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2020 DIGILAW 446 (GAU)

Lalventhanga v. State Of Mizoram

2020-04-20

MICHAEL ZOTHANKHUMA, NELSON SAILO

body2020
JUDGMENT Michael Zothankhuma, J. - Heard Mr. Johny L. Tochhawng, learned Amicus Curiae appearing for the appellant alongwith Mr. C. Zoramchhana, learned Public Prosecutor, Mizoram. 2. This appeal has been preferred against the impugned Judgment & Order dated 08.10.2018 passed by the Special Court, POCSO, Champhai in Sessions Case No. 70/2016, by which the appellant has been convicted under Section 6 of the POCSO Act, 2012 and sentenced to undergo 18 years Rigorous Imprisonment and to pay a fine of Rs. 5,000/-, in default S.I. for 2 months, vide sentence passed on 11.10.2018. 3. The brief facts of the case is that an FIR was lodged by one Sh. Ramthanpuia, Resident of Biate, Biakin Veng, with the Khawzawl Police Station on 28.02.2015, on the ground that Sh. Ramthanpuia''s minor daughter, namely "X", age 5 years, had been sexually assaulted by the appellant on 26.02.2015, between 2 to 3 pm. On the basis of the FIR lodged by the said Sh. Ramthanpuia, Khawzawl P.S. Case No. 12/2015 under Section 6 of the POCSO Act was registered against the appellant. 4. Investigation was started by the police and the minor victim girl was also sent to the Medical Officer for medical examination on 28.02.2015. The Medical Officer made a report that there was no sign of injury on the body of the victim, but the hymen was torn/ruptured. After examining the complainant, other witnesses, the victim and after interrogation of the appellant, the case I.O. found a prima facie case under Section 6 of the POCSO Act against the appellant. Accordingly, charge sheet was submitted by the case I.O. on 18.04.2016. After the case was committed to the Special Court, POCSO Act, charge was framed against the appellant under Section 6 of the POCSO Act on 28.06.2016. 5. During the trial before the learned Trial Court, 9 out of the 11 prosecution witnesses were examined. Thereafter, the statement of the appellant under Section 313 Cr.P.C was recorded by the Trial Court. Thereafter, the appellant was convicted under Section 6 of the POCSO Act by the Trial Court on 08.10.2018 and sentence hearing was held on 11.10.2018. The appellant was thereafter sentenced to undergo R.I. for 18 years with a fine of Rs. 5,000/-, in default S.I. for 2 months. 6. Being aggrieved by the impugned Judgment & Sentence Order passed on 08.10.2018 and 11.10.2018, the appellant has filed the present appeal. 7. The appellant was thereafter sentenced to undergo R.I. for 18 years with a fine of Rs. 5,000/-, in default S.I. for 2 months. 6. Being aggrieved by the impugned Judgment & Sentence Order passed on 08.10.2018 and 11.10.2018, the appellant has filed the present appeal. 7. The learned Amicus Curiae submits that the impugned Judgment & Order dated 08.10.2018 and the Sentence Order dated 11.10.2018 should be set aside, inasmuch as, no opportunity had been given to the appellant to adduce defence evidence by the Trial Court, even at the time of recording of the statement of the appellant under Section 313 Cr.P.C. He also submits that though the appellant was convicted under Section 6 of the POCSO Act, the learned Trial Court did not make any discussion with regard to Section 6 of the POCSO Act in the impugned Judgment & Order. He submits that the Trial Court only discussed Section 9 of the POCSO Act. The learned Amicus Curiae also submits that the FSL report and the cross examination of the Doctor (PW-8) does not prove that the appellant was the perpetrator of the crime. The learned Amicus Curiae also submits that on a total reading of the evidence on record, the appellant, could at best, have been convicted under Section 10 of the POCSO Act and not under Section 6 of the POCSO Act, by altering the charge from Section 6 to Section 10 of the POCSO Act, 2012. 8. Mr. C. Zoramchhana, learned Public Prosecutor submits that there is no infirmity with the impugned Judgment & Order passed by the learned Trial Court. He submits that the facts as narrated by the witnesses clearly prove that the appellant is the perpetrator of the crime against the victim girl. He also submits that the requirements for the Court to convict a person under Section 6 of the POCSO Act, as can be seen from the evidence, are present and the same are in consonance with Section 3 & 5 of the POCSO Act. He accordingly submits that this Court should not interfere with the impugned Judgment & Order. 9. We have heard the learned counsels for the parties. 10. He accordingly submits that this Court should not interfere with the impugned Judgment & Order. 9. We have heard the learned counsels for the parties. 10. The evidence adduced by the witnesses goes to show that, prior to the aggravated penetrative sexual assault made by the appellant against the prosecutrix (X), the appellant had also allegedly pulled another minor girl, namely, Lalruatpuii, age about 6 years, into his bed room and kissed her on the cheek. However, on the pretext of passing urine, the said Lalruatpuii had run out of the house of the appellant. 