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2020 DIGILAW 697 (GAU)

Lalramthanga v. State of Mizoram

2020-10-06

MICHAEL ZOTHANKHUMA

body2020
JUDGMENT : Michael Zothankhuma, J. 1. Heard Mr. Johny L. Tochhawng, learned Amicus Curiae and Mrs. Linda L. Fambawl, learned Additional Public Prosecutor. 2. This appeal has been filed against the Judgment & Order dated 03.10.2018 passed by the Special Court, POCSO, Aizawl in SC No. 77/2017 (Criminal Trial No. 845/2017), arising out of Serchhip P.S. Case No. 33/2017, by which the appellant has been convicted under Section 6 of the POCSO Act, 2012 and sentenced to undergo Rigorous Imprisonment for 10 years with a fine of Rs. 10,000/-, i.d. Simple Imprisonment for 2 months, vide Sentence order dated 10.10.2018. 3. The prosecution case in brief is that an FIR was lodged on 13.03.2017 by one R. Lalremmawia, S/o Ramzauva, R/o Chandmari Veng, Serchhip, stating that his daughter aged about 4 years had been sexually molested on three occasions by his maternal uncle. The FIR dated 13.03.2017 also stated that the last sexual molestation incident had taken place on 11.03.2017 at around 3:00 PM. 4. In pursuance to the FIR, SRCP P.S. Case No. 33/2017 was registered on 13.03.2017 under Section 6 of the POCSO Act. PW-7 was appointed as the case I.O. As per the statement given by the victim child to her mother, the appellant had allegedly sexually molested the victim girl thrice and that the appellant had inserted his penis into the victim girl's vagina. The victim girl was sent for medical examination and her statement was also recorded by Judicial Magistrate. 5. As the case I.O. (PW-7) found a prima facie case against the appellant under Section 6 of the POCSO Act, charge sheet was filed. During framing of charge, the Trial Court asked the appellant the following question:- "That, you had committed penetrative sexual assault upon one minor girl R. Lalnunpuii, 4 yrs old for about three times on different occasions, the last incident occurred on 11.3.2017 at around 3:00 pm inside their residence by inserting your penis into her vagina and therefore are liable for charge u/s. 6 of POCSO Act, 2012." The appellant pleaded to the charge under Section 6 of the POCSO Act, 2012 as follows:- "Not guilty and claimed for trial, pleaded partly guilt saying he touched his finger inside the vagina." 6. The learned Trial Court did not convict the appellant on his plea of guilt, but instead proceeded with the trial. The learned Trial Court did not convict the appellant on his plea of guilt, but instead proceeded with the trial. Subsequent to the framing of charge under Section 6 of the POCSO Act, 2012, the Trial Court examined six prosecution witnesses including the prosecutrix. Thereafter, the appellant was examined under Section 313 Cr.P.C., wherein the appellant when asked whether he had put the victim girl on the dining table and touched her vagina, had answered as follows:- "I had touched her vagina to wash it." 7. After hearing the final arguments of the counsels for the parties, the learned Trial Court passed the impugned Judgment & Order dated 03.10.2018, convicting the appellant under Section 6 of the POCSO Act and sentencing him to undergo Rigorous Imprisonment for 10 years with a fine of Rs. 10,000/-, i.d. Simple Imprisonment for 2 months vide Sentence Order dated 10.10.2018. 8. The learned Amicus Curiae submits that the appellant could not have been convicted under Section 6 of the POCSO Act, 2012, as the offence squarely fell within the provisions of Section 8 of the POCSO Act, 2012. He also submits that while the evidence of the Doctor (PW-6) showed that though he had found a rupture in the victim's hymen to be an old tear, there were no marks of violence on the body of the victim girl. There was also no bruising or laceration of the external genitalia. He also submits that the Doctor's evidence during cross-examination is to the effect that there was no sexual attempt/assault on the victim, on the day of the alleged incident. The learned Amicus Curiae thus submits that in the evidence adduced by the prosecutrix, the appellant had allegedly touched the victim's private parts. He submits that as per the evidence adduced, there was no penetration of the victim's private parts, either by the appellant's penis or any part of his body. As such, the appellant could have been convicted only under Section 8 of the POCSO Act, 2012 and not under Section 6. He accordingly prays that if the appellant is convicted under Section 8 of the POCSO Act, 2012, he should be awarded the minimum sentence of 3 (three) years. 