanga. He is my maternal uncle. The accused and my grandmother with a 9 yrs old girl who is the daughter of my late maternal aunty lived together at Ropaiabawk. 19. In her evidence given before the Court on 19.03.2017, the victim girl has stated as follows: 'I know the accused Lalruatsanga. He is my maternal uncle. The accused and my grandmother with a 9 yrs old girl who is the daughter of my late maternal aunty lived together at Ropaiabawk. My maternal uncle accused is working as Jail Warder at Central Jail, Aizawl. My grandmother asked me to live with them as she wanted me to help her with domestic chores. So I lived with them in the month of October 2016. My uncle accused have to go on duty at night sometimes. So on 27.10.2016, my uncle told me to wake him up at 11:00 pm as he have to go on duty. I was reading Class-XI and I have to study for my coming exam till late at night. So at 10:56 pm on this night, I wake up my uncle as requested by him. He did not wake up so I went to his bed again to wake him up. Then my uncle suddenly pulled me to his bed and he was on top of me and he physically restrained me and I could not breath properly and I could not shouted. He told me if I did not make any sound, he would not physically assault me. Then he undressed my short pant and he also undressed himself and committed rape upon me. After he finished there was blood coming out of my private part and I had gone to the bathroom and clean myself. He himself dressed up and went to his duty. The following day I could not tell the incident to my grandmother as she was suffering a weak heart/she was having heart problems. So the following day, I went to my school and then I did not want to go home to my grandmothers house and I go home straight to my parents house at Central Jail Veng. Then, I told all the incident to my mother and my mother related what I have told her to my father when he came home from work and so they have submitted FIR. Then, I told all the incident to my mother and my mother related what I have told her to my father when he came home from work and so they have submitted FIR. Before the present incident, my uncle tried to touch at my breast and sometimes try to sleep with me but I resist his advanced and he had threatened me saying I will come with my friends and I will let my friends rape you. I was taken to Medical Officer for physical examination. XXX by Ld. Defense Counsel: It is a fact that I did not inform the incident to my parents through telephone as I was having examination on that day. It is not a fact that the accused did not sexually assaulted me. It is a fact that I am not deposing falsely in the court today.' Just because the victim girl did not mention that the appellant had undressed her by removing her short-pant and that he had undressed himself, at the time of the statement given by victim girl to the Judicial Officer on 04.11.2016, does not mean that the victim girl had improved upon her earlier statement. The removal of the clothes from the victim girl is a sine qua non for committing sexual assault upon the victim girl. Accordingly, we do not find any reason to doubt the evidence given by the victim girl in the Court just because all the minute facts and particulars were not mentioned during the time of giving statement before the Judicial Officer. 20. Though Section 27(2) of the POCSO Act, 2012 requires the victim girl to be examined by a female doctor, the records show that the medical examination had been conducted by a male doctor, after the victim girl had given her consent for the same. Though the mandate of Section 27(2) of the POCSO Act, 2012 requires that the medical examination of a victim girl child should be done by a woman doctor, the same has been designed to protect the child from embarrassment and to ensure that she is comfortable, as it was thought to be in the best interest of the girl child. It is not meant to be a safeguard in favour of the accused. It is not meant to be a safeguard in favour of the accused. Further, in the present case, the appellant has not been able to show what prejudice has been caused to him just because the victim was examined by the male doctor. Though, the failure of the victim girl to be examined by a woman doctor is not in consonance with Section 27(2) of the POCSO Act, 2012, it should however be remembered that rules of procedure are meant to advance and not to obstruct the cause of justice. 21. It should be kept in mind that in many remote areas of the country, especially in villages, there is only one doctor looking after several villages. If the sole doctor happens to be a male doctor, a victim girl who has been sexually assaulted is to be examined, has no choice but to be examined by the male doctor. In that context, it would be a travesty of justice if an accused is acquitted on the ground that the examination of the victim girl was not done by a woman doctor. Accordingly, we do not find any reason to acquit the appellant only on the ground that the victim girl was not examined by a woman doctor, as the requirement of a victim girl being examined by a woman doctor is a rule of procedure, the failure of which would vitiate the trial, only if, prejudice has been caused to the accused. However, in the present case, the appellant has not been able to show as to how he has been prejudiced by the victim girl being examined by a male doctor. 22. With regard to the submission of the learned Amicus Curiae that Section 26 of the POCSO Act, 2012 had been violated, inasmuch as, neither the parents or any other person who had the trust and confidence of the girl child were present at the time of examination of the victim girl by the Police or the Magistrate and as such, the statement of the victim girl was not admissible in evidence, we find that neither the parents, nor any other person who had the trust and confidence of the girl child was present at the time of examination of the victim girl by the Police or the Magistrate. However, it has to be understood that the reason for the persons of the parents or a person who had the trust and confidence of the victim child being present at the time of examination by the Police or the Magistrate is to ensure the interest of the child and to avoid the child having a harrowing experience. 