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2020 DIGILAW 502 (GAU)

Beirangai v. State Of Mizoram

2020-05-18

MICHAEL ZOTHANKHUMA, NELSON SAILO

body2020
JUDGMENT Michael Zothankhuma, J. - Heard Mr. Lalchhanliana Khiangte, learned Amicus Curiae and Mrs. Linda L. Fambawl, learned Additional Public Prosecutor, Mizoram. 2. This is an appeal from jail filed by the convict appellant against the impugned judgment & order 25.08.2017, passed by the Special Judge, POCSO Act, 2012, Siaha in SR No. 11/2017, 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. 1,000/-, in default 10 days Simple Imprisonment vide order dated 29.08.2017. 3. The prosecution story in brief is that one Mr. Robin filed an FIR dated 10.02.2017, stating that his daughter, age 9 years, had been raped around midnight on 09.02.2017 by the appellant, when the appellant slept in the house of Mr. Robin, after having drinks. The appellant had again tried to rape the prosecutrix at around 5 pm on 10.02.2017. 4. In pursuance to the FIR filed by Robin (PW-1), who is the father of the prosecutrix, Siaha P.S Case No. 12/2017 under Section 6 of the POCSO Act, 2012 was registered on 10.02.2017. The prosecutrix was also sent for medical examination wherein, the medical report stated that the hymen of the prosecutrix was intact. 5. After investigation of the case, the I/O having found a prima facie case against the appellant under Section 6 of the POCSO Act, 2012, filed the charge- sheet. 6. The learned Trial Court framed charge under Section 6 of the POCSO Act, 2012, to which he pleaded not guilty. Thereafter, 6 (six) prosecution witnesses were examined during the trial and after examining the appellant under Section 313 Cr.PC, the Trial Court convicted the appellant vide the impugned judgment & order dated 25.08.2017 and sentenced him to undergo Rigorous Imprisonment for 15 years with a fine of Rs. 1,000/-, in default Simple Imprisonment for 10 days, vide order 29.08.2017. 7. The appeal has been filed by the appellant with a prayer to reduce the sentence imposed upon him to the bare minimum. 8. 1,000/-, in default Simple Imprisonment for 10 days, vide order 29.08.2017. 7. The appeal has been filed by the appellant with a prayer to reduce the sentence imposed upon him to the bare minimum. 8. The learned Amicus Curiae submits that the medical report given by the Doctor states that the hymen of the prosecutrix was intact and as the evidence of the Doctor during cross-examination is to the effect that though there was an attempt for penetration, there was no sign of actual penetration, the appellant could not have been convicted under Section 6 of the POCSO Act, 2012. He submits that as the evidence given by the Doctor shows that there was no penetration of the vagina by the appellant, the appellant could at best be convicted only under Section 8 of the POCSO Act, 2012 for sexual assault and not under Section 6, for aggravated penetrative sexual assault. 9. The learned Amicus Curiae also submits that the finding of the learned Trial Court in paragraph No. 12 of the impugned judgment & order is to the effect that there was no penetration of the vagina of the prosecutrix by the appellant. As such, there being no finding of penetrative sexual assault as defined under the POCSO Act, 2012, the impugned judgment & order convicting the appellant under Section 6 of the POCSO Act, 2012 should be set aside. He submits that in the alternative, the sentenced imposed upon the appellant should be reduced to the minimum sentence applicable under Section 6 of the POCSO Act, 2012. 10. Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor on the other hand submits that the evidence of the prosecutrix clearly proves the fact that there has been penetration of the vagina by the appellant, even though the penetration may not have ruptured the hymen. She submits that it is not necessary for the hymen to be ruptured as the penetration might be minimal and that the difference in the penetration level does not mean that no penetration of the vagina had taken place. She also submits that though the medical report and evidence of the Doctor does not disclose evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which has been found to be cogent, reliable, convincing and trustworthy by the learned Trial Court has to be accepted. She also submits that though the medical report and evidence of the Doctor does not disclose evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which has been found to be cogent, reliable, convincing and trustworthy by the learned Trial Court has to be accepted. In support her submissions, the learned Addl. Public Prosecutor has relied upon the judgments of the Apex Court in the case of B.C. Deva ALIAS DYAVA v. State of Karnataka, (2007) 12 SCC 122 and in the case of Wahid Khan v. State of Madhya Pradesh, (2010) 2 SCC 9 . 11. We have heard the learned counsels for the parties. 