9. Mrs. Linda L. Fambawl, learned Addl. As such, the appellant could have been convicted only under Section 8 of the POCSO Act, 2012 and not under Section 6. He accordingly prays that if the appellant is convicted under Section 8 of the POCSO Act, 2012, he should be awarded the minimum sentence of 3 (three) years. 9. Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor submits that at the time of framing of charge under Section 6 of the POCSO Act, 2012, the appellant had pleaded guilty saying that "He touched his finger inside the vagina". The appellant during cross-examination under Section 313 Cr.P.C. also stated that he had touched the victim's vagina to wash it. Further, the judicial statement of the victim girl was to the effect that the appellant had taken out his private part and tried to insert it inside the victim's vagina. The Addl. Public Prosecutor also submits that as the Doctor's evidence clearly showed that the victim's hymen had been ruptured, which clearly implied that there was aggravated penetrative sexual assault, the learned Trial Court did not commit any infirmity in convicting the appellant under Section 6 of the POCSO Act, 2012. She accordingly prays for upholding the impugned judgment & order. 10. I have heard the learned counsels for the parties. 11. The issue to be decided is as to whether the alleged offence committed by the appellant could have ended in conviction under Section 6 of the POCSO Act, 2012 or whether the conviction should have been made under Section 8 of the POCSO Act, 2012. 12. The evidence of the mother of the victim girl, i.e., PW2 is to the following effect:- "I know the accused Lalramthanga produced before the court today. The victim in the instant case is my daughter. The victim is the brother of my mother-in-law and he is still single and he used to live with us. We have furniture workshop and my husband used to work at our workshop. On 11.03.2017 my husband was working at our workshop and I went to the market at @ 3:00 PM and I left my victim daughter and the accused at our residence. We have furniture workshop and my husband used to work at our workshop. On 11.03.2017 my husband was working at our workshop and I went to the market at @ 3:00 PM and I left my victim daughter and the accused at our residence. After about half an hour I went home and opened the door and I saw my daughter sitting on our dining table and when she saw me she went towards me and she stated to me that her grandfather is going to buy some eatables. I got suspicious and I asked my daughter what had happened while I am gone. And she stated to me that the accused had touched her private part. I immediately called my husband who was working at our workshop below our house and told him about the matter. My husband ca led my mother and told her about the incident. At that time Kohhran Hmeichhe Khawmpuilian was held at our Village and we had some quest and we are very busy but on 13.03.2017 we went to Serchhip P.S. and submitted FIR. XXX by Ld. Defense Counsel F. Lalzuiliana: It is a fact that I did not see what had happened at the time but I have suspicion as the victim said that "my uncle will buy me some eatables things" It is also a fact that the statement of the victim was recorded at the Police Station of Serchhip by female Police personnel. It is also a fact that the Police personnel who recorded the statement of the victim was full in Uniform." The evidence of PW2 shows that no suggestion has been made to PW-2 by the appellant or his counsel, to the effect that what had been stated to PW2 by the victim girl was false or fabricated. The fact that emerges from the evidence of the PW2 is that she did not see the incident, but was informed of the incident of the appellant touching the private part of the victim girl by the victim girl, i.e. her daughter. No evidence was adduced that there was any penetration of the victim's private parts or that the victim had been sexually molested thrice. 13. The evidence of the victim girl (PW3) and her cross examination is reproduced below:- "I know the accused Lalramthanga produced before the Court today. No evidence was adduced that there was any penetration of the victim's private parts or that the victim had been sexually molested thrice. 