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2022 DIGILAW 1173 (GAU)

Chitti Kala Chakma v. State of Mizoram

2022-10-25

MARLI VANKUNG

body2022
JUDGMENT : Heard Mr. T. Lalzekima, learned Amicus Curiae for the appellant alongwith Mr. C. Zoramchhana, learned Public Prosecutor for the State. 2. This is an appeal against the Judgment and Order dated 24.05.2019 passed by the Judge, Special Court under POCSO Act, Lunglei Judicial District, Lunglei in Criminal Trial No. 264 of 2017, convicting the accused appellant under Section 6 of the POCSO Act, and against the Sentence Order dated 07.06.2019, whereby the accused appellant was sentenced to undergo R.I 10 years and pay a fine of Rs. 1000/-in default, S.I for one week. 3. The case of the prosecution in brief is that a written FIR was received at the Police Station on 2.10.2016 from one Amalya Ratan Chakma, S/o Krishna Chandro Chakma, of Karlui-II, stating that his 15-year-old daughter, X, had been raped by three persons, namely, (i) Chitti Kala Chakma, S/o Purna Kumar Chakma, and (ii) Y(Juvenile), S/o Kandara Chakma, (iii) Z, the 15-year-old juvenile son of Amakar Chakma, all of Karlui-II, at around 10:00 pm. on 23.9.2016 in the jungles near the wet rice cultivation of one Sudan Muni Chakma. The informant stated that he had been to Kamalanagar for some work and there was accordingly some delay in filing the FIR at Vasei police Station. On receiving the FIR, a Vasei P.S. Case No. 2/2016 dated 2.10.2016 under Section 376D of the Indian Penal Code read with Section 4 of the Protection of Children from Sexual Offences Act, 2012, was accordingly registered and investigated into. The accused appellant and co-accused were then arrested. As the third accused, Z, was a juvenile, he was apprehended and forwarded to the Principal Magistrate, Juvenile Justice Board, Lawngtlai. All the witnesses, including the alleged victim, the accused and the juvenile were examined. X's birth certificate showed that she was born on 3.12.2002. The alleged victim was forwarded to Court and her statement was recorded by the Chief Judicial Magistrate, Lawngtlai. She was sent for a medical examination which showed that there were old tears in her hymen. Chitti Kala Chakma was also sent for a medical examination and it was found that he was physically and mentally healthy and his genital organs were fully developed. She was sent for a medical examination which showed that there were old tears in her hymen. Chitti Kala Chakma was also sent for a medical examination and it was found that he was physically and mentally healthy and his genital organs were fully developed. From the investigation, it was established that a prima facie case under Section 6 of the POCSO Act was well-found against the accused, X and Chitti Kala Chakma, and also against the juvenile, Z and charge sheet was accordingly submitted for trial of the accused/ appellant under Section 6 of the POCSO Act. The accused/appellant Chitti Kala Chakma, was released on bail on 01.11.2016. The Chargesheet included a list of nine witnesses on whom the prosecution proposed to rely. Among the documents forwarded were the pretrial statement of the alleged victim recorded on 4.10.2016 under Section 164 CrPC and under Section 25 of the POCSO Act by Mr. LaldinpuiaTlau, Chief Judicial Magistrate, Lawngtlai, and the medical examination report of the alleged victim and the accused. The co-accused X was also found to be a Juveniles and his matter was also referred to JJB. The learned Trial Court framed charge against the accused appellant, Chitti Kala Chakma, on 2.11.2017 under Section 6 of the Protection of Children from Sexual Offences Act, 2012. The accused appellant denied the charge and claimed to be tried. Seven of the nine witnesses listed for the prosecution appeared and deposed. One of their witnesses, PW-4, who had statedly accompanied the victim prosecutor to the place where the alleged assault occurred, turned hostile and thereafter appeared as a witness for the defence. 4. On hearing both the parties, the learned Judge, Special Court under POCSO Act passed the impugned Judgment & Order dated 24.05.2019 covicting the appellant under section 6 POCSO Act and the sentence Order dated 07.05.2019 sentencing the accused to undergo R.I 10 years and pay a fine of Rs. 1000/-in default, SI for one week, hence, this jail appeal by the convict/appellant. 5. Mr. T. Lalzekima, learned Amicus Curiae submits that the Judgment dated 24.05.2019 should be squashed and set aside for the following grounds:- 1) There was a delay in the submission of the FIR. 2) The incident is said to have occurred on 23.09.2016 while the FIR was submitted on 02.10.2016. No reasonable explanation was given for the delay. 