12. The facts of the case, as can be seen from the evidence of the prosecutrix, is that the appellant and the father of the prosecutrix drank liquor and as the appellant was highly intoxicated, he slept in the house of the prosecutrix along with the father of the prosecutrix. During the night, the appellant came to the bed where the appellant and her younger sister were sleeping and raped her by strangling her neck and also by threatening her with a knife. Though the appellant had called out to her father, her father could not wake up as the father of the prosecutrix was intoxicated. The appellant inserted his male organ into her vagina after putting soap to oil (lubricate) her vagina. The prosecutrix in her evidence stated that the insertion of the appellant''s male organ into her vagina was very painful and she suffered from fever the next day. The further testimony of the prosecutrix is as follows: wxyz "Even on the evening of next day, the accd. again came to our house with knife. At that time my father left us in our house as he is going out to collect medicine for me. The accd. again touched my breast and private part. I therefore, cried out on afraid of the accd. and I told everything about incident to my father. My father therefore, immediately approached the local MTP to help me" zyxw 13. The evidence of the father of the prosecutrix (PW-1) is that he had divorced his wife. As such, he was living with his daughter, the prosecutrix and her younger sister. and I told everything about incident to my father. My father therefore, immediately approached the local MTP to help me" zyxw 13. The evidence of the father of the prosecutrix (PW-1) is that he had divorced his wife. As such, he was living with his daughter, the prosecutrix and her younger sister. Though they all slept in the same room, the 2 daughters slept in a different bed. On the date of the occurrence, the appellant slept on his bed along with him. However, as he was intoxicated under the influence of liquor, he did not know about the incident. He heard about the incident the next evening, when the appellant again entered his house, wherein the prosecutrix became extremely afraid of him. 14. The evidence of PW-2, who is the neighbor of the prosecutrix, as recorded by the Trial Court at paragraph Nos. 2 to 4, is reproduced below: wxyz (2) I was the first person where the victim had disclosed the incident as she called me. The victim stated that the accused had also committed penetration into my vagina and the accused also threaten me to kill if I may disclose about the incident. zyxw wxyz (3) When the victim invited me to pass her urine, she could not pee and also could not pass her stool as it was very painful due to the effect of penetration caused by the accd. zyxw wxyz (4) When I cleanse the private parts of the victim with hot water, I found that it was severely swelling and I also found that some injury was sustained in her vagina" zyxw 15. The medical examination report of the Doctor (PW-3) (Exhibit P9) is to the effect that there were multiple bruises in the vaginal area and the hymen was intact. Spermatozoa was not seen. The "brief history of the incident" as narrated in the medical report is as follows: wxyz "alleged raped by unknown person". zyxw wxyz The evidence of the Doctor (PW-3) during cross-examination is that when penetration is caused, hymen is usually ruptured. Also, there was swelling and laceration on the vagina, which can be due to any other reason like infection. PW-3 has also stated that attempt to penetrate the vagina was made but did not succeed as can be seen from the bruises and laceration. The Doctor has also stated that there is no sign of actual penetration. Also, there was swelling and laceration on the vagina, which can be due to any other reason like infection. PW-3 has also stated that attempt to penetrate the vagina was made but did not succeed as can be seen from the bruises and laceration. The Doctor has also stated that there is no sign of actual penetration. zyxw 16. The examination of the appellant under Section 313 Cr.PC shows that the appellant answered that he did not remember, when asked as to whether he inserted his private part inside the prosecutrix private parts, as he was extremely drunk and had lost all consciousness. The said relevant question and answer, amongst many, in the examination of the appellant under Section 313 Cr.PC is reproduced below: wxyz "Q. The Prosecution Evidence reveals that on the night of 9/2/2017, after your friend Robin slept, you went close to where Elisi slept and after feeling her buttock and her ass, you inserted your private part inside hers. zyxw wxyz What do you have to say ? zyxw wxyz Ans : I drank liquor and as I was extremely drunk, I lose all consciousness. I do not remember." zyxw 17. Section 3 of the POCSO Act, 2012 defines penetrative sexual assault while Section 5 (h) & (m) defines aggravated penetrative sexual assault as follows: wxyz "3. Penetrative sexual assault. - A person is said to commit zyxw wxyz "penetrative sexual assault" if-- zyxw wxyz (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or zyxw wxyz (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or zyxw wxyz (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or zyxw wxyz (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person. zyxw wxyz 5. Aggravated penetrative sexual assault. zyxw wxyz 5. Aggravated penetrative sexual assault. zyxw wxyz (h) whoever commits penetrative sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance; or zyxw wxyz (m) whoever commits penetrative sexual assault on a child below twelve years;" zyxw 18. Though the opinion of the Doctor is that there is no penetration of the vagina by the appellant''s penis, the said opinion of the Doctor in our considered view cannot be proof of the fact that there was no penetration of the vagina only due to the reason that the hymen was intact. As per the definition given in Section 3 of the POCSO Act, 2012, penetrative sexual assault is said to be committed if the person penetrates his penis, to any extent, into the vagina. Thus, even if there was a 1 mm penetration of the penis into the vagina, that would constitute penetrative sexual assault as per Section 3 of the POCSO Act, 2012. It is not necessary that the penetration should be deep enough for the hymen to be ruptured. So long there was penetration, howsoever minimal, into the vagina, the same would constitute penetrative sexual assault. 