13. The evidence of the victim girl (PW3) and her cross examination is reproduced below:- "I know the accused Lalramthanga produced before the Court today. He used to live in our house and he is my grandfather (A pu). I am studying KG at Good Will. I do not know the exact date and time I was alone at home with my grandfather (A pu) and he let me sit on the dining table and he touched my private part. My grandfather (A pu) stated to me that he will buy some eatables for me. When my mother came home I told her that my grandfather (A pu) touched my private part. XXX by Ld. Defence Counsel F. Lalzuiliana: It is not a fact that the accused did not touch my private part." A perusal of the above evidence clearly shows that the evidence adduced by the victim girl that her private parts had been touched by the appellant has not been shaken. The evidence adduced by the mother of the victim girl and the victim herself clearly shows that there was no penetration of the private parts of the victim girl, either by the penis of the appellant or by any part of his body. Also, there is nothing to show that the victim had been sexually molested thrice. In fact, no evidence has been adduced by any witness that there was penetration of the victim's private parts by the penis or any part of the body of the appellant. 14. Section 3 of the POCSO Act, 2012 states that a person is said to commit penetrative sexual assault if he penetrates his penis, any object or a part of the body, to any extent, into the vagina, anus, etc of the victim. Penetrative sexual assault also includes manipulation of any part of the child so as to cause penetration into the vagina, urethra, anus, etc. or applies his mouth to the vagina, anus, etc. In the present case, the evidence of the prosecution witnesses does not show that any penetration, as required under Section 3 of the POCSO Act, 2012, had taken place on the body of the victim. Though the Ld. or applies his mouth to the vagina, anus, etc. In the present case, the evidence of the prosecution witnesses does not show that any penetration, as required under Section 3 of the POCSO Act, 2012, had taken place on the body of the victim. Though the Ld. Trial Court had recorded, during framing of charge, that the appellant pleaded partly guilty saying "he touched his finger inside the vagina", the same is not corroborated by the evidence adduced by any of the prosecution witnesses, including the victim during trial. The statement given by the appellant, during his examination under Section 313 Cr.P.C., is also to the effect that he touched the victim's vagina to wash it. The judicial statement of the victim taken on 14.03.2017 by the CJM, Serchhip contains 2 (two) sentences which is to the effect that the appellant made the victim lie on the table wherein, he touched her private part. He also took out his private part and he tried to insert it inside the victim's private part. This alleged statement made by the victim before the concerned Judicial Magistrate is not admissible as evidence, for the simple reason that neither was the judicial statement exhibited during trial and neither was the Judicial Officer, who allegedly recorded the statement examined during the trial. 15. The evidence of the Medical and Health Officer, JN Hospital, Serchhip is to the effect that she examined the victim girl, who was 4 years old on 13.03.2017. The victim girl was found to be physically and mentally healthy and that there were no marks or violence on her body. No bruise or laceration was found in the external genitalia of the victim girl. However, her hymen had been ruptured. During cross examination, the doctor stated that the rapture in the hymen was an old tear and that he had found no sign of redness or swelling on the vagina of the victim girl. Though absence of injury on the victim may not a factor that would lead the Court to absolve an accused of the crime of penetrative sexual assault, there is nothing in the evidence to show that there had been any penetration into the vagina of the victim by the appellant's penis or by any part of his body. Though absence of injury on the victim may not a factor that would lead the Court to absolve an accused of the crime of penetrative sexual assault, there is nothing in the evidence to show that there had been any penetration into the vagina of the victim by the appellant's penis or by any part of his body. There is nothing to show that he had manipulated any part of the body of the victim to cause penetration into the vagina or that he had applied his mouth to the victim's vagina. The Doctor had in his cross-examination also stated as follows:- "It is a fact that on the day of the alleged incident, it appears that there was no sexual attempt/assault on the victim". 