5. Mr. T. Lalzekima, learned Amicus Curiae submits that the Judgment dated 24.05.2019 should be squashed and set aside for the following grounds:- 1) There was a delay in the submission of the FIR. 2) The incident is said to have occurred on 23.09.2016 while the FIR was submitted on 02.10.2016. No reasonable explanation was given for the delay. Even after the return of the complainant from Chawngte, the complainant did not submit the FIR immediately. The learned counsel has relied on the Judgment of the Apex Court in the case of Mukesh & Another Vs. State (NCT of Delhi) & Others reported in (2017) 6 SCC 1 . 3)The learned Amicus Curiae also points out that the case I.O did not seize any of the materials like the Mobile Phone used by the victim and nor was her clothes worn on that day seized. The case I.O who submitted the chargesheet and deposed as PW9 did not apply his mind at the time of submission of his chargesheet and did not visit the place of occurrence and he had submitted the chargesheet based only on examination of the medical report which can be seen from his cross examination. 4) Further, the Medical Report does not support the testimony of the victim girl, wherein the Medical Officer who examined the girl has clearly stated that the hymen was absent and that the age of the injury of the hymen cannot be determined after 48 hours. There is no prove regarding the virginity of the victim girl before the alleged incident and thus the Medical Report and the testimony of the Medical Officer cannot be relied upon. There were eye witnesses present however none of the eye witnesses were examined in this case. The appellant was charged under Section 6 of the POCSO Act, for violation of Section 5 (g) of the POCSO Act, wherein a common intention has to be proved if it is a gang rape. In support of his submission, he has relied upon the cases of (i) Mrinal Das & Others Vs. State of Tripura, (2011) 9 SCC 479 , (ii) Shyamal Ghosh Vs. State of West Bengal, (2012) 7 SCC 646 , (iii)Rajiv Singh Vs. State of Bihar & Another, (2015) 16 SCC 369 and (iv)State of Uttar Pradesh Vs. Wasif Haider & Others, (2019) 2 SCC 303 . 6. The learned Public Prosecutor, Mr. State of Tripura, (2011) 9 SCC 479 , (ii) Shyamal Ghosh Vs. State of West Bengal, (2012) 7 SCC 646 , (iii)Rajiv Singh Vs. State of Bihar & Another, (2015) 16 SCC 369 and (iv)State of Uttar Pradesh Vs. Wasif Haider & Others, (2019) 2 SCC 303 . 6. The learned Public Prosecutor, Mr. C. Zoramchhana, on the other hand submits that the delay in submitting the FIR has been sufficiently explained, which can be seen from the statement of the complainant, that he had gone to Chawngte for the treatment of his two other children and while he was at Chawngte, he was informed the incident by his wife wherein he had asked his wife to report the matter to the local V.C., however, the local V.C. had awaited for his return and the wife being ignorant and illiterate did not do the needful. On his return from Chawngte, he had immediately taken the necessary steps and filed the FIR. Therefore, the delay has been sufficiently explained. In support of his case, he has relied upon the Judgment of the Hon’ble Supreme Court in the case of Ganesan Vs. State reported in (2020) 10 SCC 573 . 7. The learned Public Prosecutor also submits that regarding the Medical Report wherein the hymen was absent, the Medical Officer himself has explained that after lapsed of 48 hours, the age of the injury to the hymen cannot be explained. In the instant case, the incident had occurred on 23.09.2016 and she was produced for medical examination on 04.10.2016 after the return of her father from Chawngte and submitted the FIR. There is also no law that say that certain articles should be seized to prove the case. Seizure of article depends on the necessity as decided by the case I.O. 8. The learned Public Prosecutor further submits that the sole testimony of the victim girl established itself to convict the accused/appellant. The judicial statement recorded under Section 164 CrPC support her deposition made before the Court and thus, the sole testimony of the victim girl can be relied upon. That the testimony of the girl was not shaken during her cross examination and that there was no reason to doubt the truthfulness of her testimony. In support of his submission, the learned Public Prosecutor has cited in the case of State of Himachal Pradesh Vs. That the testimony of the girl was not shaken during her cross examination and that there was no reason to doubt the truthfulness of her testimony. In support of his submission, the learned Public Prosecutor has cited in the case of State of Himachal Pradesh Vs. Sanjay Kumar reported in (2017) 2 SCC 51 and in the case of State of Uttar Pradesh Vs. ChhoteyLal, (2011) 2 SCC 550 , wherein the Apex Court observed that in the present society, no women will come forward to make such a false allegation. He further submits that there is no motive for the victim girl to falsely implicate the appellant. 