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2021 DIGILAW 16 (GAU)

Vanlalvena, S/o Selvela (L) v. State of Mizoram

2021-01-13

MICHAEL ZOTHANKHUMA, NELSON SAILO

body2021
JUDGMENT : Michael Zothankhuma, J Heard Mr. Samuel Vanlalhriata Chhangte, learned Amicus Curiae and Mr. C. Zoramchhana, learned Additional Public Prosecutor, Mizoram for the State. 2. This appeal has been filed against the Judgment & Order dated 30.08.2019 passed by the Special Court, POCSO Act, 2012, Champhai in Sessions Case No. 70/2018, arising out of Criminal Trial No. 794/2018, by which the appellant was convicted under Section 6 of the POCSO Act, 2012 and sentenced to undergo Rigorous Imprisonment for life with a fine of Rs. 5,000/- and in default thereof, further R.I. for 2 months. 3. The prosecution story in brief is that an FIR was lodged by the aunt of the victim on 04.05.2018 with the Officer-in-charge, Champhai Police Station to the effect that her niece, who was 4 years old, had been taken by the appellant into his house and inside the bedroom. The appellant then kissed her private parts and inserted his finger therein. He even made her touch his private parts. The complainant also stated that she had reason to believe that the appellant had tried to rape her niece. On the basis of the FIR dated 04.05.2018, Champhai Police Case No. 46/2018 dated 04.05.2018 was registered under Section 10 of the POCSO Act, 2012. The victim was taken for medical examination on the same day and the medical report stated that the victim’s hymen had been torn and penetrated. 4. The investigating Officer thereafter took the statement of the victim girl, the witnesses and also had the statement of the victim recorded by a Judicial Magistrate. On completion of the investigation, the Investigating Officer found that a prima facie case had been established against the appellant under Section 6 of the POCSO Act, as he had touched and kissed the private parts of the victim on 03.05.2018. 5. After the charge sheet had been submitted and the case committed to the Special Court, POCSO Champhai, charge under Section 6 of the POCSO Act was framed against the appellant on 24.07.2018, wherein the appellant pleaded not guilty and claimed for trial. 6. The learned Trial Court thereafter recorded the evidence of four witnesses including the victim girl. 5. After the charge sheet had been submitted and the case committed to the Special Court, POCSO Champhai, charge under Section 6 of the POCSO Act was framed against the appellant on 24.07.2018, wherein the appellant pleaded not guilty and claimed for trial. 6. The learned Trial Court thereafter recorded the evidence of four witnesses including the victim girl. After the prosecution led their evidence, the statement of the appellant under Section 313 Cr.P.C was recorded and upon hearing the parties, the learned Trial Court came to a finding that the appellant was guilty of having committed an offence under Section 5(n) of the POCSO Act, 2012, as he admitted that he touched the vagina of the victim. The learned Trial Court also recorded the fact that the appellant had been convicted under Section 12 of the POCSO Act in SC No. 85/2017 arising out of Champhai P.S. Case No. 10/2017 vide Judgment & Order dated 05.02.2017. 7. After hearing the parties on the question of sentence, the learned Trial Court sentenced the appellant to suffer Rigorous Imprisonment for life and to pay a fine of Rs. 5,000/-, in default Rigorous Imprisonment for a period of 2 months. 8. The learned Amicus Curiae submits that the case had been initially registered as Champhai Police Station Case No. 46/2018 under Section 10 of the POCSO Act, 2012. However, the appellant had been convicted under Section 6 of the POCSO Act, 2012 without altering the charge by adhering to the provisions of Section 216 of the Cr.P.C. He submits that he has got no other submission to make with regard to the facts of the case, as the evidence of the prosecution has not been rebutted and as the appellant, in his examination recorded under Section 313 Cr.P.C. admitted that he had confined the victim of 4 years in his residence on 03.05.2018 at around 3:30 PM and that he had touched her vagina. 9. Mr. C. Zoramchhana, learned Public Prosecutor, Mizoram on the other hand submits that the evidence of the victim clearly shows that the appellant had kissed the vagina of the victim and that he had made her touch his private parts. 