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2022 DIGILAW 1082 (GAU)

State of Mizoram v. R. Vanlaltura

2022-09-23

ROBIN PHUKAN

body2022
JUDGMENT : Heard Ms. Linda L. Fambawl, learned Additional Public Prosecutor for the State of Mizoram (Appellant) and also heard Mr. Joesph Lalchhanhima Renthlei, learned Amicus Curiae. 2. This appeal is preferred under section 374 of the Code of Criminal Procedure by the State of Mizoram against the judgment and order, dated 28.11.2017, in SC. Case No.139 of 2016, Crl. Trial No. 1260 of 2016, under section 6 of the POCSO Act, passed by the learned Special Judge, POCSO Act, Aizawl District, Aizawl. It is to be mentioned here that vide impugned judgment and order the learned court below had convicted accused Sh. R. Vanlaltura, under section 8 of the POCSO Act and sentenced him to suffer rigorous imprisonment for a period of three years and also to pay a fine of Rs. 1000/ (Rupees one thousand) only, and in default to suffer simple imprisonment for a period of fifteen days. 3. It is to be noted here that the respondent could not able to engage one Advocate and as such Mr. Joesph Lalchhanhima Renthlei, learned Advocate, Gauhati High Court Bar Association, Aizawl Permanent Bench, has been appointed as Amicus Curiae, to assist the Court. 4. The factual background leading to filing of this appeal is briefly stated as under:- “On 02.06.2016, one Shri H. Lalmuankima, father of the victim girl, had lodged an FIR with the Officer-in-Charge, Kulikawn Police Station to the effect that on 01.06.2016, at about 1 PM, accused Laltura has taken his daughter-Smti. X (name withheld) inside his house at Hlimen Venglai locality, and thereafter, he licked her private part and also inserted his finger. The incident was reported to his mother-in-law, by one of the friend victim, and then he came to know about the same and reported the matted to Kulikawn P.S. On receipt of the aforesaid FIR, the Officer-in-Charge Kulikawn Police Station had registered a case, being Kulikawn P.S Case No. 69/2016, under Section 6 of the POCSO Act, and endorsed S.I.-Mr. Lalhmechhmoni to investigate the same. Lalhmechhmoni to investigate the same. The Investigating Officer (I.O.) then visited the place of occurrence, prepared sketch map of the same, and examined the witnesses, and seized the birth certificate of the victim preparing seizure list, and thereafter, he got the victim girl examined by Doctor and collected the report and also got her statement recorded in the court under section 164 Cr.P.C. Thereafter, he had arrested the accused and forwarded him to the court. Upon completion of investigation he laid charge-sheet against accused R. Vanlaltura to stand trial in the court under Section 6 of the POCSO Act. Accordingly, the accused is produced before the Court of the learned Special Judge, under POCSO Act, Aizawl. Thereafter, hearing the learned Advocates of both sides, the learned Court below has framed charge against the accused under Section 6 of the POCSO Act and on being read and explained over the same to him, he pleaded not guilty and claimed to be tried. Thereafter, the learned court below has examined as many as eleven witnesses, including the Medical Officer (M.O.) and the I.O. and after closing the prosecution witnesses, examined the accused under Section 313 of the Criminal Procedure Code. And thereafter, hearing arguments of the learned Advocates on both sides, the learned Court below had found that instead of the offence under section 6 of the POCSO Act, an offence under section 8 of the POCSO Act is made out, and accordingly, convicted him under the said sections of law and sentenced him as aforesaid.” 5. And thereafter, hearing arguments of the learned Advocates on both sides, the learned Court below had found that instead of the offence under section 6 of the POCSO Act, an offence under section 8 of the POCSO Act is made out, and accordingly, convicted him under the said sections of law and sentenced him as aforesaid.” 5. Being highly aggrieved the State of Mizoram has preferred this appeal under section 374 of the Code of Criminal Procedure on the following grounds:- (i) That, the learned court below had eared in law and in fact while passing the impugned judgment and order; (ii) That, the learned court below had failed to appreciate the ingredients of section 6 of the POCSO Act and that even a slightest penetration is sufficient to attract the section and ignoring the same the learned court below has recorded conviction under section 8 of the POCSO Act on the ground that there was no penetration; (iii) That, the prosecution side has been able to prove the case by examining as many as nine witnesses against the accused beyond all reasonable doubt; (iv) That, the accused had committed an act a penetrative sexual assault which falls under section 3 (a), (b), (c) and (d) of the POCSO Act, and as such alteration of charge from section 6 to section 8 of the POCSO Act is improper and illegal; (v) That, as per definition of section 5 (m) of the Act the accused had committed aggravated penetrative sexual assault and as such alteration of charge illegal; Therefore, it is contended to allow the appeal by setting aside the conviction under section 8 of the POCSO Act and to convict him under section 6 of the POCSO Act and to sentence him adequately. 