19. In the case of B.C. Deva ALIAS DYAVA (supra), the Apex 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 gynecologist 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." 20. In the case of Wahid Khan (supra), the Apex Court has held at para 19 to 22 as follows: wxyz "19. It was also contended by learned counsel for the appellant that since hymen of the prosecutrix was found to be intact, therefore, it cannot be said that an offence of rape was committed on her by the appellant. This contention cannot be accepted as the offence of rape has been defined in Section 375 IPC. Explanation to Section 375 reads thus: "Explanation. This contention cannot be accepted as the offence of rape has been defined in Section 375 IPC. Explanation to Section 375 reads thus: "Explanation. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape." It has been a consistent view of this Court that even the slightest penetration is sufficient to make out an offence of rape and depth of penetration is immaterial. zyxw wxyz 20. It is appropriate in this context to reproduce the opinion expressed by Modi in Medical Jurisprudence and Toxicology (22nd Edn.) at p. 495 which reads thus: zyxw wxyz "Thus, to constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally, the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case, the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is a crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is to the effect whether there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one." zyxw wxyz 21. Similarly in Parikh''s Textbook of Medical Jurisprudence and Toxicology, "sexual intercourse" has been defined as under:"Sexual intercourse. In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains." zyxw wxyz 22. If the aforesaid facts are kept in mind, it cannot be disputed that the act of the appellant would certainly constitute an offence of rape and leaves no amount of doubt in our mind." zyxw 21. If the aforesaid facts are kept in mind, it cannot be disputed that the act of the appellant would certainly constitute an offence of rape and leaves no amount of doubt in our mind." zyxw 21. The judgment of the Apex Court in B.C. Deva ALIAS DYAVA (supra) clearly shows that if the testimony of the prosecutrix is cogent, reliable, convincing and trustworthy, the same has to be accepted even though medical examination of the prosecution does not disclose any evidence of sexual intercourse, which could be due to varying reasons. It is also clear from the judgment of the Apex Court in Wahid Khan (supra) that even a minor/minimal penetration of the vagina would come within the meaning of penetrative sexual assault and aggravated sexual assault. Thus, it is not necessary that the hymen has to be ruptured to prove there was penetration of the vagina. 22. In the case of Narender Kumar v. State (NCT of Delhi), (2012) 7 SCC 171 , the Apex Court has held at para 20 & 21 as follows: "20. It is a settled legal proposition that once the statement of 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. wxyz 21. 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 having been shown to exist in view of the subject matter being a criminal charge. 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 substantial, which may lend assurance to her testimony." zyxw 23. On considering the testimony given by the prosecutrix, we find the same to be cogent, convincing and trustworthy. 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 substantial, which may lend assurance to her testimony." zyxw 23. On considering the testimony given by the prosecutrix, we find the same to be cogent, convincing and trustworthy. Accordingly, we do not find any infirmity with the learned Trial Court accepting the testimony of the prosecutrix and we hold that the report of the Doctor and his opinion during the evidence adduced by him does not, in any manner, prove that penetration of the vagina of the prosecutrix had not taken place, as even the slightest penetration of the vagina comes within the meaning of penetrative sexual assault. In the case of Wahid Khan (Supra), the Apex Court has held that rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is to the effect whether there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one. In view of the testimony of the prosecutrix and the Judgment of the Apex Court in Narender Kumar (Supra), we hold that there was penetration made upon the private part of the prosecutrix by the appellant''s penis, which however was not to the extent so as to rupture the hymen. Accordingly Section 3(a) of the POCSO Act, 2012 is attracted. Further, in view of the fact that the appellant had rubbed soap to oil the vagina of the prosecutrix, prior to raping her, Section 3(c) of the POCSO Act, 2012 is also attracted. 