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2020 DIGILAW 735 (GAU)

H. T. Ramfangzauva v. State of Mizoram

2020-10-29

NELSON SAILO

body2020
JUDGMENT : Nelson Sailo, J. 1. Heard Mr. Vanlalnghaka, learned Amicus Curiae for the appellant and also heard Mr. C. Zoramchhana, the learned Public Prosecutor, Mizoram, appearing for the State respondent No. 1. No one appears for respondent No. 2/complainant despite notice. 2. This is an appeal against the Judgment & Order dated 10.07.2018 passed by the Court of Special Judge, under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) in S.C. No. 93/2015 arising out of Criminal Trial No. 811/2018 whereby, the accused/appellant was convicted under Section 6 of the POCSO Act and sentenced to undergo a rigorous imprisonment for 10 years and to pay a fine of Rs. 1,000/-. In default of the payment of fine, he was directed to undergo a simple imprisonment for 10 days. 3. Be it stated herein that this is the second time the appellant has preferred an appeal from Jail. For the same offence, the appellant earlier was given a similar sentence vide Order darted 04.08.2017 passed by the same Court. The order of sentence was preceded by Judgment & Order dated 25.7.2017, passed by the Trial Judge which however was without any conclusion and finding on the charge framed under Section 6 of the POCSO Act. Therefore, when the appellant filed an appeal before this Court, which was registered and numbered as Criminal Trial No. 34/2017 (J), the same was disposed of vide Judgment & Order dated 01.05.2018 by remanding the case back to the Trial Court with a direction for fresh disposal of the case by writing a fresh judgment while recording the findings in accordance with law, on the basis of the evidences and materials already available on record within a time frame. Pending such consideration, the appellant was allowed to go on bail. 4. In terms of the above direction of this Court, the Trial Court passed a fresh Judgment & Order on 10.07.2018 convicting and sentencing the accused in the manner as already stated herein above. The appellant being aggrieved is thus before this Court again through this Jail appeal. 5. The case of the prosecution in brief is that on 15.11.2014, an FIR was lodged by one Sh. The appellant being aggrieved is thus before this Court again through this Jail appeal. 5. The case of the prosecution in brief is that on 15.11.2014, an FIR was lodged by one Sh. H. Darhmingliana, the Chairman, Child Welfare Committee, Mamit District, before the Officer-in-Charge, West Phaileng Police Station, to the effect that the appellant sexually molested his own daughter, who was 6 years old while she was sleeping at night. The appellant would touch her private part against her will and the last incident happened on 14.11.2014, (Friday) night. Since this kind of incident happened to her on earlier occasions as well, he requested the Police to take necessary action for the safety of the child. As a result of the FIR, West Phaileng P.S Case No. 22/2014 under Section 376 (2)(f) IPC, read with Section 6 of the POCSO Act was registered on 15.11.2014 and an investigation was conducted. After investigation was completed, the Investigating Officer, having found a prima facie case against the appellant under Section 6 of the POCSO Act, filed the charge-sheet before the Court. Charge was framed against the appellant under Section 6 of the POCSO Act by the Special Judge, under POCSO Act on 11.08.2015 and to which, the appellant pleaded not guilty and claimed for trial. As such, the trial against the appellant commenced. In order to establish their case, the prosecution examined as many as 7 (seven) prosecution witnesses while the appellant did not examine any witness in his defence. The appellant was then examined under Section 313 Cr.P.C. and thereafter, the Trial Court upon hearing the parties passed the impugned Judgment & Order dated 25.07.2017 and the Order of Sentence dated 04.08.2017. However, as already stated herein above, the same was interfered with by this Court vide Judgment & Order dated 01.05.2018 in Criminal Trial No. 34/2017 (J), by remanding the matter back to the Trial Court for passing a fresh judgment & order in accordance with law, on the basis of evidence and materials available on record. Thereafter, the Trial Court passed the impugned Judgment & Order dated 10.07.2018 convicting and sentencing the appellant. 6. The learned Amicus Curiae Mr. Vanlalnghaka submits that the appellant was not given opportunity to adduce evidence in his defence. Thereafter, the Trial Court passed the impugned Judgment & Order dated 10.07.2018 convicting and sentencing the appellant. 