9. Having heard the submissions made by the learned counsels for both the parties, the case records with all the connected documents have carefully perused. This Court finds it fit to examine the evidence recorded by the learned Trial Court. 10. PW1 is the father of the victim girl and the complainant, who had deposed that during the end of September, 2016, he had gone to Chawngte for the Medical Check-up/treatment of his two children and while at Chawngte, he received information over Mobile Phone from his wife, who reported that their daughter was raped by the three miscreants. He informed his wife to report the matter to the local V.C and that he would take necessary steps on his return. After about 9 days when he reached home, he was informed that the local V.C. had not taken any steps and had awaited for his return. He immediately approached the Police at Vaseitlang PS and reported the matter. Nothing was asked during cross examination of the PW1 to discredit the statement. 11. PW2 is the wife of PW1 and her deposition supports/corroborates the statement of PW1, where he had deposed that on the night of the alleged incident, their daughter/victim girl had left their house at around 8.30 pm to enquire from her husband/PW1 regarding the welfare of their two ailing children. When their daughter/ victim girl return home at around 11 – 12 pm, she was in tears and informed her that three known persons had assaulted and raped her. She reported that the accused had raped her while the other two persons were bystanders. PW2 stated that she immediately informed the local V.C. as advised by her husband. 12. When their daughter/ victim girl return home at around 11 – 12 pm, she was in tears and informed her that three known persons had assaulted and raped her. She reported that the accused had raped her while the other two persons were bystanders. PW2 stated that she immediately informed the local V.C. as advised by her husband. 12. Law is firmly settled that delay in lodging FIR would not make the prosecution case improbable if the delay is properly explained. On perused of the evidence given by PW1 and PW2, I find that the reason for delay in filing the FIR wherein the incident was said to have occurred on 23.09.2016 and FIR was filed on 02.10.2016 has been sufficiently explained. 13. PW3 is the victim girl. In order to appreciate her evidence against the appellant, it would be gainful to abstract the deposition of the prosecutrix herself, particularly when there is no witness to the alleged crime: “On S/A I know the accused who is present in the court today (the accused is instructed to leave the premises of the court room). I was born on 03.12.2002. I am studying in Class-VII. I do not remember the exact date but it was sometime during the month of September, 2016. My mother had sent me to contact my father who was at Chawngte for medical treatment of my siblings. I proceeded along with my friend Nina to the place where network is available. When we reached this area the accused and two of his friends who were quietly following us suddenly grabbed hold of me. Fearing that the friend would be also assaulted she ran away. The accused and his two companions dragged me down about 200 metres to the paddy field. One of the companion grabbed me from behind and closed my mouth with a piece of cloth. He was Shanti Mohan. The other companion grabbed me by my legs. His name is Jotonomoy Chakma. Thereafter, the accused Chitti Kala Chakma raped me forcibly. After the accused raped me I shouted out and the accused and his two companions ran away. Thereafter, I proceeded home and I was in tears and also shouted out hysterically. When I arrived home my mother was present and I reported the matter to her. She informed the local V.C. members. They did not come immediately to our residence. After the accused raped me I shouted out and the accused and his two companions ran away. Thereafter, I proceeded home and I was in tears and also shouted out hysterically. When I arrived home my mother was present and I reported the matter to her. She informed the local V.C. members. They did not come immediately to our residence. I arrived home at about 11-12 Pm. After my father returned back I was taken to Lawngtlai District Hospital for medical examination. M.Ext-I is Xerox copy of my birth certificate. XXX by D/L: 1. It is a fact that it was dark during the time of incident and I was carrying torch light. 2. It is a fact that there was moonlight on the night of alleged incident. 