11. The evidence of the mother of prosecutrix (X) i.e., PW No. 3 is to the effect that on 26.02.2015 after collecting wood, she had reached home. Thereafter, prosecutrix (X) came home and her friend Lalruatpuii also entered the house. Lalruatpuii informed PW-3 that the appellant had taken her inside the bedroom and hugged her. He kissed her on her cheeks before managing to run out from the house. After Lalruatpuii went home, PW-3 asked her daughter, prosecutrix (X) as to whether the appellant had sexually assaulted her or not. Prosecutrix (X) informed PW-3 that the appellant had taken her inside his room and taken out his male organ and she cried. Prosecutrix (X) did not want to disclose anything beyond that. PW-3 then called her husband over mobile, as he was cutting wood in the jungle. After her husband reached the house, they took the prosecutrix (X) to a Doctor, who advised them to submit an FIR first before the police. After consulting other relatives, they went to Khawzawl and submitted an FIR in the Police Station. 12. The evidence of the father of prosecutrix (X) (PW-1) is to the effect that, while he was cutting wood in the jungle on 26.02.2015, his wife called him on mobile at around 4:00 PM, informing him that prosecutrix (X) had been sexually assaulted by their neighbor (appellant) at his residence and asked him to rush home immediately. When he reached home, he found that his wife and daughter were not present. When he learnt that they had gone to the hospital at Biate, he also rushed to the hospital. The Doctor at Biate advised them to submit an FIR first before the police and accordingly, they went home. After reaching home, PW-1 asked his daughter what the appellant had done to her. When he learnt that they had gone to the hospital at Biate, he also rushed to the hospital. The Doctor at Biate advised them to submit an FIR first before the police and accordingly, they went home. After reaching home, PW-1 asked his daughter what the appellant had done to her. Prosecutrix (X) then informed PW-1 that the appellant had taken out his penis and touched her private parts with his male organ. Thereafter, the other relatives were consulted and an FIR was submitted at the Khawzawl Police Station. 13. The evidence of prosecutrix (X) (PW2) is as follows:- wxyz "I know the accused person present in court today. He is also hailing from our village Biate. I am studying Class-I at Biate Primary School-II. I am now 8 years old. On 26.2.2015, I went to school and school was over at 1 PM and i went home. I changed my uniform and I played with U Chhuana and Peka at Zero Point. The accused house was near the place where we were playing. While we were playing, the accused asked me to go to his house. So, he will give me some eatables. I went inside the house of the accused with my friend, Peka. The accused asked my friend Peka to buy some Cigarette for him and after he left, the accused take me to his bedroom and take out his male organ and he also take off my panty. And I told him I want to go home. But he refused to let me go and he inserted his male organ into my private part and i felt some pain. And at that time, one of the neighbor, Nu Rini called the accused and I left the house. I went home and later, my friend, Lalruatpuii came to our house and told us that the accused had tried to kiss her and hug her inside his bedroom and how she managed to escape from him. My mother was become suspicious and asked me whether the accused sexually assaulted me or not? I told my mother that the accused let me to his bedroom but I cannot narrate the whole incident as I was afraid of the accused. I, however, told my mother that the accused take out his penis and touched my private part with his penis. I told my mother that the accused let me to his bedroom but I cannot narrate the whole incident as I was afraid of the accused. I, however, told my mother that the accused take out his penis and touched my private part with his penis. My mother contacted my father who was in the jungle cutting wood and asked him to immediately come home. My mother and my grandfather take me to hospital for examination." zyxw wxyz The evidence given by prosecutrix X has not been shaken by the defence counsel during cross-examination. zyxw 14. The evidence of PW-4 i.e., Lalruatpuii, who had also been forcibly hugged and kissed by the appellant on 26.02.2015 is as follows:- wxyz "I know the accused person present in court today. He is also hailing from our village Biate. On 26.2.2015, I went to school and after school was over, I, alongwith my friends Lalawmpuii and Lallawmawmi were playing at the compound of Nu Tha-i, The accused, at that time called me and asked me to go to his house. I, alongwith my friend, Lallawmawmi went inside the house of the accused and the accused me some eatable and let my friend Lallawmawmi out of the house. After my friend left the house, he asked me to enter the bedroom but I refused. He caught hold of me and forcibly take me to his bedroom. I told him I want to pass urine and he told me to do it on the floor. The accused hug me and kissed me on my cheek but I pinched the accused and I went home. After that, I again went to the house of Lalruatfeli. I told the mother of Ruatfeli what the accused had done to me and Ruatfeli''s mother asked her whether the accused done some sexual assault to her or not? I went home and I told my mother about the incident." zyxw wxyz A perusal of the above clearly shows that prior to the appellant having committed the act of aggravated penetrative sexual assault upon the prosecutrix (X), the appellant had also tried to have physical contact with Lalruatpuii, who was around 6 years old. zyxw 15. The evidence of PW-5, who is