6. The learned Amicus Curiae Mr. Vanlalnghaka submits that the appellant was not given opportunity to adduce evidence in his defence. According to him, this is clear from the fact that the matter was remanded back to the Trial Court for fresh decision, on the basis of evidences and materials already available on record. He submits that it is also clear from the written argument submitted on behalf of the appellant before the Trial Court, where it was stated that the appellant was not given any chance in terms of Section 247 & 243 of the Cr.P.C. to enter upon his defence and to produce his evidence. The learned Amicus Curiae further submits that since the prosecutrix is a girl child, the medical examination should have been conducted by a woman Doctor in terms of Section 27(2) of the POCSO Act. Referring to the evidence of the Doctor, who was examined as PW-5, the learned Amicus Curiae submits that the report does not contain any specific finding so as to warrant the conviction of the appellant under Section 6 of the POCSO Act. He therefore submits that the impugned judgment & order should be set aside and the matter remanded back to the Trial Court to give the appellant an opportunity to adduce his evidence to defend himself from the charge. In support of this submission, he relies upon the following decisions:- (i) Kalyani Baskar (Mrs.) Vs. M.S. Sampoornam (Mrs.),: (2007) 2 SCC 258 . (ii) T. Nagappa Vs. Y.R Muralidhar, (2008) 5 SCC 633 . 7. The learned Public Prosecutor Mr. C. Zoramchhana, on the other hand, submits that the prosecution has been able to establish the charge made against the appellant under Section 6 of the POCSO Act with proof beyond reasonable doubt, which can be seen from the depositions of the prosecution witnesses including the prosecutrix. He submits that the appellant is guilty of having committed a crime against his own minor daughter and the same being most unnatural and condemnable, the appellant was rightly convicted under Section 6 of the POCSO Act by the Trial Court and sentenced to imprisonment under the relevant provisions of the POCSO Act. He submits that the appellant is guilty of having committed a crime against his own minor daughter and the same being most unnatural and condemnable, the appellant was rightly convicted under Section 6 of the POCSO Act by the Trial Court and sentenced to imprisonment under the relevant provisions of the POCSO Act. The learned Public Prosecutor submits that the evidence of the prosecutrix alone is sufficient to convict the appellant and her evidence must receive the same weight as is attached to an injured witness. In support of his submission, he relies upon the case of State of Maharashtra Vs. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 . The learned Public Prosecutor also submits that the presumption of the appellant having committed the alleged offence in view of the evidence on record is heavily against him and therefore, Section 29 of the POCSO Act is attracted. 8. 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 records of the Trial Court. 9. Facts not in dispute is that the prosecutrix, who was aged 6 years at the time of the alleged incident is the youngest amongst the 5 (five) daughters of the appellant. The allegation against the appellant is that he sexually molested the prosecutrix, by touching her private part while they were sleeping at night in the same bed and the last incident happened on 14.11.2014. Accordingly, charge under Section 6 of the POCSO Act was framed against the appellant. Since he did not plead guilty, trial was conducted. The prosecution, as stated earlier, examined 7 (seven) prosecution witnesses while the defence did not examine any witness. 10. PW-I Sh. H. Darhmingliana, who is also the informant, in his examination-in-chief, deposed that he knows the appellant who stood before the Court. At the relevant time, he was the Chairman of the District Child Welfare Committee for Mamit District. On 15.11.2014, he received a telephonic call from the District Child Protection Unit, Mamit, informing him that there was an incident at West Phaileng, where an offence under the POCSO Act was committed. He was informed that the victim was the prosecutrix and the accused was the appellant. On 15.11.2014, he received a telephonic call from the District Child Protection Unit, Mamit, informing him that there was an incident at West Phaileng, where an offence under the POCSO Act was committed. He was informed that the victim was the prosecutrix and the accused was the appellant. In order to enquire into the incident he along with other CWC Members went to West Phaileng and on reaching, they examined the prosecutrix and her elder sister. After interacting with them, they came to the conclusion that the appellant had actually assaulted the prosecutrix by poking his finger in her private part They also found that the appellant was in the habit of drinking (consuming alcohol) and after he was drunk, he used to assault his children. Therefore, he, being the Chairman of the Child Welfare Committee of Mamit District, he submitted the FIR against the appellant The PW-1 exhibited the FIR submitted by him and the signature which he appended in the FIR as Exbt. P-1 and P-1 (a) respectively. The depositions he made in his examination-in-chief were neither falsified nor shaken when he was cross-examined by the defence. 