3. It is a fact that there were three persons involved in the alleged incident. 4. It is a fact that my wearing apparels were not torn. 5. It is a fact that I did not sustain any external injury. 6. It is a fact that period of about 2 and half hours lapse between the accused grabbing me and my escaping him after the alleged incident. 7. It is a fact that the police did not seize my wearing apparel. 8. It is a fact that the police recorded my statement. 9. It is a fact that I made statement before magistrate. 10. It is not a fact that I did not recognize the accused. 11. It is a fact that I had lost consciousness for some time. 12. It is a fact that I distinctly recognize the person who raped me since he was familier to me from earlier. 13. It is a fact that I do not recollect the wearing apparel of the accused. 14. It is a fact that I do not recollect the number of days between the alleged incident and medical examination. 15. It is a fact that there were no other persons present during the time of alleged incident. 16. It is not a fact that I am deposing falsely.” On perusal of the cross examination of PW3, it is found that her statement regarding the incident has not been shaken or discredited. 14. PW6 is the case I.O, who initially investigated into the case. The case I.O visited the place of occurrence, examined the witnesses and the accused persons were under arrest. 14. PW6 is the case I.O, who initially investigated into the case. The case I.O visited the place of occurrence, examined the witnesses and the accused persons were under arrest. One of the accused was a minor and sent to JJB. The Birth Certificate of the minor produced at the time of investigation showed that she was a minor. The Birth Certificate was also produced and exhibited as M-Exhibit-1 in the Court. The date of birth of the victim proseutrix stated to be 03.12.2002 was not rebutted during trial and therefore taken to be correct. 15. PW7 is the Medical Doctor, who examined the victim on 04.10.2016. She had deposed that there were no fresh bruises laceration on the external genitilia. However, on examination of the hymen, she found old tear of 9 o’clock, 1 o’clock and 6 o’clock position. She has also explained that after lapse of 48 hours, the age of injury to the hymen cannot be determined. Exhibit P3 is the Medical Examination Report submitted by her. On cross examination, she admitted that the hymen is torn due to other reasons other than sexual intercourse and that there are no sign of spermatozoa. 16. PW9 is the case I.O, who submitted the charge sheet. He has stated that he was transferred to Vasei PS when the investigation in the instant case was already done by his predecessor, S.I. Devaraj Chakma and that on examination of all the materials evidence, he found prima facie case under Section 6 of the POCSO Act against two accused persons, the appellant and Shanti Mohan Chakma. On cross examination, he admitted that no materials seizure was made in connection with the offence and that he perused the medical report only and that he did not visit the place of occurrence. 17. On examination of the accused/appellant under Section 313 CrPC, the accused/appellant denied having committed any offence against the victim prosecutrix but stated that on the fateful day the victim and her companion shone the torch at their eyes purposely three times. On rebuking the victim she again shone the torch after which he snatched the torch from her hands and that they did not commit any offence. 18. The accused/ appellant had one defence witness who is the girl who was said to have accompanying the victim girl on the night of the incident. On rebuking the victim she again shone the torch after which he snatched the torch from her hands and that they did not commit any offence. 18. The accused/ appellant had one defence witness who is the girl who was said to have accompanying the victim girl on the night of the incident. She has stated that after meeting the three miscreants, she and the victim prosecutrix returned home. On cross examination, she has however admitted that a statement was recorded during investigation and that the victim prosecutrix had spoken over phone to someone who was at Chawngte. 19. The Court finds that DW1 has not explained the reason why she had retracted from her statement recorded during investigation, further, her narration differs from the explanation given by the accused on his examination under section 313 Cr.P.C, thus this court finds that the statement of DW1 cannot be relied upon. 20. I also find that since both the co-accused in the incident are found to be juveniles the plea of the learned Amicus Curiae that common intention need to be proved in this case is not convincing since the accused/appellant is the main and only accused stated to have committed the offence of rape against the victim/prosecutrix. 