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2020 DIGILAW 480 (GAU)

J. S. Robert Nohro v. State Of Mizoram

2020-05-12

MICHAEL ZOTHANKHUMA, NELSON SAILO

body2020
JUDGMENT Michael Zothankhuma, J. - Heard Mr. Samuel Vanlalhriata Chhangte, learned Amicus Curiae and Mrs. Linda L. Fambawl, learned Additional Public Prosecutor, Mizoram. 2. This is an appeal against the Judgment & Order dated 13.06.2018 passed by the Special Judge, POCSO Act, 2012, Siaha in SR No. 10/2018, arising out of Siaha P.S. Case No. 1/2018, by which the appellant has been convicted under Section 6 of the POCSO Act, 2012 and sentenced to undergo Rigorous Imprisonment for 15 years with a fine of Rs. 3,000/-, in default R.I. for 30 days, vide Order dated 14.06.2018. 3. The prosecution case in brief is that one Smt. N. Khaidi, mother of the prosecutrix submitted an FIR on 04.01.2018, stating that her daughter had been raped in the year 2016 at a Government Primary School by the Hindi teacher, Robert Nohro (appellant) inside the Headmaster''s Room. As the incident was told to Smt. N. Khaidi only on 29.12.2017 by her daughter, the prosecutrix, the FIR was filed only on 04.01.2018. 4. In pursuance to the FIR filed on 04.01.2018, Siaha P.S. Case No. 1/2018 was registered and investigation was conducted. The investigation revealed that the prosecutrix was born on 18.04.2008 and the incident apparently occurred when the prosecutrix was in Class-III. The prosecutrix was examined by a Medical Doctor on 05.01.2018, wherein it was found that her hymen was not intact. The physical and mental health of the prosecutrix was also found to be normal by the Medical Doctor. 5. The statement of the prosecutrix was recorded under Section 164 Cr.P.C. by the Chief Judicial Magistrate, Siaha on 16.01.2018, wherein the prosecutrix stated that the appellant had raped her. 6. The I.O. thereafter submitted a charge sheet against the appellant as he found a prima facie case under Section 6 of the POCSO Act against the appellant. 7. The charge under Section 6 of the POCSO Act was framed against the appellant on 24.04.2018. 8. During the trial, 4 (four) prosecution witnesses were examined. After the statement of the appellant was recorded under Section 313 Cr.P.C. and final arguments made by the parties, the appellant was convicted by the Trial Court under Section 6 of the POCSO Act and sentenced to undergo R.I for 15 years with a fine of Rs. 3,000/-, i.d. R.I for 30 days. 9. After the statement of the appellant was recorded under Section 313 Cr.P.C. and final arguments made by the parties, the appellant was convicted by the Trial Court under Section 6 of the POCSO Act and sentenced to undergo R.I for 15 years with a fine of Rs. 3,000/-, i.d. R.I for 30 days. 9. The learned Amicus Curiae submits that the impugned Judgment & Order has to be set aside, as there is considerable delay in filing the FIR. He submits that the conviction of the appellant has been based solely on the testimony of the prosecutrix, even though the testimony of the prosecutrix lacks material particulars, especially the date and month, in which the offence occurred. He also submits that due to the delay in the filing of the FIR, it would not be safe to sustain the conviction of the appellant only on the testimony of the prosecutrix as the delay has created a reasonable doubt as to whether any rape had occured. Accordingly, the benefit of doubt must be given to the appellant. In support of his submissions, the learned Amicus Curiae has relied upon the judgment of the Apex Court in the case of State of Karnataka Vs. Mapilla P.P. Soopi, (2003) 8 SCC 202 , Rajesh Patel Vs. State of Jharkhand, (2013) 3 SCC 791 and in the case of Parkash Chand Vs. State of Himachal Pradesh, (2019) 5 SCC 628 . 10. The learned Addl. Public Prosecutor, on the other hand submits that the impugned Judgment & Order should be sustained, in view of the fact that conviction can be based on the sole testimony of the prosecutrix. He submits that in the present case, as the testimony of the prosecutrix is convincing, there was no infirmity with the Trial Court convicting the accused, by accepting the testimony of the prosecutrix. The learned Addl. Public Prosecutor also submits that though the exact date and month, in which the rape had occurred could not be specified by the prosecutrix, the fact that the prosecutrix was only 8 years of age during the relevant time, is enough reason for this Court to overlook the fact that the prosecutrix could not give the exact date and month of the incident. She also submits that the delay in filing the FIR was due to the prosecutrix not coming out with the incident, as the appellant had threatened her from disclosing the same. In support of her submission that conviction for rape can be based on the sole testimony of the prosecutrix, the learned Addl. Public Prosecutor has relied upon the judgment of the Apex Court in Narender Kumar Vs. State (NCT of Delhi), (2012) 7 SCC 171 . 11. We have heard the learned counsels for the parties. 