11. PW-2 is the prosecutrix and in her exanimation-in-chief, she deposed that she is the youngest amongst the 5 daughters born to their parents. She stated that her parents separated and after which, she and her other three sisters stayed with her father at West Phaileng while the second eldest amongst them stayed with their mother at Luangmual Vengthlang. She further stated that she, her elder sister and her father used to sleep in the same bed and that her father used to poke his finger into her vagina at night while they were sleeping. She felt pain and used to cry but her father warned her if she cried, he would beat her severely. She therefore stated that she was afraid of her father and she did not remember how many nights her father had assaulted her. The last time he assaulted her, she cried, and in the morning her elder sister Lalmuanawmi asked her why she cried the other night. She then told her sister how their father used to sexually assault her. In her cross examination, she reiterated what she stated in her exanimation-in-chief. She also denied the suggestion that was made to her that she was tutored by her mother to make false allegations against her father. She then told her sister how their father used to sexually assault her. In her cross examination, she reiterated what she stated in her exanimation-in-chief. She also denied the suggestion that was made to her that she was tutored by her mother to make false allegations against her father. 12. Lalmuanawmi was examined as PW-3. She is the eldest amongst the five sisters. In her examination-in-chief, she stated that at the relevant time they were living at West Phaileng village. Their parents divorced in the month of June/July and thereafter, she and her 3 (three) younger sisters lived with her father. The prosecutrix and Lalthazuali used to sleep in the same bed with their father while she and her sister Lalhmangaihsangi slept in a separate bed in the ground floor of the house. On the night of 14.11.2014 (Friday) at midnight, she heard her younger sister (the prosecutrix) who was sleeping with her father cry and she also heard her father scolding her. The next day when she asked the prosecutrix why she cried the other night, she told her that her father used to poke his finger into her vagina and that the other night, her father again poked his finger into her vagina. On hearing this, PW-3 said she became very angry with her father and she reported about the incident to Pi. Lalhnunhlimi, Social Worker, District Child Protection Unit, Mamit district since they used to come to their school to teach the students about the sexual harassment faced by females. They had asked the students that if they came across any such incident of harassment, they should inform the matter to them. As such, she informed about the incident to the District Child Protection Unit On getting the information, Pi. Lalnunhlimi along with other members of Child Welfare Committee, Mamit district, came to West Phaileng to interact with her and she informed them about the incident. The West Phaileng Police then arrested her father and they also took her statement. PW-3 in her cross-examination reiterated what was stated in her examination-in-chief. She also denied the suggestion that her mother instigated her to institute the present criminal offence against her own father. 13. Smt. F. Lalnunhlimi was examined as P W-4. In her exanimation-in-chief, she stated that during the year 2014, she was posted at Mamit as Social Worker under the District Child Protection Unit, Mamit district. She also denied the suggestion that her mother instigated her to institute the present criminal offence against her own father. 13. Smt. F. Lalnunhlimi was examined as P W-4. In her exanimation-in-chief, she stated that during the year 2014, she was posted at Mamit as Social Worker under the District Child Protection Unit, Mamit district. On 15.11.2014 at around 8:00 AM to 9:00 AM, she received a phone call from Lalmuanawmi, West Phaileng (elder sister of the prosecutrix and PW-3) informing her that her younger sister was sexually assaulted by their father. On the same day, she alongwith other members of the District Child Protection Unit and members of Child Welfare Committee went to West Phaileng and met the prosecutor and her sister. They asked the prosecutrix and her sister what had happened and to which they informed that the prosecutrix used to sleep beside her father and while sleeping, her father used to touch her private part and that he had touched her about 10 (ten) times. PW-4 also stated that the informant Sh. H. Darhmingliana, Chairman of the Child Welfare Committee, was also present when the prosecutrix and her sister narrated about the incident. As the relatives of the prosecutrix did not want to submit an FIR, Sh. H. Darhmingliana submitted the FIR at West Phaileng Police Station. PW-4, in her cross-examination reiterated what she had stated in her examination-in-chief. He also stated the District Child Protection Unit conducted child protection awareness campaign at every school in West Phaileng and during such campaign they informed the participants and children to share information on any sexual harassment so that they can help the victim. 