Research › Search › Judgment

Gauhati High Court · body

2020 DIGILAW 672 (GAU)

Lalhriattluanga v. State of Mizoram

2020-09-21

NELSON SAILO

body2020
JUDGMENT : Nelson Sailo, J. 1. Heard Mr. Vanlalnghaka, the learned Amicus Curiae appearing for the appellant. Also heard Mr. C. Zoramchhana, the learned Public Prosecutor, Mizoram appearing for the State respondents. 2. This is an appeal against the Judgment and Order dated 18.10.2017 passed by the Court of Special Judge, Protection of Children from Sexual Offences Act, 2012 (POCSO Act), Champhai, Mizoram, whereby the appellant was convicted under Section 4 of the said Act and sentenced to undergo Rigorous Imprisonment for 10 years and to pay fine of Rs. 9000/-. In default of the payment of the fine, he has been directed to undergo Simple Imprisonment for a further period of three months. 3. The case of the prosecution in brief is that on 10.02.2015 at 10.30 am, one Sh. H. Ramdinsanga (PW 1) submitted an FIR before the Officer-in-Charge of Champhai Police Station stating that in the last week of December, 2014, his granddaughter i.e., the prosecutrix was raped by her own father in their residence. He also made her suck his private parts. Prior to the incident, he had also raped her during the year 2014. He stated that he came to learn about the incident only on the evening of 08.02.2015. His granddaughter also informed him that the accused appellant had threatened her not to disclose any details about the incident. The complainant accordingly prayed that appropriate legal action be taken against the accused appellant for the crime he had committed. As a result, Champhai Police Station Case No. 8/2015 dated 10.02.2015 under Section 376 (2) IPC read with Section 4 of the POCSO Act was registered and the matter investigated into. Upon completion of the investigation, the Investigating Authority having found a prima facie case against the appellant under Section 4 of the POCSO Act filed the charge sheet. On receiving the chargesheet, the Court of Special Judge under POCSO Act on 07.09.2015 framed charge against the appellant under Section 6 of the POCSO Act and to which, the appellant was recorded to have partially pleaded guilty and claimed for trial. Following the framing of charge, trial against the appellant began. During the trial, the prosecution in order to establish their case examined as many as 9 prosecution witnesses while the appellant did not adduce any evidence to defend himself apart from cross examining the prosecution witnesses only. Following the framing of charge, trial against the appellant began. During the trial, the prosecution in order to establish their case examined as many as 9 prosecution witnesses while the appellant did not adduce any evidence to defend himself apart from cross examining the prosecution witnesses only. Upon conclusion of the evidence stage, the appellant was examined by the Court under Section 313 of the CrPC and thereafter, the Trial Court heard the parties and passed the impugned Judgment and Order dated 18.10.2017 convicting and sentencing the appellant in the manner as already stated herein above. 4. Mr. Vanlalnghaka, the learned Amicus Curiae submits that since the Court of Special Judge, POCSO had framed the charge against the appellant under Section 6 of the POCSO Act, the appellant could not have been convicted under Section 4 of the same Act. He submits that there is a difference between the two sections and the quantum of sentence or punishment attached to it. Referring to the framing of charge on 17.09.2015, the learned counsel submits that the appellant in fact had only admitted the charge partially and in his examination under Section 313 of the CrPC, he had denied the allegations made against him and also the evidence led by the prosecution. For the incident alleged to have been committed by him upon the prosecutrix in the year 2013, the appellant only stated that he could not recall what had actually happened as he was too drunk. Therefore, it cannot be said that the prosecution proved the case against the appellant with proof beyond reasonable doubt. Further, the finding of the Trial Court was that charge against the appellant was proved for having committed an offence under Section 4 of the POCSO Act while charge was otherwise framed under Section 6 of the same Act. He therefore submits that the impugned Judgment and Order rendered by the Trial Court requires to be suitable interfered with. 5. Mr. C. Zoramchhana, the learned Public Prosecutor, Mizoram on the other hand by referring to the charge framed against the appellant on 07.09.2015 submits that the appellant had clearly admitted to the charge by stating that he had led the prosecutrix suck his penis and also tried to insert his penis in her private parts. Such admission clearly attracts the provisions under Chapter-II of the POCSO Act, more particularly, Section 5 (1) and (n). Such admission clearly attracts the provisions under Chapter-II of the POCSO Act, more particularly, Section 5 (1) and (n). The Public Prosecutor submits that a plain reading and appreciation of the evidence of the prosecution witnesses would clearly shows that the appellant is indeed guilty of the charge and therefore, he should have been convicted under Section 6 of the POCSO Act. As far as the quantum of the sentence is concerned, he submits that as the State has not preferred a separate appeal seeking enhancement of the sentence, the same may be maintained. 6. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record, including the lower court records. 7. As rightly pointed out by the parties, the Trial Court framed the charge under Section 6 of the POCSO Act on 07.09.2015 against the appellant and to which it was recorded that he partially pleaded guilty and claimed for trial. To establish their case, the prosecution examined nine (9) prosecution witnesses. PW 1, who is the complainant in his examination-in-chief deposed that the appellant is the husband of his elder sister (brother-in-law). Out of their wedlock, they have four children and the prosecutrix is the eldest. However, his sister and the appellant got separated and their children lived with the appellant. He stated that on 08.02.2015, one Lalchhanchhuahi (PW 5), who is the mother of Laldinthari (PW 6) came to their house and informed him that the prosecutrix was sexually assaulted by her father during the month of December, 2014. He therefore called the prosecutrix to his house to enquire what the appellant had done to her. The prosecutrix then stated that the appellant had sexually assaulted her by inserting his penis into his vagina and he also let her kiss his penis during the month of December, 2014 in their house. The prosecutrix also stated that her father sexually assaulted her during the year 2014 and warned her not to disclose the incident else he would kill her. PW 1 stated that thereafter, they informed the Village Council President, who in turn informed the Dungtlang police. Dungtlang Police then gave the information to the Champhai Police Station on 09.02.2015 and the police came to their village. On the next date, he submitted an FIR before the Champhai Police Station. PW 1 stated that thereafter, they informed the Village Council President, who in turn informed the Dungtlang police. Dungtlang Police then gave the information to the Champhai Police Station on 09.02.2015 and the police came to their village. On the next date, he submitted an FIR before the Champhai Police Station. PW 1 exhibited the FIR submitted by him as well as his signature as P1 and P1A respectively. In his cross examination, PW 1 stated that the age of the prosecutrix is about 12 years old and that he came to know about the incident from Lalchhanchhuahi (PW 5). 8. The prosecutrix was examined as PW 2 and in her examination-in-chief, she deposed that the accused person who was standing in the Court was her father. In the year 2010, her parents separated and out of the four children born to them, she was the eldest. After the death of the 2nd youngest sibling, only three of them were left. After their parent separated, she and her younger brother lived with her paternal grandparents while her younger brother lived with her mother at Aizawl. She stated that her father and his younger brother (her uncle) used to stay for the night in their small house while she and her younger brother lived with their paternal grandparents in another house. One night, her father and her uncle had a quarrel and due to which, her uncle went out of the house. In the year 2013, she was only 11 years old and he asked her to stay for the night with him. When she entered the house, her father locked the house from the inside and after undressing her clothing, he lay on her top on the bed. He then inserted his male organ into her private parts and she felt pain and she cried. Her father was drunk and from that time onwards, he used to have sexual intercourse with her and also made her suck the tip of his penis. In the year 2014, sometime in the month of December, her father made her suck his penis below the house of her grandparents. As far as she could remember, the prosecutrix stated that her father had sexual intercourse with her for about 5 times. She narrated the incident to her friend Laldinthari (PW 6) and she in turn informed her grandparents. As far as she could remember, the prosecutrix stated that her father had sexual intercourse with her for about 5 times. She narrated the incident to her friend Laldinthari (PW 6) and she in turn informed her grandparents. Her grandparents then informed the Village Council President and the police, whereafter she was taken to the Medical Officer at Champhai for examination. 9. PW 3 and PW 4 are seizure witnesses, who witnessed the seizure of the birth certificate of the prosecutrix. In their examination-in-chief, they stated that they know the appellant and that they appended their signatures in the seizure memo prepared by the police in the course of their investigation. 