12. The evidence of the complainant (PW-1), who is the mother of the prosecutrix is as follows:- wxyz "On S/A zyxw wxyz 1. I have known accused appearing before the court on today. zyxw wxyz 2. I am the mother of the victim, in the early morning of dt.29/12/2017, my daughter victim was cried out before she was awakened up, I asked her the reasons of her crying, victim told me that accused Mr. Robert Nohro committed penetrative sexual assault upon her, firstly told to her by accused to undress her imderwear for two times but victim refused him. Later accused himself undressed her underwear and inserted his penis into vagina of the victim, victim also told me that accused often stated to the victim even in the street that "I have already seen yours everything...and if you disclose incident, it will be dangerous for you..." zyxw wxyz 3. Ext. P-III is an FIR submitted by me zyxw wxyz 4. Ext. P-III (a) is my signature zyxw wxyz 5. Ext. P-VII is original birth certificate of the victim. zyxw wxyz XXX by Learned D/L zyxw wxyz 1. It is a fact that victim being my daughter directly disclosed about incident to me and I denied of knowing incident through others apart from the victim." zyxw 13. The evidence of the Doctor (PW-2), who examined the prosecutrix on 05.01.2012 is as follows:- wxyz "On S/A zyxw wxyz 1. I have known accused appearing before the court on today. zyxw wxyz 2. In the case at hand, I medically examined victim on dt.5/1/2018 @ 10:57 A.M, on asking case history, victim told me that incident took place in 2016 and due to afraid of accused, she belatedly disclosed of incident. On her medical examination, her hymen was not intact. I have known accused appearing before the court on today. zyxw wxyz 2. In the case at hand, I medically examined victim on dt.5/1/2018 @ 10:57 A.M, on asking case history, victim told me that incident took place in 2016 and due to afraid of accused, she belatedly disclosed of incident. On her medical examination, her hymen was not intact. As there was a long time gap on stated incident and time for medical examination of victim, no other medical findings can be arrived/made. zyxw wxyz 3. Ext. P-VI is medical examination report of victim zyxw wxyz 4. Ext. P-VI (a) is my signature zyxw wxyz XXX by Learned D/L zyxw wxyz 1. I admitted that my medical examination report could not reveal the culprit in the case at hand. " The medical examination report of the prosecutrix states that the hymen was not intact. The evidence of the Doctor also shows that the prosecutrix had narrated the incident to the Doctor. zyxw 14. The evidence of the I.O. (PW-3) is as follows:- wxyz "On S/A zyxw wxyz 1. I have known accused appearing before the court on today. 2. On dt.4/1/2018, an FIR is received at Siaha Police Station stating that during 2016, accused being Hindi teacher committed penetrative sexual assault upon the victim by taking advantage as student. I visited the PO on the same date, accused was arrested forthwith, as medical examination elicited that accused is not fit for judicial custody, he was released on PR bond. Victim was also medically examined, statement of witnesses and accused were also recorded. Judicial statement of victim is also recorded. Birth certificate of victim is also seized and revealed that victim is below 12 years of age. zyxw wxyz 3. I therefore find a prima facie case against the accused u/s 6 of POCSO Act, 2012." zyxw 15. The evidence of the prosecutrix (PW-4) is as follows:- wxyz "On S/A zyxw wxyz 1. During 2016, I studied class-III in Govt. Primary School at Maubawk ''CH''. zyxw wxyz 2. Although I could not recall the exact date and month, during 2016, I reached our school so early, when I was preparing for class test, accused Mr. Robert Nohro who was our hindi teacher on behalf of other permanent teacher called me to enter into office room. Primary School at Maubawk ''CH''. zyxw wxyz 2. Although I could not recall the exact date and month, during 2016, I reached our school so early, when I was preparing for class test, accused Mr. Robert Nohro who was our hindi teacher on behalf of other permanent teacher called me to enter into office room. He kept me inside the Headmaster room and he put me in the chair, he told me for two times to undress my underwear but I refused him. He forcefully undressed my underwear, he inserted his male penis into my vagina and it was very painful. I also found some liquid in my private parts area. Since accused closed my mount with him palm, I could not ask any help. After incident, accused told me to go zyxw wxyz out and wash myself. As accused threatened me not to disclose of the incident, I belatedly disclose incident to my relatives. zyxw wxyz 3. Even after incident took place, accused disdain me even in the street for so many times that "I have already seen yours everything...." zyxw wxyz 4. Ext. P-VII is original copy of my birth certificate. zyxw wxyz XXX by Learned D/L zyxw wxyz 1. It is a fact that there was some liquid in my private parts area after accused inserted his penis into my vagina. " zyxw 16. On perusal of the impugned Judgment & Order, it