14. Dr. C. Vanlalduhsaka, who conducted medical examination upon the prosecutrix, was examined as PW-5. In his examination-in-chief, he deposed that during the year 2014, he was posted at West Phaileng Primary Health Centre as Medical Officer. On 15.11.2014, he received a requisition to examine the victim/prosecutrix as it was alleged that she was raped. Accordingly, he conducted medical examination upon the victim and found her to be physically and mentally normal. He found no sign of influence of alcohol or drugs nor seminal stains or other stains on her clothes. There were no marks of violence on her body on general examination. He found no pubic hair, no seminal stains, no bruising or laceration of external genitalia. He found no sign of influence of alcohol or drugs nor seminal stains or other stains on her clothes. There were no marks of violence on her body on general examination. He found no pubic hair, no seminal stains, no bruising or laceration of external genitalia. Her hymen was ruptured but there was no sign of infection. He exhibited his medical examination report as well as his signature as Exbt. P-2 and Exbt. P-2A respectively. In his cross-examination, PW-5 stated that he examined the prosecutrix since there was no female Doctor available. It may be noted that by this statement, the loophole sought to be projected by the learned amicus curiae that the prosecutrix was not examined by a female doctor only stands answered. At any rate, no prejudice can be said to have been caused to the appellant. 15. PW-6 Lalsangbera Sailo, in his examination-in-chief, stated that in the year 2014, he was posted at West Phaileng Police Station as Officer-in-Charge. On 15.11.2014, an FIR was submitted by Sh. H. Darhmingliana, to the effect that the prosecutrix was sexually assaulted by the appellant and accordingly, a case was registered. The case was endorsed to S.I Lalbiakzama for investigation. Investigation was accordingly conducted but before he could submit the charge-sheet, S.I. Lalbiakzama was posted out to the SPO office in Mamit and therefore, he handed over the case to the Officer-in-Charge of West Phaileng. The case then was endorsed to him and he, after perusing the materials, found a prima facie case against the appellant under Section 376 (2)(f) IPC read with Section 6 of the POCSO Act and he submitted the charge-sheet before the Court. PW-6 exhibited the charge-sheet submitted by him and his signature appended in the charge-sheet as Exbt. P-3 and Exbt. P-3 A respectively. In his cross-examination, he reiterated what he had stated in the examination-in-chief. 16. Sh. Lalbiakzama was examined as PW-7 and in his examination-in-chief, he stated that in the year 2014, he was posted at West Phaileng as the 2nd O.C. On 15.11.2014, an FIR was lodged by Sh. H. Darhmingliana to the effect that one minor girl aged about 6 (six) years old was sexually assaulted by the appellant and accordingly, case was registered under Section 376 (2)(f) of the IPC, read with Section 6 of the POCSO Act. The Officer-in-Charge of the Police Station endorsed the case to him for investigation. H. Darhmingliana to the effect that one minor girl aged about 6 (six) years old was sexually assaulted by the appellant and accordingly, case was registered under Section 376 (2)(f) of the IPC, read with Section 6 of the POCSO Act. The Officer-in-Charge of the Police Station endorsed the case to him for investigation. He deposed that during the course of his investigation, he visited the place of occurrence, examined the complainant and the victim and also recorded their statements. He also examined other available witnesses and recorded their statements. He sent the victim to West Phaileng PHC for medical examination and arrested the accused and interrogated him. The accused however denied the allegation made against him. Before he could complete the investigation, he was transferred to S.P Office, Mamit and he handed over the case to the Officer-in-Charge of West Phaileng. In his cross examination, PW-7 reiterated what he stated his examination-in-chief. 17. The appellant in his defence did not examine any witness and the Trial Court then examined the appellant under Section 313 of the Cr.P.C. The appellant however denied the allegations when he was confronted with the evidence of the prosecution witnesses. However, when he was asked about the findings of the medical report that the hymen of the prosecutrix was ruptured, he stated that the prosecutrix used to poke her vagina with the tip of a pencil and that he had no sexual intention with his own daughter. The last question put to him was as to whether he wanted to say anything before the Court and to which, he replied by saying that as he was taking drinks, his eldest daughter wanted the Child Protection Unit to scold him and to advise him not to take drinks. 