10. PW 5 Lalchhanchhuahi, in her examination-in-chief stated that the prosecutrix is a good friend of her daughter Laldinthari (PW 6) and they both studied in the same school and were in the same class. She deposed that although she could not remember the exact date but the prosecutrix had informed her daughter that her father used to sexually assault her. She also stated that on 08.02.2015, the grandmother of the prosecutrix i.e. Smt. Lalhmuakliani (PW 7) came to their house and she told her what the prosecutrix had informed or narrated to her daughter. 11. PW 6 Laldinthari in her examination-in-chief stated that she knows the appellant who was present in the Court The prosecutrix was her friend and on 25.01.2015 after the church service, she alongwith her friends including the prosecutrix went to the village cemetery where the prosecutrix said that she had secrets to share with them. However, she felt shy to divulge her secrets but when they keep on asking her, she stated that her father used to sexually assaulted her inside their residence and sometimes at night while they are sleeping. PW 6 stated that she was shocked to hear what the prosecutrix had narrated and that when she reached home, she told her mother what the prosecutrix had said. Her mother then informed the mother of the prosecutrix about the incident. 12. PW 7 Lalhmuakliani in her examination-in-chief stated that the prosecutrix is her granddaughter and on 08.02.2015 at around 3 pm, she visited her relative Smt. Lalchhanchhuahi (PW 5) at Vanzau Vengthlang. It was then that PW 5 informed her that her granddaughter (the prosecutrix) who was living with her father was sexually assaulted by her father. 12. PW 7 Lalhmuakliani in her examination-in-chief stated that the prosecutrix is her granddaughter and on 08.02.2015 at around 3 pm, she visited her relative Smt. Lalchhanchhuahi (PW 5) at Vanzau Vengthlang. It was then that PW 5 informed her that her granddaughter (the prosecutrix) who was living with her father was sexually assaulted by her father. On hearing about the incident, she called the prosecutrix to her house and asked her what her father had done to her. The prosecutrix then narrated as to how her father sexually assaulted her on several occasions. The prosecutrix stated that she did not disclose the matter to anyone earlier as she was threatened by her father. PW 7 stated that upon hearing the narration of the prosecutrix, she contacted the Village Council President who in turn contacted the police. The police came the next date and thereafter, the FIR was submitted. 13. PW 8 Dr. Lalhmingmawii, in her examination-in-chief stated that on 10.02.2015, the prosecutrix was produced by the Champhai Police before her for medical examination in connection with the alleged rape committed upon her by her own father. On examining the prosecutrix, she found that the prosecutrix no longer had hymen as it was torn and that it was an old tear. She stated that the prosecutrix disclosed to her that her own father had sexual intercourse with her for five times. 14. PW 9 J.H. Sanghmingthanga, Inspector of Police in his examination-in-chief stated that on 09.02.2015 at around 11.00 am while he was on duty at Champhai Police Station, he received a complaint/information from Dungtlang Police Check Post regarding the sexual assault committed upon the prosecutrix by her biological father i.e. the appellant. Accordingly, he visited the residence of the grandmother of the prosecutrix and he was accompanied by the Child Protection Officer of Champhai District and a Women Head Constable. He also visited the residence of the victim and the accused. He examined the appellant, Lalchhanchhuahi, Laldinthari and Lalhmuakliani and also seized the birth certificate of the prosecutrix by preparing a seizure memo and which was witnessed by Lallianchhungi and Biakmawia (PW 3 and PW 4) respectively. He also stated that he arrested the appellant and upon examining him, he confessed that he committed penetrative sexual offence upon his own daughter four times on various occasions and at different places. He also stated that he arrested the appellant and upon examining him, he confessed that he committed penetrative sexual offence upon his own daughter four times on various occasions and at different places. He also stated that he got his male organ sucked by his own daughter on his own resident and also in a different places. PW 9 also stated that he examined the prosecutrix and she informed him that the appellant had committed sexual intercourse with her for about five times. Upon finding the appellant to have committed sexual intercourse with his own minor daughter, he summed up his findings by submitting a charge sheet with charge made under Section 6 of the POCSO Act against the accused appellant for violation of Section 5 (1) and (n) of the POCSO Act. 15. From the evidence of the prosecution witnesses, it can be seen that the narration of the prosecutrix about the crime committed