6. Ms. Linda L. Fambawl, learned Addl. P.P., appearing for the appellant, submits that the impugned judgment and order suffers from manifest illegalities and the same requires interference of this court. Ms. Fambawl further submits that the accused had committed the offence which squarely falls under the purview of section 3(d) of the POCSO Act and as such section 6 of the POCSO Act is clearly attracted here in this case and as such alteration of the charge from section 6 to 8 of the Act was illegal and unwarranted. Ms. Ms. Fambawl further submits that the accused had committed the offence which squarely falls under the purview of section 3(d) of the POCSO Act and as such section 6 of the POCSO Act is clearly attracted here in this case and as such alteration of the charge from section 6 to 8 of the Act was illegal and unwarranted. Ms. Fambawal also referred one case law: Bhupen Kalita vs. State of Assam reported in (2020) 5 GLR 153, to contend that even a superficial penetration of the male organ into the vagina amounts to penetrative sexual assault within the meaning of section 3 of the Act punishable under section 4 of the Act. Referring to section 9(m) of the Act Ms. Fambawl further submits that even accepting for the sake of argument, accepting it but not admitting, that an offence of ‘sexual assault’ is made out against the accused, the same falls under the ‘aggravated sexual assault’ as defined under section 9(m) of the POCSO Act, which attract punishment, prescribed under section 10 of the said Act and from that point of view also the punishment so handed down is quite inadequate, and therefore, it is contended to allow the appeal. 6. Per contra, Mr. Joesph Lalchhanhima Renthlei, learned Amicus Curiae submits that the respondent has already served out the punishment and that he is an aged person and sending him to jail again by enhancing the punishment is unwarranted and uncalled for in view of the materials on record. Mr. Renthlei further submits that there is no eye witness to the occurrence except the evidence of the victim and her evidence is not of sterling quality, and that the medical evidence has not supported her evidence and that there is also contradiction in her evidence with that of the facts mentioned in the FIR and that the learned Court below had rightly arrived at the findings and having convicted him under section 8 of the POCSO Act sentenced him to undergo S.I. for a period of three years and also to pay a fine of Rs.1000/ with default stipulation. The learned Amicus curiae also referred one case law; Ganesan vs. State, represented by Inspector of Police reported in (2020)10 SCC 573 , to contend that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspired confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. And as the evidence of the victim is not of such quality, enhancement of punishment by convicting him under section 6 of the Act and sending him to jail is not warranted, and therefore, contended to dismiss the appeal. 7. Having heard the submission of learned advocates of both sides I have carefully gone for the petition and the documents placed on records and also perused the LCR and the case laws referred by learned Advocates of both sides. 8. It appears from the record of the learned Court below that while the occurrence took place on 01.06.2016, at around 1:00 PM, inside the house of the accused Laltura, situated at Hlimen locality, the FIR was lodged on 02.06.2016. Thus there appears to be delay of one day in lodging the same. But it appears that the father of the victim, whom the prosecution side has examined as P.W.1, testified that immediately after knowing about the occurrence from his wife he had reported the matter to police. Even, there is delay in lodging the FIR the same is not material in view of the ratio laid down by the Hon’ble Supreme Court in the case of State of Punjab vs. Gurmit Singh, reported in 1996(2) SCC 384 , where it has been held as under:- “The courts cannot over-look the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged.” 9. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged.” 9. Further, it appears that the I.O. (P.W.11) had seized the birth certificate of the victim girl, which is exhibited in the court as Exhibit-M-1, vide seizure list, Exhibit-P-2, in presence of PW-4 -Remsangpuii and PW-5 Vanlalhruaii Ralte, who were the witness of seizure and testified to that effect. Perusal of the same reveals that date of birth of the victim is 25.07.2009. The medical evidence of the victim also reveals that her age was 6 years, but no x-ray was done for her age determination. In the FIR also it has been mentioned that her age was 6 years at the relevant point of time, and in her evidence also, the victim has deposed that she was 5 years old at the relevant time. The date of birth of the victim as reflected in the birth certificate, i.e. Exhibit M-1, reveals that at the material point of time she was below 18 years and as such the victim is a ‘child’ as defined in section 2(d) of the POCSO Act. It is to be mentioned here that the age of the victim is not disputed by the respondent side. 10. The evidence of the victim reveals that at the relevant time she was returning home from her school at Hlimen. Then, she has seen the accused in his house and he called her and asked to follow him inside his house and told her that he will give her some fruits. And accordingly, she followed him and she found no one inside the house. Then the accused forcefully pulled her and took her panty and licked her private part. And he also took out his penis and asked her to touch the same and while she refused, he caught hold of her hand and let her to touch his penis and he rubbed his penis around her private part. She then cried and asked him to let her go, and accordingly, he let her go and promised her to give ‘mama’ a local food, on the next day. She then cried and asked him to let her go, and accordingly, he let her go and promised her to give ‘mama’ a local food, on the next day. Coming out of his house she saw her friend near the house of the accused and she then cried and they enquired from her about the matter and then she told them what the accused did with her then, she along with her friend went to her home and narrated the incident to her mother. It is elicited in her cross-examination that the accused put his penis inside her private part. However, she denied deposing falsely in a Court. 