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2022 DIGILAW 1178 (GAU)

P. Thangbuaia v. State Of Mizoram

2022-10-26

ROBIN PHUKAN

body2022
JUDGMENT : Heard Mr. C. Tlanthianghlima, learned counsel appearing for the appellant. Also heard Mrs. Linda L. Fambawl, learned Addl. P.P., Mizoram, representing the State respondent. 2. This appeal is directed against the judgment and order dated 05.07.2022, passed by the learned Special Judge, Fast Track Special Court (Rape & POCSO Act) in SC No.22/2022 (Ref: Crl. Trl. No.380/2020), Mizoram, Aizawl. It is to be mentioned here that vide impugned judgment and order, dated 05.07.2022, the learned Court below has convicted the appellant -Sh. P. Thangbuaia, under Section 10 of the POCSO Act, and sentenced him to suffer rigorous imprisonment for a period of 5 years and also to pay a fine of Rs.3,000/-, with default stipulation. 3. The factual background, leading to filing of the present appeal, is adumbrated herein below:- “On 19.08.2019, one Sh. R. Lalramnghaka, resident of Ramthar Galili Veng, Aizawl, lodged one FIR with the Officer-in-Charge of Aizawl P.S., to the effect that on 19.08.2019, one Sh. P. Thangbuaia, resident of Ramthar Galili Veng, Aizawl had sexually assaulted his son Sri “X” (name withheld), who is a 13 years old boy, by calling him to his house and touched his penis, since the time he was 5 years old, and he also made his son to touch his (appellant’s) penis and rub his penis against his son’s anus, and he used to give money to his son and warned him not to disclose anything and he did such things not less than ten times. Upon the said FIR, the Officer-in-Charge of Aizawl P.S., registered a case, being Aizawl P.S. Case No.361/2019, under Section 10 of the POCSO Act and got the same investigated. During investigation, the I.O. had visited the place of occurrence, examined the witnesses and got the victim examined by Doctor and also got his statement, under Section 164 Cr.P.C., recorded in the Court. Then he had arrested the appellant and forwarded him to the Court and on completion of investigation, he laid charge sheet against the appellant, to stand the trial in Court, under Section 10 of the POCSO Act. Thereafter, the appellant was produced before the First Track Special Court (Rape & POCSO Act). Then he had arrested the appellant and forwarded him to the Court and on completion of investigation, he laid charge sheet against the appellant, to stand the trial in Court, under Section 10 of the POCSO Act. Thereafter, the appellant was produced before the First Track Special Court (Rape & POCSO Act). Then the learned Court below, after complying with the provision of Section 207 Cr.P.C. and after hearing learned Advocates of both sides, had framed charge against the appellant under Section 10 of the POCSO Act and on being read over and explained over, the appellant pleaded not guilty to the same. Thereafter, the learned Court below had examined as many as seven witnesses, including the Medical Officer and the Investigating Officer and thereafter, closing the prosecution evidence, the Court below had examined the appellant under Section 313 of the Cr. P.C. and also examined one witness adduced by the appellant in support of his defence. Thereafter, hearing arguments of both sides, the learned court below has convicted the appellant under Section 10 of the POCSO Act and sentenced him, as aforesaid. 4. Being highly aggrieved, the appellant preferred this appeal challenging his conviction and sentence and to set aside the same on the following grounds:- (i) That, the learned Court below had erred in law and facts, in passing the judgment and order dated 05.07.2022; (ii) That, the learned Court below had passed the sentence upon the appellant on the same day, when the conviction order was passed which is against the provision of Section 235(2) of the Cr.P.C. and the law laid down by the Hon’ble Supreme Court in the case of Allauddin Mian & Ors. Sharif Mian & Anr. Sharif Mian & Anr. vs. State of Bihar, reported in (1989) 3 SCC 5 ; (iii) That, the learned Court below had arrived at the finding that the victim is a minor child at the relevant time, based on the deposition of PW.1, PW.3 and PW.4 but none of them has produced the original birth certificate of the victim, for comparison before the Court and concluded that the age of the victim, at the relevant point of time was below 12 year; (iv) That, the learned Court below had failed to consider the fact that the complainant came to know about the occurrence from the teacher of the victim on 18.09.2019, but, the said teacher has not been examined as a witness, here in this case; (v) That, the learned trial Court had relied upon the sole testimony of the victim, for convicting the appellant, but, the evidence of the victim is not of sterling quality and there is inconsistency in his evidence before the Court and also under Section 164 of the Cr.P.C., for which his evidence cannot be relied upon to convict the appellant; (vi) That, the learned Court below had failed to appreciate the evidence in its proper perspective and arrived at a erroneous finding; (vii) That, the learned Court below had failed to consider the evidence of defence witness (DW-1), examined by the appellant; (viii) That, the medical evidence did not support the prosecution version; 5. Mr. C. Tlanthianghlima, learned counsel for the appellant, firstly, submits that the learned Court below has failed to comply with the provision of Section 235(2) of the CrPC and also the mandate of law, laid down by the Hon’ble Supreme Court in the case of Allauddin Mian & Ors.