upon her is duly corroborated by the evidence of PW 6, PW 5 and PW 7 amongst others. Similarly, the evidence of the prosecutrix is also duly corroborated by the evidence of PW 1 and PW 8. PW 8 is the Doctor who examined the prosecutrix. She on being examined by the defence lawyer stated that the prosecutrix during the medical examination had disclosed to her that the appellant had committed sexual intercourse with her for five times. On examining the prosecutrix, PW 8 found her hymen to be torn and ruptured and that the tear was not a fresh one. Therefore, from the evidence led by the prosecution and the materials available on record, there is no escape from the conclusion that the appellant had forceful sexual intercourse with the prosecutrix who was his own biological daughter and a minor and that he also forced her to indulge in oral sex with him. 16. The aforesaid act of the appellant upon his own biological daughter is most condemnable, shameful, disgraceful and an act of a sexual pervert. It in fact warrants to be condemned in the strongest terms with exemplary punishment imposed. However, while saying so, it is noticed that the case I.O in the charge sheet noted that he found a prima facie case against the appellant for commission of an offence under Section 4 of the POCSO Act and accordingly submitted the charge sheet. It in fact warrants to be condemned in the strongest terms with exemplary punishment imposed. However, while saying so, it is noticed that the case I.O in the charge sheet noted that he found a prima facie case against the appellant for commission of an offence under Section 4 of the POCSO Act and accordingly submitted the charge sheet. But in his deposition before the Trial Court as PW 9, he stated that he found the appellant to have committed aggravated penetrative sexual assault and accordingly, he submitted the charge sheet under Section 6 of the POCSO Act for violation of Section 5 (1) and (n) of the POCSO Act. Apparently, the case I.O while making his deposition before the Trial Court did not refresh himself with the contents of the charge sheet he had earlier submitted. Likewise, the Trial Court on 7.9.2015 framed charge under Section 6 of the POCSO Act against the appellant and recorded that the appellant partially pleaded guilty and claimed for trial. However, on conclusion of the trial, the Court convicted the appellant under Section 4 of the POCSO Act. Therefore, for whatever reason, there appears to be inconsistencies in the application of Section/Sections under the POCSO Act on the part of the Investigating Officer as well as the Trial Court. In the impugned Judgment and Order, the Trial Court nowhere mentioned as to why the appellant was convicted under Section 4 of the POCSO Act when charge was framed under Section 6 of the same Act. 17. Chapter II of the POCSO Act deals with sexual offences against children. Section 3 defines penetrative sexual assault while Section 4 provides for the punishment for penetrative sexual assault. The prescribed punishment is imprisonment for a term which shall not be less than 7 years but which may extend to imprisonment for life and also with fine. Further, Section 5 of the POCSO Act deals with aggravated penetrative sexual assault and Section 6 of the same Act provides for punishment for aggravated penetrative sexual assault. The punishment prescribed is Rigorous Imprisonment for a term which shall not be less than 10 years but which may extend to imprisonment for life and which shall also be liable to fine. In the instant case, although the appellant was charged with Section 6 of the POCSO Act, the Trial Court recorded its conviction under Section 4 of the POCSO Act. In the instant case, although the appellant was charged with Section 6 of the POCSO Act, the Trial Court recorded its conviction under Section 4 of the POCSO Act. Having regard to the provision of Section 5 of the Act, more particularly, Section 5 (1) and Section 5 (n), the conviction of the appellant ought to have been under Section 6 of the POCSO Act. In fact, charge against the appellant was also framed under Section 6 of the Act. Under the facts and circumstances, I am of the considered view that there can be no prejudice caused to the appellant if the conviction is modified to one under Section 6 of the POCSO Act. In that view of the matter, the conviction of the appellant is modified from Section 4 to that of Section 6 of the POCSO Act. In so far as the sentence imposed is concerned, there being no separate appeal or application seeking enhancement of the sentence, I am of the considered view that the same be maintained. It is ordered accordingly. 18. With the above modification, the appeal is dismissed. Office to send back the LCR immediately. 19. For the valuable assistance rendered by the learned Amicus Curiae, Mr. Vanlalnghaka, he shall be paid a sum of Rs. 7500/- (Rupees seven thousand five hundred) only by the Mizoram State Legal Services Authority on production of a copy of this order.