21. On analyzing the evidence available on record, this Court finds that the deposition of the victim prosecutrix does not divert from her statement recorded under Section 164 CrPC, which has been included in the charge sheet. Nothing has been specifically pointed out why the sole testimony of the prosecutrix should not be believed. Even after thorough cross-examination, she has stood by what she has stated and has fully supported the case of the prosecution. 22. The chain of events is also corroborated by the deposition of the PW2, mother of the victim prosecutrix who stated that on the night of the incident, the victim girl had informed her that she was raped by the accused/appellant. It is seen that the medical examination of the victim prosecutrix was done after almost 10 days of the alleged incident therefore it is not possible that spermatozoa could be found in the medical examination after a lapse of almost 10 days of the incident. However, it is not disputed that her hymen is torn at 9 o’clock, 1 o’clock and 6 o’clock position. 23. However, it is not disputed that her hymen is torn at 9 o’clock, 1 o’clock and 6 o’clock position. 23. I find no substance in the submission of the learned amicus curie that the virginity of the victim prosecutrix was not proved before the incident since there is no evidence to indicate any promiscuous in her sexual behaviour earlier. 24. The Apex Court in a catena of its Judgments has held as in the case of State Of Himachal Pradesh vs Sanjay Kumar Alias Sunny (supra) as follows: “31.…….. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime.Why should the evidence of thegirl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance.” 25. In the case of Ganesan Vs. State, (2020) 10 SCC 573 , the Apex Court relied upon another judgment of the Apex Court, i.e. Rai Sandeep Vs. State (NCT of Delhi), (2012) 8 SCC 21 , wherein “sterling witness” was explained. The plea about lack of corroboration has no substance.” 25. In the case of Ganesan Vs. State, (2020) 10 SCC 573 , the Apex Court relied upon another judgment of the Apex Court, i.e. Rai Sandeep Vs. State (NCT of Delhi), (2012) 8 SCC 21 , wherein “sterling witness” was explained. It was explained that a “sterling witness” should be of a very high quality and calibre whose version should be unassailable. The Apex Court held that the version/testimony of such witness should be in a position to accept it for its face value without hesitation. It also held that there should be consistency in the statement of the witness from the starting point till the end. It further held that the version of the “sterling witness” on the core spectrum of the crime should remain intact. 26. 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 this Court as such, conviction can be based only on the solitary evidence of the prosecutrix and corroboration would be required, unless there are compelling reasons which necessitate the court for corroboration of her statement. It further held that 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. 27. The Apex Court in the case of Aman Kumar & Another -vs-State of Haryana reported in (2004) 4 SCC 379 held that it was a settled principal of law that the prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence of rape. 28. 27. The Apex Court in the case of Aman Kumar & Another -vs-State of Haryana reported in (2004) 4 SCC 379 held that it was a settled principal of law that the prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence of rape. 28. In view of the above observations of the Apex court and upon an overall appreciation of the evidence led by the prosecution which include the statement of the PW3/prosecutrix, the statement of the victim prosecutrix recorded under Section 164 CrPC, PW1/Complainant, PW2/mother of the victim to whom the victim prosecutrix first informed of the incident and PW 7, the doctor on medical examination found the hymen of the victim, I am of the considered view that there is no reason to doubt her testimony as it inspires confidence and thus find no infirmity with the Judgment & Order dated 24.05.2019 passed by the Judge, Special Court under POCSO Act, Lunglei Judicial District, Lunglei in Criminal Trial No. 264 of 2017, convicting the accused appellant under Section 6 of the POCSO Act and the Sentence Order dated 07.06.2019. 29. The appeal is accordingly dismissed and Crl. A. No. 7 of 2020(J) stands disposed. Send back the LCR. 30. In appreciation of the assistance provided by the learned his fee is fixed at Rs. 7500/-(Rupees Seven thousand five hundred) only, to be paid by the Mizoram State Legal Services Authority.