11. It also appears that the I.O during investigation got the statement of the victim recorded in the Court under section 164 Cr.P.C. But, neither the prosecution nor the learned Court below had exhibited the same in the Court. However, a perusal of the same reveals that on a relevant date while she was returning home from school, the accused called him that he will give her some fruits and carried her in his arms inside his house and closed the door and no one was there and then he moved her underwear towards the side and inserted his finger into her private part. He licked it saying that he will lick it only two times. He tried inserting his penis inside her private part, but unable to do so and then she asked her to let him go and then the accused told her to come on the next date and he will provide mama noodles to her. Then she cried and proceeded home then some of her friends saw her and taken her to home and narrated her story to her grandmother. 12. Thus, apparently there appears to be some contradictions in the version of the victim. She testified before the court that the accused inserted his penis into her private part. But, she never testified about inserting his finger into her private part by the accused, where as she stated the same in her statement under section 164 Cr.P.C. In the statement under section 164 Cr.P.C. she had stated that the accused inserted his finger into her private part and that he tried to insert his penis into her private part but could not succeed. 13. 13. The victim had also not mentioned about inserting the finger and private part into her private part by the accused to her friend Ruatsangai, whom the prosecution side has examined as P.W.-6, and whom she met immediately after the occurrence. P.W.6 has testified that on 01.06.2016, after school hours, she along with her cousin Lalnunfeli went home and on their way, they stopped near the store of Anu Dingi and she noticed the accused walking with the victim towards them, and thereafter the victim came to her and she was crying. When asked as to why she was crying then, she told them that the accused taken her to his house and made her lie on a bench and touched her private part. She also stated to them that she asked the accused to let her go and the accused than again pinched her private part and then they told her to narrate the incident to her mother and thereafter they took her to her house and the child afraid of narrating the matter to her mother and then she saw her grandmother and reported it to her grandmother. Admittedly, she has not seen the accused touching the private part of the victim. 14. The evidence of the PW-1, who is the father of the victim and complainant of this case, reveals that on 01.06.2016, after finishing his work, while he went home, then his wife informed him that his daughter was sexually assaulted by the accused after the school hours. Then he called his daughter and enquired what has happened, then she told her that after the school hours, while she was returning home, she noticed the accused near his house, and he took her inside his house, and caressed her thigh and inserted his finger inside her vagina and take out his penis and made her touched it, and thereafter, the accused licked her private part and she also told him that while she was coming out from the house of the accused, she met her friend on her way and narrated the story to her. After hearing the incident he lodged the FIR Exhibit-P-1. Nothing tangible could be elicited in his cross-examination. He denied having demanded money from the accused. Thus, this witness also never testified about inserting the penis in to the private part of the victim by the accused. 15. After hearing the incident he lodged the FIR Exhibit-P-1. Nothing tangible could be elicited in his cross-examination. He denied having demanded money from the accused. Thus, this witness also never testified about inserting the penis in to the private part of the victim by the accused. 15. The evidence of PW-3, Shri Lalsawmliani reveals that he was informed by his mother that his granddaughter was sexually assaulted by some person and she is very weak and he reported the matter to his relative. On the next day morning, he went to the house of the victim and asked what has happened to her and that she told him that forcibly caught hold of her and take her inside his house and made her lie down on a long chair and tried to insert his penis into her private part and she felt pain and she was crying and she also told him that the accused licked her private part and also poked her private part. Admittedly, he was not present at the time of alleged occurrence. Thus, this witness also never testified about either inserting of finger or penis in to the private part of the victim. 