9. Mr. C. Zoramchhana, learned Public Prosecutor, Mizoram on the other hand submits that the evidence of the victim clearly shows that the appellant had kissed the vagina of the victim and that he had made her touch his private parts. He accordingly submits that the said act clearly attracts the provisions of Section 3(d) of the POCSO Act and the appellant is thus guilty of the offence under Section 5(m), which is punishable under Section 6 of the POCSO Act, 2012. 10. We have heard the learned counsels for the parties and have perused the lower court records. 11. The Champhai Police Station case No. 46/2018 was no doubt registered under Section 10 of the POCSO Act, 2012, keeping in view the complaint made by the complainant against the appellant. However, the charge sheet made and submitted by the I.O shows that the I.O. during investigation, had found a prima facie case under Section 6 of the POCSO Act, 2012 against the appellant, as he touched and kissed the private parts of the victim girl and as the medical examination report had revealed that the hymen of the victim girl was torn and penetrated. It was in view of the I.O. having stated in the charge sheet that a prima facie case under Section 6 of the POCSO Act was established against the appellant, that the Trial Court had framed charge against the appellant under Section 6 of the POCSO Act, 2012. In view of the above facts, it cannot be said that any prejudice has been caused to the appellant while taking his defence during the trial, as there was no alteration of charge during the trial or before pronouncement of the impugned judgment. As the provisions of Section 216 Cr.P.C. cannot be pressed into play, we find no substance in the submission made by the learned Amicus Curiae that the appellant could not have been convicted and sentenced under Section 6 of the POCSO Act, 2012. 12. On coming to the facts of the case, the evidence of the Doctor is to the effect that she identified the appellant, as he had a previous case of a similar nature. The evidence of the medical doctor is also to the effect that the hymen of the victim was torn and penetrated. 13. 12. On coming to the facts of the case, the evidence of the Doctor is to the effect that she identified the appellant, as he had a previous case of a similar nature. The evidence of the medical doctor is also to the effect that the hymen of the victim was torn and penetrated. 13. The evidence of the complainant is to the effect that she is the younger sister of the victim’s father and that when she came to know that the appellant had taken the victim into his bedroom and touched and played with the private parts of the victim by inserting his finger therein, the complainant made the FIR to the Police. As per the complainant’s evidence, the incident came to light when the victim narrated about the pain in her vagina, while the family were taking dinner on the day of the incident. The mother of the victim examined the private parts of the victim and found that her daughter was sexually assaulted. The complainant thereafter submitted the FIR on behalf of the parents of the victim, as they were illiterate. 14. The evidence of PW-4 i.e., the I.O., is to the effect that the victim told him that the accused had forcefully taken her inside his residence on 03.05.2018. After making her naked, the accused had forced his penis against her private parts and also rubbed it. He also tried to insert his penis inside her vagina. He also applied his mouth on her vagina. The appellant also forced her to hold his penis. The medical report and the statement of the victim clearly indicated that there was sexual assault that amounted to rape. As such, the I.O. sought permission from his superior officer for alteration/addition of the charge/section from the original one. As permission was given on the basis of the evidence gleaned from his investigation, the charge section was altered to section 6 of POCSO Act. 15. The evidence of the victim girl was taken in “question and answer form” and the same is reproduced below:- “Q.1 Do you know Vanlalvena @ Apa Vena of Hnahlan ? Ans : Yes, I know him. Q.2. Do you hate Apa Vena ? Ans: Yes. Q.3. Did you go near Apa Vena ? Ans : Yes, he took me to his home. Ans : Yes, I know him. Q.2. Do you hate Apa Vena ? Ans: Yes. Q.3. Did you go near Apa Vena ? Ans : Yes, he took me to his home. He made me lie down on his bed, took off my underwear and he licked my private part. Q.4. What did Apa Vena do to you? Ans : He took off his pant and he made me touch his private part. Q.5. Did you touch it for long? Ans: Not that long Q.6. Did Apa Vena lick your private part for long ? Ans : Not that long.” The cross examination of the victim was declined by the defence counsel. The evidence of the victim girl in the Trial Court is to the effect that the appellant took the victim to his home and made her lie on his bed, wherein the victim girl’s underwear was taken out. Thereafter, the appellant licked the victim’s private parts and he made the victim touch his penis. 