is quite clear that the learned Trial Court has convicted the appellant on the basis of the testimony given by the prosecutrix, the fact that the hymen was not intact, the statement given by the prosecutrix before the Police and the judicial statement recorded by the learned CJM, Siaha. In this regard, paragraph No. 14 of the impugned Judgment & Order is reproduced below:- wxyz "14. In the case at hand and as the above stated variant evidences of the prosecution, victim''s statement of having nightmare and was compelled to disclose of incident is corroborated by statement of her mother as PW-I, Medical examination also reveals that hymen of victim was not intact. More so, victim''s statements given before the police judicial statement recorded by learned CJM and depositions in the court are totally similalr, consonance each other and not shaken at all, this court therefore have no reasons to disbelief/discard statement of the prosecutrix. zyxw 17. Xxxx XXXX XXXX XXXX 18. More so, victim''s statements given before the police judicial statement recorded by learned CJM and depositions in the court are totally similalr, consonance each other and not shaken at all, this court therefore have no reasons to disbelief/discard statement of the prosecutrix. zyxw 17. Xxxx XXXX XXXX XXXX 18. The judicial statement of the prosecutrix as recorded by the learned CJM, Siaha is reproduced below:- wxyz "STATEMENT OF CHRISTIME LALNUNTHAI (9) D/O C.THANSIAMA OF MAUBAWK, ''CH'' IN CONNECTION WITH SHA-PS C/NO. 01/18 DT.04.01.2018 U/S 4 POCSO ACT ON 16.01.2018 I examined the victim Christine Lalnunthari and in my opinion she is fit to testify. Ext.P-11 Sd/- 29/5/18 Judge Sd/- (LALRAMSANGA) Chief Judicial Magistrate Siaha District, Siaha My name is Christine Lalnunthari and I am 9 years old. I presently study Class IV in UPS Maubawk ''CH''. I cannot recollect the exact date and time but it happened while I was reading in Class III during the year 2016. I was revising my lessons alone in our classroom when Robert Nohro, a substitute teacher called me. He took me to the headmaster''s room and as it was still early, no other teachers were present. He took off my underwear and he made me sit on a chair. He covered my mouth and he inserted his private part between my legs. He took it out after a short while and he insert it again. He got up and said, "Do not tell it to anyone or else it will be bad, go wash yourself." There was a white slimy discharge from my private part. I went behind the school and washed myself with the water stored in the sintex. After this incident, whenever Robert Nohro sees me walking alone on the road, he would say things like, "I have already seen yours". I therefore did not have the guts to tell anyone about the incident. zyxw wxyz Q.1. Why did you not tell your parents immediately about the incident ? zyxw wxyz Ans : I was scared as Robert Nohro used to threaten me. zyxw wxyz Q 2. Why did you tell them now ? zyxw wxyz Ans : I was mentally troubled and I even continued to have nightmares and I could not hide it any longer. zyxw wxyz Q 3. Did Robert Nohro touch you again thereafter ? zyxw wxyz Ans : I was scared as Robert Nohro used to threaten me. zyxw wxyz Q 2. Why did you tell them now ? zyxw wxyz Ans : I was mentally troubled and I even continued to have nightmares and I could not hide it any longer. zyxw wxyz Q 3. Did Robert Nohro touch you again thereafter ? zyxw wxyz Ans : No, he tried to touch me again in the classroom but I refused. zyxw wxyz Sd/- RO&AC Recorded by Sd/- ( LALRAMSANGA ) Chief Judicial Magistrate zyxw wxyz Siaha District, Siaha" On a perusal of the above judicial statement, which has been made under Section 164 Cr.P.C., it is seen that the same has been exhibited by the learned Trial Court as Exhibit P-11. This fact is also recorded in the impugned Judgment & Order. However, the Chief Judicial Magistrate who recorded the judicial statement of the prosecutrix, has not been examined as a witness by the learned Trial Court. zyxw 19. In the case of Narender Kumar (Supra), the Apex Court has held that even in a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. wxyz "A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability needs to be shown to exist in view of the subject-matter being a criminal charge. Once the statement of the prosecutrix inspires confidence and is accepted by the court as such, 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 her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which may lend assurance to her testimony." zyxw 20. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which may lend assurance to her testimony." zyxw 20. In the case of State of Karnataka Vs. Mapilla P.P. Soopi (Supra), Rajesh Patel Vs. State of Jharkhand (Supra) and Parkash Chand Vs. State of Himachal Pradesh (Supra), the Apex Court has held that delay in lodging a complaint/FIR without giving any proper explanation for the delay, causes prejudice to the accused and creates reasonable doubt in the mind of the Court as to the genuineness of the case. In the present case, the child being 8 years of age at the time of the alleged incident, may be excused for not informing her mother earlier due to the threat made to her by the appellant. On the other hand, the prosecutrix in her judicial statement (Exhibit P-11) has stated that she was mentally troubled by the incident and continued to have nightmares. If that be the case, it is surprising that the mother of the prosecutrix did not notice the troubled nature of her daughter as the incident had allegedly occurred in 2016 and the FIR submitted only in January, 2018. Be that as it may, in the present case, the explanation for the delay in filing the FIR can be seen in the evidence of PW-1 (mother of the prosecutrix) and the testimony of the prosecutrix, wherein it is stated that the prosecutrix was threatened by the appellant from disclosing the incident. 21. In view of the reason/explanation given by the prosecutrix in the delayed narration of the incident by her to her mother, we are of the view that the delay in filing the FIR has been explained. Further, in the case of Narender Kumar (Supra), the Apex Court held that if the statement of the prosecutrix inspires confidence and is accepted by the Court, conviction can be based solely on the solitary evidence of the prosecutrix. In the present case, there is nothing to show that there was any enmity between the family of the prosecutrix and the appellant. In the present case, there is nothing to show that there was any enmity between the family of the prosecutrix and the appellant. Neither is there any suggestion made by any of the parties that the prosecutrix had any ulterior reason to make such a serious allegation against the appellant. On considering the broad probabilities of the case and keeping in view the fact that the child was found to be mentally and physically normal by the Medical Officer, we do not find any reason not to accept the testimony of the prosecutrix. 22. On a perusal of the impugned Judgment & Order, we find that the learned Trial Court had come to a finding that the appellant had committed aggravated penetrative sexual assault upon the prosecutrix, on the basis of the statements given by the prosecutrix to the police and the learned CJM (Exhibit P-11), and the evidence adduced in the Court. On considering the above, we are of the view that the learned Trial Court erred in convicting the appellant on the basis of the judicial statement made by the prosecutrix (P-11), without examining the CJM concerned. Accordingly, we hold that P-11 is not admissible in evidence, for the purpose of coming to a finding that the appellant is guilty of aggravated penetrative sexual assault. Further, in view of Section 25 & 26 of the Indian Evidence Act, 1872, we are of the view that the finding of the learned Trial Court that the appellant is guilty of the offence of aggravated penetrative sexual assault, on the basis of the statement of the prosecutrix to the police cannot be sustained. wxyz Accordingly, we hold that the learned Trial Court could not have come to a finding of guilt against the appellant, on the basis of the statements given by the prosecutrix to the police and to the learned CJM, as has been reflected in paragraph No. 14 of the impugned Judgment & Order dated 13.06.2018. However, in view of the judgment of the Apex Court in Narender Kumar (Supra), wherein the Apex Court has held that once the statement of the prosecutrix inspires confidence and is accepted by the Court, conviction can be based only on the solitary evidence of the prosecutrix, a finding of guilt can be arrived at, solely on the testimony of the prosecutrix. As we are of the view that the testimony of the prosecutrix is cogent, reliable, inspires confidence and there being no ulterior reason suggested or shown, as to why the prosecutrix had made the allegation against the appellant, we are of the view that the impugned Judgment & Order of the learned Trial Court needs no interference. zyxw 23. Consequently, the impugned Judgment & Order dated 13.06.2018, passed by the Special Judge, POCSO Act, Siaha in SR No. 10/2018 is hereby upheld. However, keeping in view the fact that the appellant is a family man whose family has been shattered by the incarceration of the bread earner, and also due to the fact that the appellant is the sole bread earner of his family, we are of the view that justice would be served, if the sentence imposed upon the appellant is reduced. Accordingly, the appellant is sentenced to undergo Rigorous Imprisonment for a period of 10 years with a fine of Rs. 3,000/-, i.d. R.I. for another 30 days. The period of sentence already undergone as an under trial prisoner and as a convict shall be set off. Consequently, the Sentence Order dated 14.06.2018 passed by the Special Judge, POCSO Act, Siaha in SR No. 10/2018 is hereby modified to the extent indicated herein above. Send back the LCR. 24. In appreciation of the assistance provided by the learned Amicus Curiae, his fee which is fixed at Rs. 9,000/- will be paid by the State Legal Services Authority.