24. The above being said, we find that while the Trial Court has convicted the appellant under Section 6 of the POCSO Act, 2012, which requires penetration of the vagina even to a minor extent, the charge framed against the appellant by the learned Trial Court on 20.06.2017, only speaks of an attempt to insert the penis into the vagina of the prosecutrix, though Section 6 of the POCSO Act, 2012 has been mentioned in the "Charge" form. Paragraph No. 3 of the charge framed against the appellant on 20.06.2017 is reproduced below: wxyz "(3) Date and place: That you, on or about 9 th Feb., 2017 at Meisatla, Siaha and in their residence had tried to insert your penis into the vagina of Ms. Elisi of 9 years old who slept in her own bed and thereby committed an offence punishable under section 6 of the POCSO Act, 2012 and within the cognizance of this court. And I hereby direct that you be tried on the said charge. Dated the 20th June, 2017 Judge [Sections 228(2), 240 (2), 246 (2) of the Code of Criminal Procedure, 1973] Read over and asked the accused whether he/she pleads guilty or not and to which pleaded Translation-T Guilty stating that on the night of the incident, I spent the night at my friend''s house. I tried having sexual intercourse with his daughter but I did not succeed as she is too young." zyxw 25. Section 6 of the POCSO Act, 2012 is the punishment provided for aggravated penetrative sexual assault, which not only requires that the condition/s provided in Section 5 of the POCSO Act, 2012 are satisfied, but that the condition/s provided in Section 3 of the POCSO Act, 2012 are present. Thus, while Section 3(a) requires penetration of the vagina by the penis, the words used by the learned Trial Court, while framing charge under Section 6 of the POCSO Act, 2012, is that the appellant tried to insert his penis into the vagina of the prosecutrix. The use of the word "tried to insert" leads to an inference that an attempt to rape or penetrative sexual assault had been made, but had not led to actual penetration. However, the framing of charge under Section 6 of POCSO Act, 2012, read with facts of this case, implies penetration by the appellant''s penis into the vagina of the prosecutrix, thereby attracting Section 3(a) of the POCSO Act, 2012. However, the framing of charge under Section 6 of POCSO Act, 2012, read with facts of this case, implies penetration by the appellant''s penis into the vagina of the prosecutrix, thereby attracting Section 3(a) of the POCSO Act, 2012. In any event, the attempt to insert the penis into the victim''s vagina, after rubbing it with soap to oil it would also attract Section 3(c) of the POCSO Act, 2012 as the rubbing of the vagina with soap to oil the same and touching of the vagina by the penis would amount to manipulation of any part of the body of the child so as to cause penetration into the vagina. Penetration of the penis into the vagina is not a sine qua non for attracting Section 3(c), as the same is taken care of by Section 3(a). Thus, rubbing of soap to oil the victim''s private parts, so as to cause penetration and the meaning of attempt to penetrate the vagina would come within the meaning of the word "manipulation", as provided in Section 3(c). As the prosecutrix is below 12 years of age, Section 5(m) is attracted and thus, we find no infirmity with the framing of charge being made against the appellant under Section 6 POCSO Act, 2012, only because of the use of the words "tried to insert". However, the question arises as to whether the use of the word "tried to insert your penis into vagina" can be said to have caused any prejudice to the appellant, at the time of making his defense during trial viz-a-viz the charge framed under Section 6 of the POCSO Act, 2012. 26. On perusal of the evidence adduced by the Trial Court, it is clear that the appellant was aware that the charge framed against him was under Section 6 of the POCSO Act, 2012, which pertains to aggravated penetrative sexual assault. This is also again seen in the examination of the appellant under Section 313 Cr.PC. The written argument submitted by the appellant before the learned Trial Court also clearly shows that the appellant was aware of the charge framed against him, i.e. with regard to aggravated penetrative sexual assault. This is also again seen in the examination of the appellant under Section 313 Cr.PC. The written argument submitted by the appellant before the learned Trial Court also clearly shows that the appellant was aware of the charge framed against him, i.e. with regard to aggravated penetrative sexual assault. Section 3 (c) of the POCSO Act, 2012 defines penetrative sexual assault and includes the act of a person who manipulates any part of the body of a child so as to cause penetration into the vagina, urethra, anus or any part of the body of the child. As the victim child was below 12 years, Section 5 (M), POCSO is attracted. Thus, even if the learned Trial Court had used the words "tried to insert" the penis into the vagina, the same would be covered by Section 3(c), as it would amount to manipulating the body of the child to cause penetration into the vagina. 27. In view of the above reasons, we hold that the use of the word "tried to insert your penis into the vagina" used by the learned Trial Court at the time of framing of charge under Section 6 of the POCSO Act, 2012 against the appellant, has not vitiated the trial or caused any prejudice to the appellant, as he was well aware that he had been charged with aggravated penetrative sexual assault and not attempt to aggravated penetrative sexual assault. 28. The above being said, the appeal petition submitted by the appellant is to the effect that he deeply regretted the crime he had committed against a child of 9 years and that he had been reformed by God''s grace during his jail custody. The prayer in his appeal petition is only for reduction of his sentence. Keeping all the above matters in view, we are of the view that there is no ground to interfere with the conviction and sentence of the appellant under Section 6 of the POCSO Act, 2012. Accordingly, the appeal stands rejected and dismissed. Send back the LCRs. 29. In appreciation of the assistance provided by Mr. Lalchhanliana Khiangte, learned Amicus Curiae, his fee is fixed at Rs. 9,000/-, which shall be paid by the Mizoram State Legal Services Authority.