16. The statement of the victim given to the Judicial Magistrate on 04.05.2018, which is again in “question and answer form” is as follows:- “Q. 1. Have you started attending school ? Ans : No, I have not. Q.2. In which locality do you stay ? Ans : Hnahlan, Saron Veng Q.3. On 3.5.2018 at around 3:30 pm, did your mother send you out to throw garbage ? Ans : Yes Q.4. Did Lalvena call you inside his home? Ans : Yes. Q.5. Did he call your elder brother Thanglawmsanga too ? Ans : No, he did not Q.6. Were you alone when you entered his home ? Ans : Yes, I was alone. Q.7. Where was your brother Thanglawmsanga ? Ans : He went home. Q.8. What did Lalvena do to you ? Ans : He gave me a coin and he took me to their bed. He took off my underwear and he licked and touched my private part. He even made me touch his private part. Q.9. Did it hurt ? Ans : Yes, however I did not cry. Q.10. To whom did you tell what Lalvena did to you ? Ans : To my mother.” The statement of the victim before the Judicial Officer is to the effect that the appellant took the victim into his house, wherein he gave her a coin and took her to the bed. Ans : Yes, however I did not cry. Q.10. To whom did you tell what Lalvena did to you ? Ans : To my mother.” The statement of the victim before the Judicial Officer is to the effect that the appellant took the victim into his house, wherein he gave her a coin and took her to the bed. He thereafter took off the victim’s underwear and licked and touched her private parts. He even made the victim touch the appellant’s private parts. She also answered that the act of the appellant hurt her. Though the statement given by the victim before the Judicial Officer was not exhibited during trial, it can be seen that the judicial statement and the testimony of the victim before the learned Trial Court is more or less the same, which lends credence that the victim’s testimony is truthful. 17. The examination of the appellant under Section 313 Cr.P.C. shows that the appellant admits to confining the victim on 03.05.2018 at around 3:30 PM inside his house and that he had touched the vagina of the victim playfully, but did not strip off her clothes. However, the above act was not done inside his bedroom. The examination of the appellant recorded under Section 313 Cr.P.C. is reproduced below:- “Q. 1. The evidence against you is that on 3.5.2018 at around 3:30 Pm you wrongfully confined victim in the present case name X aged about 4 yrs inside your residence at Hnahlan. Is it correct ? Ans : Yes, it is correct. Q.2. The evidence against you is that you pulled the victim inside your bedroom and striped off her wearing apparels and assaulted her by touching her vagina and played with. Is it correct ? Ans : I did touched vagina of the victim but never stripped off her wearing apparels and it was not inside my bedroom. I just did it playfully. Q.3. The evidence against you is that on that occasion you also assaulted her by applying your mouth on the vagina of the victim and also let her hold your penis. Is it correct ? Ans : No, it is not correct. Q.4. The evidence against you is that you assaulted the victim by inserting your penis into vagina of the victim and also inserting your finger into vagina of the victim. Is it correct ? Is it correct ? Ans : No, it is not correct. Q.4. The evidence against you is that you assaulted the victim by inserting your penis into vagina of the victim and also inserting your finger into vagina of the victim. Is it correct ? Ans : No, it is not correct. Q.5. Do you have any other thing to tell this Court ? Ans : On the occasion complaint of I was under intoxication of liquor. I remembered that I touched private part of the victim and played with but never inserted my finger nor my penis. I admitted that I really touched the vagina of the victim and played with but never inserted my finger to cause penetration/torn of her hymen.” 