23. The POCSO Act, 2012 centers around child sexual abuse and the protection of the child. Most children do not report sexual abuse for fear of social stigma and that they will not be treated sympathetically. Further, there is an unwillingness implicate relatives, who hold position of trust. The story told by the victimized child is usually the foundation of a case under the POCSO Act, 2012. As a sexual abuse victim suffers psychologically due to the trauma caused to them, Section 26 of the POCSO Act, 2012 has been inserted to ensure that the victim suffers minimum trauma, while recalling the event. The disclosure made by the victim can be a harrowing experience and it is in that context that Section 26 of the POCSO Act, 2012 has allowed the victims parents or any other person, who has the trust and confidence of the victim, to be present at the time of examination of the victim by the police. Thus, Section 26 of the POCSO Act has been made to minimize the trauma of the victim, while being questioned by the enforcement agencies. The above is not meant to be a safeguard made in favour of the accused but has been made in the interest of the victim child. Just because the parents or any other person as mentioned above, were not present at the time of examination of the victim girl by the police does not mean that the same would lead to an automatic acquittal of the accused or that it had vitiated the trial. Further, we find the evidence of the victim girl to be reliable and trustworthy. The appellant has not been able to show as to what prejudice had been caused to him due to the above. Accordingly, we do not find any reason to acquit the accused due to the above ground, as the same does not cause any prejudice the appellant. 24. The appellant has not been able to show as to what prejudice had been caused to him due to the above. Accordingly, we do not find any reason to acquit the accused due to the above ground, as the same does not cause any prejudice the appellant. 24. The learned Amicus Curiae also submitted that the victim girl did not raise an alarm during the alleged act thereby proving the fact that no such incident had taken place. However, just because the victim did not raised an alarm does not mean she has consented to the said Act. Further, even if it is assumed that the victim girl had consented to the said sexual act, the victim girl being 15 years old, she was not capable of giving consent and the same would have in any event amounted to rape. 25. The submission of the learned Amicus Curiae that as a general rule, an accused should be sentenced to the minimum period of sentence provided in the statute and that a sentence beyond the minimum period can be given only after special reasons are given, cannot be accepted by us. Section 6 of the POCSO Act, 2012 provides as follows:- '6. Punishment for aggravated penetrative sexual assault.Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.' A bare perusal of the above provision clearly shows that the Trial Court can pass a sentence for a term which shall not be less than 10 years, but which may be extend to 10 years imprisonment for life and shall also be liable to fine. There is nothing in the provision which provides that the minimum sentence of 10 years has to be given and that sentence beyond 10 years has to be supported by special reasons. Depending upon the facts and circumstances of the crime, the Trial Court has the discretion to pass a sentence as provided in Section 6 of the POCSO Act, 2012, when the accused is convicted of the crime. Also the Apex Court in para 8 of the case Deo Narain Mandal Vs. State of U.P., reported in (2004) 7 SCC 257 and in para 14 and 26 of the case Shyam Narain Vs. Also the Apex Court in para 8 of the case Deo Narain Mandal Vs. State of U.P., reported in (2004) 7 SCC 257 and in para 14 and 26 of the case Shyam Narain Vs. State (NCT of Delhi), reported in (2013) 7 SCC 77 has stated as follows: Deo Narain Mandal (Supra) has stated at para 8 as follows:- '8. This brings us to the next question in regard to the reduction of sentence made by the High Court. In criminal cases awarding of sentence is not a mere formality. Where the statute has given the court a choice of sentence with maximum and minimum limit presented then an element of discretion is vested with the court. This discretion cannot be exercised arbitrarily or whimsically. It will have to be exercised taking into consideration the gravity of offence, the manner in which it is committed, the age, the sex of the accused, in other words, the sentence to be awarded will have to be considered in the background of the facts of each case and the court while doing so should bear in mind the principle of proportionality. The sentence awarded should be neither excessively harsh nor ridiculously low.' Shyam Narain (Supra) has stated at para 14 and 26 as follows:- '14. Primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realise that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes. It serves as a deterrent. True it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. It serves as a deterrent. True it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. While carrying out this complex exercise, it is obligatory on the part of the Court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim. 26. The legislature under Section 376(2)(f) IPC while prescribing a minimum sentence for