16. The evidence of PW-7 V.L Siami reveals that on 01.06.2016, her granddaughter came home along with her friend (victim) Ruatsangi and another person and then Ruatsangi stated to her that his granddaughter was sexually assaulted by the accused and then they asked the victim about the incident, but, she kept on crying and did not say to anything to them. On the next day, when she refused to go to school then, on being asked she told that the accused had touch her private part. Admittedly, this witness has not seen the occurrence. Thus, this witness also never deposed about inserting either finger or penis in the private of the victim by the accused. 17. Thus, it appears from the evidence of the victim that the accused had touched her private part and the same finds support from the evidence of other prosecution witnesses, specially from the evidence of P.W. 6, 7, 1 and 3, who have heard about the occurrence from the victim, immediately after the occurrence and also after sometime. Her evidence also reveals that the accused made her to touch his private part. Her evidence also reveals that the accused made her to touch his private part. But, there is no consistency in her version about inserting the finger and also penis by the accused into her private part. And the medical evidence also has not supporting the same. The evidence of Dr. Lalbiakdiki, whom the prosecution side had examined as PW-8, testified that on 02.06.2016, he examined the victim girl and found the victim years old and also found her physically and mentally healthy and there was no mark of violence on her body. On her genital examination she found there was no bruised or laceration of external genitalia and her hymen was intact and she confirmed his report Exb.P-3. Perusal of the same is also found to be consistent with his version. 18. The prosecution side, thus, succeeded in establishing beyond doubt that the accused had touched/licked private part of the victim and also compelled her to touch his penis. But, it has failed to establish beyond all reasonable doubt that the accused had committed penetrative sexual assault upon the victim. Her evidence is irreconcilably in conflict with her own version and also with the version of other witnesses as regard penetrative sexual assault and the medical evidence also lends no support to the same. And the learned counsel for the respondent/accused has rightly pointed this out and submits that the evidence of the victim is not of sterling quality. 19. It is to be mentioned here that what sterling witness means, is clarified in the case of Rai Sandep vs. State (NCT of Delhi), reported in (2012) 8 SCC 21 , wherein it was stated that sterling witness should be of a very high quality and caliber whose version should, therefore be unassailable. The Court considering the version of such witness should be in a position to accept it for each face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement by such a witness. What would be more relevant would be the consistency of a statement right from the starting point till end, namely at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution were the accused. What would be more relevant would be the consistency of a statement right from the starting point till end, namely at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution were the accused. There should not be any pre-verification in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever, strenuous it may be an under no circumstances should give a room for any doubt as to the factum of the occurrence, the persons involved, as to the sequence of it. This being legal and factual position, the submission of the learned counsel for the appellant, in respect of penetrative sexual assault upon the victim, left this Court unimpressed and ratio laid down in the case of Bhupen Kalita (supra), would not help her. 20. There is no doubt that as submitted by a learned counsel for the appellant that the victim girl is below 12 years and as such the sexual assault so committed upon her would come under the provision of section 9 (m) of the POCSO Act, which is punishable under section 10 of the said Act and the same prescribed punishment for not less than 5 years, but, which may extend to 7 years and also liable to fine. Yet, as submitted at the bar that the accused had already served out the sentence and already released from jail. Thus, as submitted by learned counsel from the respondent, this Court is of the view that sending him to jail again to serve another 2 years term, as provided under section 10 of the POCSO Act, is uncalled for and unwarranted here in this case. 21. The learned Court below, to the consider opinion of this court had rightly convicted the accused under section 8 of the POCSO Act and sentence him to suffer rigorous imprisonment for 3 years and also to pay a fine of Rs. 1000/-with default stipulation. Keeping the principles of criminal jurisprudence in mind, this Court is of the view that the same warrants no interference of this Court. 22. In the result, I find no merit in this appeal and accordingly, the same dismissed. The LCR be returned forthwith. The registry shall pay the remuneration to the learned Amicus Curie as per rule. Keeping the principles of criminal jurisprudence in mind, this Court is of the view that the same warrants no interference of this Court. 22. In the result, I find no merit in this appeal and accordingly, the same dismissed. The LCR be returned forthwith. The registry shall pay the remuneration to the learned Amicus Curie as per rule. The parties have to bear their own cost.