the mother of Lalruatpuii (PW-4) is to the effect that, on 26.02.2015 while she was in her house, her daughter Lalruatpuii came crying home at around 2:30 PM. zyxw 15. The evidence of PW-5, who is the mother of Lalruatpuii (PW-4) is to the effect that, on 26.02.2015 while she was in her house, her daughter Lalruatpuii came crying home at around 2:30 PM. When asked why she was crying, Lalruatpuii told her mother that the appellant had forcibly taken her into his house and pulled her inside the bedroom and kissed her on her cheek. Thereafter, on the pretext of passing urine, Lalruatpuii ran out of the house. On hearing about the incident from her daughter, PW-5 went to the house of the appellant to scold him. When PW-5 reached the house of the appellant, PW-5 saw prosecutrix (X) inside the house of the appellant. PW-5 thereafter scolded the appellant and called out prosecutrix (X) from the appellant''s house and took her to her residence, from where the prosecutrix (X) went home. In the evening, the mother of prosecutrix (X) came to the house of PW-5 and informed her that the appellant had inserted his male organ into the private parts of prosecutrix (X). 16. The evidence of PW-8 i.e., Doctor Lallawmkimi Chhakchhuak is to the effect that prosecutrix (X) had been brought for medical examination on 28.02.2015 at around 3:15 PM. The prosecutrix (X) was a minor girl and was physically and mentally normal. On examination of her genital area, the hymen of prosecutrix (X) was found to be ruptured. Bruising/laceration was found on her external genitalia. wxyz The cross examination of PW-8 is to the effect that she has no proof that the accused was the culprit. zyxw 17. The evidence of the case I.O. (PW-11) is to the effect that during investigation, he visited the place of occurrence and examined the complainant and prosecutrix (X). The victim was also sent for medical examination. The birth certificate of the victim was also seized and the FSL report on the underwear of the victim was to the effect that seminal stained was found, but blood grouping was not possible due to insufficiency of the quantity of semen. The case I.O. also stated that on interrogation, the appellant admitted his guilt saying that he committed rape on the prosecutrix (X) by reason of his intoxication with liquor and ganja. 18. The FSL report dated 24.04.2015, states that Exhibit-A is the underwear of the victim with suspected blood stains. The case I.O. also stated that on interrogation, the appellant admitted his guilt saying that he committed rape on the prosecutrix (X) by reason of his intoxication with liquor and ganja. 18. The FSL report dated 24.04.2015, states that Exhibit-A is the underwear of the victim with suspected blood stains. The result of the FSL examination is reproduced below:- wxyz i) Blood was not detected from the stains of Exhibit - A. zyxw wxyz ii) Traces of Semen were detected from the stains of Exhibit - A but the stains were insufficient for blood Grouping." zyxw 19. The examination of the appellant under Section 313 Cr.P.C, with regard to the evidence that he had committed aggravated penetrative sexual assault upon the prosecutrix (X), has been answered by the appellant by stating that as the appellant was under the influence of alcohol, he does not know what he actually did to prosecutrix (X). 20. A perusal of the cross examination of the prosecution witnesses shows that there is nothing to show that the appellant did not commit aggravated penetrative sexual assault on prosecutrix (X). The evidence adduced by the prosecution witnesses in their examination-in-chief has not been shaken during cross examination. The submission by the learned Amicus Curiae that the appellant was not given any opportunity to adduce defence evidence does not hold water, inasmuch as, there is nothing in the cross examination to show that the appellant has been trying to project a different case, than what has been adduced by the prosecution witnesses. Further, the only defence taken by the appellant during his examination under Section 313 Cr.P.C is to the effect that he does not remember what he did to the victim, as he was under the influence of alcohol. wxyz In the case of Rajkumar Vs. State of U.P., (2014) 5 SCC 353 , the Apex Court has held that when there is silence or non- explanation of incriminating material by the accused, the Court would be entitled to draw an inference, including adverse inference against the accused as may be permissible in accordance with law. zyxw 21. In the present case, the evidence adduced clearly points to the fact that the appellant has committed aggravated penetrative sexual assault upon the prosecutrix (X). The evidence adduced against the appellant has not been explained by the appellant under Section 313 Cr.P.C on the ground of him being intoxicated. zyxw 21. In the present case, the evidence adduced clearly points to the fact that the appellant has committed aggravated penetrative sexual assault upon the prosecutrix (X). The evidence adduced against the appellant has not been explained by the appellant under Section 313 Cr.P.C on the ground of him being intoxicated. In view of the above, this Court is of the view that no prejudice is caused to the appellant by not adducing any defence evidence. In any event, the appellant has not been able to show this Court as to what defence evidence he would like to submit before this Court or before the Trial Court. 