a term which shall not be less than ten years, has also provided that the sentence may be extended up to life. The legislature, in its wisdom, has left it to the discretion of the court. Almost for the last three decades, the Supreme Court has been expressing its agony and distress pertaining to the increased rate of crimes against women. In the present case, the victim was both physically and psychologically vulnerable. The eight year old girl, who was supposed to spend time in cheerfulness, was dealt with animal passion and her dignity and purity of physical frame was shattered. The plight of the child and the shock suffered by her can be well visualized. The torment on the child has the potentiality to corrode the poise and equanimity of any civilized society. In such circumstances, the age-old wise saying that 'child' is a gift of the providence' enters into the realm of absurdity. The young girl, with efflux of time, would grow with a traumatic experience, an unforgettable shame. She shall always be haunted by the memory replete with heavy crush of disaster constantly echoing the chill air of the past forcing her to a state of nightmarish melancholia. She may not be able to asset the honour of a woman for no fault of hers.' 26. In the case of Santa Singh Vs. She shall always be haunted by the memory replete with heavy crush of disaster constantly echoing the chill air of the past forcing her to a state of nightmarish melancholia. She may not be able to asset the honour of a woman for no fault of hers.' 26. In the case of Santa Singh Vs. State of Punjab, reported in AIR 1976 SC 2386 , the Apex Court has held at para 4 as follows:- 'The hearing on the question of sentence would be rendered devoid of all meaning and content and it would become an idle formality it it were confined merely to hearing oral submissions without any opportunity being given to the parties and particularly to the accused, to produce material in regard to various factors bearing on the question of sentence, and if necessary, to lead evidence for the purpose of placing such material before the court.' 27. In the present case, the Sentence Order dated 16.07.2018 clearly shows that the appellant had been heard at the time of sentencing and that a weeks time had been given for preparation for the same, as the appellant had been convicted on 10.07.2018. As per the Judgment of the Apex Court in Santa Singh (supra), the appellant should be given the opportunity to submit material facts and documents with respect to the sentence to be imposed. However, the learned Amicus Curiae has not been able to inform this Court, as to what material facts and documents the appellant wanted to submit to the Trial Court at the time of sentence hearing, and in what aspect, so that he was given the minimum sentence of 10 years rigorous imprisonment. Accordingly, we do not find any ground to interfere with the sentence imposed upon the appellant. 28. The medical examination of the victim was done after 6/7 days of the incident. The medical examination report dated 02.11.2016 states that there was an old tear in the victims hymen at 5 o clock position. There was no bruising of external genital area and no marks of violence on the body. 29. In the case of B.C Deva alias Dyana vs. State of Karnataka, reported in (2007) 12 SCC 122 , the Honble Supreme Court has held at para 18 as follows:- '18. There was no bruising of external genital area and no marks of violence on the body. 29. In the case of B.C Deva alias Dyana vs. State of Karnataka, reported in (2007) 12 SCC 122 , the Honble Supreme Court has held at para 18 as follows:- '18. The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the gynaecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted.' In view of the law laid down by the Apex, as quoted above, we are of the view that just because there were no bruising of the external genital area and marks of violence on the victim does not mean that she was not subject to forcible sexual assault. It should be remembered that the victims hymen was found to be torn albeit on old tear, as the medical examination took place 6/7 days after the incident. 30. As stated by the learned Addl. Public Prosecutor, there is no case of enmity made out between the appellant and the family of the victim. In fact, the appellant is the Uncle of the victim and is supposed to hold a position of trust in the family. The delay of 6/7 days in filing the FIR has been clearly explained by the victims mother, where she states that family consultation took place with regard to whether an FIR should be filed, as the accused/appellant was her younger brother. It was only after the family decided to file an FIR that the FIR was filed. We do not find any reason to doubt the reason for the delay in filing the FIR. The fact that the victim did not return to her grandmothers house after the incident and the fact that the medical report supports the fact of sexual assault, lends further support to the fact that the appellant (Uncle) had committed aggravated penetrative sexual assault on his niece. The fact that the victim did not return to her grandmothers house after the incident and the fact that the medical report supports the fact of sexual assault, lends further support to the fact that the appellant (Uncle) had committed aggravated penetrative sexual assault on his niece. Accordingly, we do not find any ground to interfere with the impugned judgment of the learned Trial Court. As we find no infirmity with the impugned Judgment & Order dated 10.07.2018 and the Sentence Order dated 16.07.2018, the appeal stands dismissed. 31. In appreciation of the assistance provided by the learned Amicus Curiae, his fee his fixed at Rs. 8,500/- (Rupees eight thousand five hundred) only to be paid by the Mizoram State Legal Services Authority. Send back the LCR.