18. The evidence adduced by the prosecution witnesses, including the victim and the statement given by the appellant under Section 313 Cr.P.C. corroborates each other, to the extent that the appellant had touched the vagina of the victim. Besides the above, there is nothing to show in the evidence recorded that can cast a doubt on the testimony given by the victim girl. 19. In the case of Narender Kumar Vs. State (NCT of Delhi), reported in (2012) 7 SCC 171 , the Apex Court has held that 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. 20. In the case of State of Uttar Pradesh Vs. Krishna Master and Others, reported in (2010) 12 SCC 324 , the Apex Court has held that it would be injustice to a child witness possessing a sharp memory to say that it is inconceivable for him to recapitulate facts in his memory witnessed by him long ago. A child of tender age is always receptive to abnormal events which take place in its life and would never forget those events for the rest of his life. 21. A child of tender age is always receptive to abnormal events which take place in its life and would never forget those events for the rest of his life. 21. A reading of the above Judgments of the Apex Court clearly goes to show that though the victim was only 4 years old at the time of the incident, a child witness can also be a reliable witness. In the present case, the competency of the victim, as a child witness, has not been questioned by the appellant in this appeal or even during the trial proceedings. As such, we do not find any reason not to accept the victim’s testimony. 22. Section 3 & 5(m) of the POCSO Act, 2012 states as follows:- “3. Penetrative sexual assault. – A person is said to commit “penetrative sexual assault” if – (a) he penetrated 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 (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 (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 (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. Section 5 (m) 5. Aggravated penetrative sexual assault.- (m) whoever commits penetrative sexual assault on a child below twelve years; or” 23. As the evidence of the victim girl is to the effect that the appellant had licked the victim’s private parts and the same not being rebutted by the appellant, we find that there has been penetrative sexual assault as reflected in Section 3(d) of the POCSO Act, 2012. Further, the child being below 12 years of age, the offence attracts Section 5(m), the punishment for which would attract Section 6 of the POCSO Act, 2012. Further, the child being below 12 years of age, the offence attracts Section 5(m), the punishment for which would attract Section 6 of the POCSO Act, 2012. In view of the reasons stated above, we do not find any ground to interfere with the impugned Judgment & Order dated 30.08.2019 in so far as it convicts the appellant under Section 6 of the POCSO Act, 2012. Though the appellant had been convicted earlier under Section 12 of the POCSO Act, 2012 in SC No. 58/2017, keeping in view the fact that the appellant is now around 52 years of age, we are of the view that the interest of justice would be served if the appellant is sentenced to undergo the minimum sentence of Rigorous Imprisonment for 20 years with a fine of Rs. 5,000/-, in default thereof, further Rigorous Imprisonment for 2 months. The sentence imposed upon the appellant is accordingly modified to the extent indicated above. 24. The above being said, we are of the view that the learned Trial Court could not have directed that the sentence imposed in Sessions Case No. 70/2018 should run concurrently with the sentence passed against the appellant in Sessions Case No. 85/2017, inasmuch as, they are two different cases, which were tried separately. The sentence imposed by the Trial Court in SC No. 85/2017 had been made vide Judgment & Order dated 05.02.2017, for a period of 1 year with a fine of Rs. 2,000/-, in default 7 days Rigorous Imprisonment, while the Judgment & Order in Sessions Case No. 70/2018 was passed on 30.08.2019. Thus, by the time the impugned Judgment & Order dated 30.08.2019 had been passed in Sessions Case No. 70/2018, the sentence inflicted in SC No. 85/2017 had already been passed. As such, the two sentences could never run concurrently. The said para 22 of the impugned Judgment & Order is accordingly set aside. The appeal is accordingly dismissed, subject to the above modification of the impugned Judgment & Order dated 30.08.2019. Send back the LCR. 25. In appreciation of the assistance provided by the learned Amicus Curiae, his fee is fixed at Rs. 9,000/-, to be paid by the Mizoram State Legal Services Authority on production of a copy of this order.