22. The learned Amicus Curiae has also taken the plea that though the appellant was convicted under Section 6 of the POCSO Act, 2012, the learned Trial Court did not make any discussion with regard to Section 6 of the POCSO Act in the impugned Judgment & Order. This submission is made by the learned Amicus Curiae, due to the words used in the heading of para No. 6(i) of the impugned Judgment & Order, wherein para 6 (i) states as follows:- wxyz "Whether the accused has committed aggravated sexual assault on the prosecutrix on the occasion complained of ?" zyxw 23. This Court finds that just because the learned Trial Court has forgotten to use the word "Penetrative" between the words "Aggravated" and "sexual", does not mean that the learned Trial Court has not made any discussion with regard to Section 6 of the POCSO Act, 2012. A reading of para 6 (i), which approximately runs into more than 21/2 pages having about 113 lines, goes to show that the learned Trial Court has discussed the evidence in relation to Section 6 of the POCSO Act, 2012 and just because the word "Penetrative" has not been mentioned in the heading of para 6 (i), does not mean that Section 6 (i) of the POCSO Act has not been discussed. In fact, even in the 17th & 18th lines of para 6 (i), the learned Trial Court has stated as follows:- wxyz "Accused then inserted his penis into her vaginal which caused pains to her a bit." zyxw wxyz The entire paragraph clearly shows that the learned Trial Court has not only considered the act of aggravated penetrative sexual assault by the appellant against the prosecutrix (X), but also the appellant''s action against the other minor girl Lalruatpuii (PW-4). The learned Trial Court has also discussed the medical examination and the law laid down by the Apex Court in the case of Manga Vs. State of Haryana, (1979) AIR SC 1194 , wherein the Apex Court has held that when the Doctor found the hymen ruptured, the mere circumstance that he did not find redness or inflammation around the bruises is not material, because torn hymen and a bruise around hymen are sufficient to prove rape. zyxw 24. With regard to the learned Amicus Curiae''s submission that the appellant was not the perpetrator of the crime and that the appellant, at best, could have been convicted under Section 10 of the POCSO Act and not under Section 6 of the POCSO Act, 2012, this Court is of the view that the evidence of the prosecutrix (X) by itself inspires the confidence of this Court. Besides the above, the evidence of PW-1, 3, 4, 5, 8 & 11 corroborate the evidence of prosecutrix (X). 25. In the case of Narender Kumar Vs. State (N.C.T of Delhi), (2012) 7 SCC 171 , the Apex Court has held that once the statement of prosecutrix inspires confidence and is accepted by the Court, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required, unless there are compelling reasons which necessitate the Court for corroboration of a statement. In the present case, not only does the statement of the prosecutrix (X) inspire confidence, but her evidence has been corroborated by other prosecution witnesses and the FSL report. In view of the reasons stated above, we do not find any ground to interfere with the findings of the Trial Court that the appellant had committed aggravated penetrative sexual assault upon prosecutrix (X). 26. In view of the reasons stated above, we do not find any ground to interfere with the findings of the Trial Court that the appellant had committed aggravated penetrative sexual assault upon prosecutrix (X). 26. With regard to the learned Amicus Curiae''s submission that this Court should lessen the sentence imposed upon the appellant as he has never been involved in a case of this nature and it was only due to his intoxication that the appellant had committed the act, we will have to look at the provisions of Section 85 IPC. 27. A perusal of the Section 85 IPC goes to show that the act of the person would not be an offence, if the thing which intoxicated him was administered to him without his knowledge or against his will. However, there is no pleading taken by the appellant at any time that the thing which intoxicated him was administered to him without his knowledge or against his will. Keeping in view all the above facts and circumstances, we are not unmindful of the fact that the appellant has been convicted of a crime for the first time, albit a very serious crime. However, keeping in view the fact that the appellant is approximately 42 years of age and he has already been in jail for more than 3 years, we are of the view that justice would be served, if the sentence imposed is reduced by 3 years. Accordingly, in view of the reasons stated above, the conviction of the appellant by the learned Trial Court under Section 6 of the POCSO Act, 2012 is not interfered with. However, the sentence imposed by the learned Trial Court is modified to the extent that the appellant shall undergo Rigorous Imprisonment for a period of 15 years alongwith a fine of Rs. 5,000/-, i.d. S.I. for 2 months. It is needless to mention herein that the period of imprisonment already undergone shall be set off. 28. The appeal is accordingly disposed of. Send back the LCR. 29. In appreciation of the assistance provided by the learned Amicus Curiae, his fee is fixed at Rs. 9000/-(Rupees nine thousand), which shall be paid by the Mizoram State Legal Services Authority on production of a copy of this order.