16. The evidence of the case I.O. (PW-7) is to the effect that the mother of the victim girl, on returning home, saw the accused and the victim in a very suspicious position. On asking the victim girl what had happened, the victim girl told her mother about the sexual assault. Accordingly, FIR was filed and case was registered for investigation. PW-7 stated that the appellant admitted committing the sexual assault against the victim girl during the interrogation. PW-7 also stated that the statement of the victim girl was recorded by her and also by the Judicial Magistrate, Serchhip. The Birth Certificate of the victim girl was also exhibited which showed that she was 4 years old at the relevant point of time. However, as stated in the forgoing paragraphs, there is nothing to show in the evidence recorded during the trial that there had been aggravated penetrative sexual assault committed upon the victim by the appellant. The evidence recorded only points to the fact that the appellant had touched the victim's private part. Section 7 of the POCSO Act, 2012 states as follows:- "7. Sexual assault:-- Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other Act with sexual intent which involves physical contact without penetration is said to commit sexual assault. 8. Sexual assault:-- Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other Act with sexual intent which involves physical contact without penetration is said to commit sexual assault. 8. Punishment for sexual assault:-- Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine." 17. A perusal of the judgments laid down by the Apex Court in the case of State of Punjab Vs. Gurmit Singh & Ors., reported in 1996 2 SCC 384 and in the case of State of H.P. Vs. Raghubir Singh, reported in 1993 2 SCC 622 shows that conviction can be recorded on the sole testimony of the prosecutrix, if her statement inspires confidence and is reliable. Also minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. As can be seen from the foregoing paragraphs, the appellant has admitted to touching the victim's private parts during framing of charge and also under Section 313 Cr.P.C. The victim has in her evidence also categorically stated that the appellant had touched her private parts. The evidence of the victim is found worthy of credence and inspires confidence. However, as stated earlier, the victim and mother have not adduced any evidence during trial that there was penetration of the victim's private parts by the appellant's penis or any of his body part. Accordingly, this Court is of the view that while no further corroboration of the evidence of the victim is required to prove the fact that the appellant had committed the offence of sexual assault against the victim, there is nothing to show that aggravated penetrative sexual assault had taken place. 18. In view of the reasons stated above, this Court is of the view that the appellant could not have been convicted under Section 6 of the POCSO Act, 2012. The appellant should have been convicted under Section 8 of the POCSO Act, 2012, as the offence amounted to sexual assault as provided in Section 7 of the POCSO Act, 2012. In view of the reasons stated above, this Court is of the view that the appellant could not have been convicted under Section 6 of the POCSO Act, 2012. The appellant should have been convicted under Section 8 of the POCSO Act, 2012, as the offence amounted to sexual assault as provided in Section 7 of the POCSO Act, 2012. Accordingly, the charge under Section 6 of the POCSO Act, 2012 is altered against the appellant to Section 8 of the POCSO Act, 2012, by invoking Section 216 Cr.P.C. The appellant is accordingly convicted under Section 8 of the POCSO Act, 2012. In respect of the sentence to be imposed upon the appellant, this Court finds that the appellant being the uncle of the victim's mother, he holds a position of trust vis-a-vis the victim and should have donned the role of protector. It is unfortunate that a grand-uncle could have such nefarious designs upon an innocent 4 year old girl, who cannot defend herself. In the light of the above facts, this Court does not find any ground to sentence the appellant to the minimum punishment provided under Section 8. This Court is of the view that the maximum punishment possible should be inflicted upon the appellant. Accordingly, the appellant is sentenced under Section 8 of the POCSO Act, 2012, to undergo rigorous imprisonment of 5 years with a fine of Rs. 20,000/-, in default simple imprisonment for 6 months. Consequently, the impugned Judgment & Order dated 03.10.2018 passed by the Special Court, POCSO, Aizawl in SC No. 77/2017 (Criminal Trial No. 845/2017), arising out of Serchhip P.S. Case No. 33/2017 and the sentence Order dated 10.10.2018 are modified to the extent indicated above. 19. Original LCR, if any, are to be sent back. 20. In appreciation of the assistance provided by the learned Amicus Curiae, his fee is fixed at Rs. 7,500/- (Rupees Seven Thousand Five Hundred) only, to be paid by the State Legal Services Authority.