18. From the evidence led by the prosecution witnesses, it may be seen that the statement of the prosecutrix is clearly corroborated by the other prosecution witnesses, more particularly by PW-3 and PW-4 amongst others. There is also consistencies in their version. The prosecutrix in her evidence stated that she told her elder sister Lalmuanawmi about the incident when she confronted her with the question as to why she cried the other night Lalthlamuani, in turn, stated that she informed about the incident to Pi. Lalnunhlimi (PW-4). There is also consistencies in their version. The prosecutrix in her evidence stated that she told her elder sister Lalmuanawmi about the incident when she confronted her with the question as to why she cried the other night Lalthlamuani, in turn, stated that she informed about the incident to Pi. Lalnunhlimi (PW-4). PW-4 in her examination-in-chief also stated that she received a phone call from Lalthantluangi on 15.11.2015 informing her about the incident and pursuant to which, they visited West Phaileng and interacted with the prosecutrix and her elder sister Lalmuanawmi. Therefore, the version of the prosecutrix appears to be truthful, cogent and reliable. 19. The next question which requires consideration is as to whether the appellant was given opportunity to defend himself by examining his witness or any other evidence. The learned Amicus Curiae, when asked as to what evidence the appellant would have liked to present, could not give any definite or even a probable suggestion. All that he pointed out and relied was the written argument submitted by the defence counsel before the Trial Court. It may be seen that the appellant was represented and defended by a competent and a senior lawyer before the Trial Court Had the appellant wanted to lead any evidence in his defence, he could have easily done so by simply asking or demanding an opportunity. The records also do not show or suggest that the appellant wanted to lead evidence in his defence. It is also noticed that even during his examination under Section 313 Cr.P.C., the appellant was asked as to whether he would like to say any other thing apart from answering to the questions put to him by the Court. The appellant in response had nothing to say and or even suggest that he was deprived of the opportunity to defend himself. This Court fully appreciates and accepts the proposition of law laid down by the Apex Court in Kalyani Baskar (Mrs.) (supra) and T. Nagappa (supra). There is no denying the fact that fair trial includes fair and proper opportunities allowed by law to prove one's innocence. However, in the present case, the appellant in his earlier appeal filed from Jail before this Court stated that he was not trying to prove his innocence and that he has nothing to say to justify himself against the judgment & order rendered by the Trial Court. However, in the present case, the appellant in his earlier appeal filed from Jail before this Court stated that he was not trying to prove his innocence and that he has nothing to say to justify himself against the judgment & order rendered by the Trial Court. He also stated that the judgment of the Trial Court was only exaggerated. While explaining what had happened, he concluded by saying that he will not commit such kind of crime in future and promised to lead a normal life. After the matter was remanded back to the Trial Court for passing a fresh judgment in accordance with law, the appellant was convicted and sentenced to imprisonment and against which he filed the present appeal. A perusal of the appeal besides mentioning that Section 247 and 243 Cr.P.C. was not complied with nowhere suggests or indicates as to who he would like to examine as defence witness and what exactly was deprived to him and which prevented him from making a defence. On perusing the contents of the appeal, the same are only repetition of what the appellant had stated in his examination under Section 313 Cr.P.C. The appellant moreover had due opportunity to cross-examine all the prosecution witnesses during the trial. Therefore, upon due consideration of the matter in its entirety and on careful perusal of the lower Court records, I find no merit in the appeal. In the result, there is no option but to dismiss the appeal which I accordingly do. 20. It is seen that as the LCR sent to this Court are only photocopies of the original record and therefore, the same need not be sent back. However, a copy of this order be sent to the Special Superintendent, Central Jail, Aizawl who shall in turn inform the appellant about the outcome of his appeal. 21. As a token of appreciation for the valuable assistance rendered by the learned Amicus Curiae Mr. Vanlalnghaka, he shall be paid a sum of Rs. 7,500/- (Rupees Seven Thousand Five Hundred) only by the Mizoram State Legal Services Authority, on production of a copy of this order.