(supra). Secondly, the learned counsel for the appellant submits that the learned Court below has held that the age of the victim was below 12 years, but, to establish the same, the original birth certificate of the victim was not produce before the Court. Thirdly, it is submitted by that the father of the victim lodged the FIR, on the basis of the information received from the teacher of the victim, but, the said teacher has not been examined as a witness. Thirdly, it is submitted by that the father of the victim lodged the FIR, on the basis of the information received from the teacher of the victim, but, the said teacher has not been examined as a witness. Fourthly, it is pointed out that there is inconsistency in the statement of the victim, recorded under Section 164 Cr.P.C. with his evidence before the learned Court below and his evidence is not of sterling quality, so as to record conviction of the appellant solely on the basis of his testimony. Fifthly, it is submitted that there is no mention of date, time and number of occasions, the victim was subjected to sexual harassment by the appellant. And lastly, it is submitted that there is delay of seven years in filing the FIR, without any explanation for the delay and therefore, it is contended to allow the appeal, as the prosecution side has failed to bring home the charge against the appellant, beyond all reasonable doubt. 6. The learned counsel for the appellant also referred the following case laws, in support of his submissions:- (1) Harijana Thirupala & ors. vs. Public Prosecutor, High Court of Andhra Pradesh, reported in (2002) 6 SCC 470 . (2) Ganesan vs. State represented by its Inspector of Police, reported in (2020) 10 SCC 573 , (3) Criminal Appeal No.12 of 2016 (Jail) and (4) Jiten Borah vs. Union of India and ors., reported in 2012 (5) GLT 347. 7. Per contra, Mrs. Linda L. Fambawl, learned Addl. P.P., Mizoram appearing for the State respondent submits that the learned Court below had rightly convicted the appellant under Section 10 of the POCSO Act. Mrs. Fambawl further submits that the learned Court below had complied with the provision of Section 235(2) Cr.P.C. and the case law, referred by the learned counsel for the appellant i.e. Allauddin Mian & Ors. (supra). Mrs. Fambawl further submits that the learned Court below had complied with the provision of Section 235(2) Cr.P.C. and the case law, referred by the learned counsel for the appellant i.e. Allauddin Mian & Ors. (supra). is of two Judge Bench decision and later on, in the case of Vasanta Sampat Dupare vs. State of Maharashtra, reported in (2017) 6 SCC 631 , a three Judge Bench the Hon’ble Supreme Court has held that hearing on the point of sentence under Section 235(2) Cr.P.C. is not mandatorily to be done on a separate date after conviction, though generally and normally, it should be so, and that now it is not mandated to fix a separate for hearing on the point of sentence, which depends upon the facts and circumstances, as to whether separate date is required for hearing on sentence or parties feel convenient to argue on sentence on the same day. Mrs. Fambawl further submits that though the original birth certificate of the victim was not produced before the learned Court below, yet, genuineness of the certificate, exhibited in the court was not disputed which shows that the victim has not completed 18 years, on the date of occurrence and as such, he is a ‘child’ as defined under Section 2(d) of the POCSO Act. Mrs. Fambawl further submits that there is no delay in lodging the FIR, as it was a continuing offence and that non-examination of the teacher of the victim caused no dent to the prosecution version and that the learned Court below had imposed minimum sentence only, and as such, Mrs. Fambawl contended to upheld the conviction and sentence of the appellant. 8. Having heard the submission of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also perused the record of the learned Court below. 9. That, as to the date, time and place of occurrence, it appears from the record of learned court below that the same took place in the house of the appellant at Ramthar Galili Veng, Aizawl. But, the actual dates and time of occurrence could not be ascertained from the record of the learned court below. It is deposed by the complainant (P.W.1) that the occurrence continued since 5 years of age of the victim. But, the actual dates and time of occurrence could not be ascertained from the record of the learned court below. It is deposed by the complainant (P.W.1) that the occurrence continued since 5 years of age of the victim. It is, however, evident from the deposition of P.W.1 that the victim was 13 years old as on 19.08.2019, on which the FIR was lodged. The victim, P.W.2 also testified that it was continuing since the time of his attaining five years, till last year. It is to be mentioned here that the victim had deposed before the court on 20.11.2020. That being so, the occurrence continued till 2019. It is to be noted here that the place of occurrence, year of occurrence has not been disputed by the appellant. 10. It is also to be noted here that to attract the culpability of any of the offences under the POCSO Act, the first condition, which is required to be satisfied is that the victim must be a ‘child’ as defined in the section 2(d) of the POCSO Act. Section 2(d) of the POCSO Act defined ‘child’ as any person who has not completed 18 years of age. Here in this case, the victim testified that his date of birth is 04.05.2007. His father (P.W.1) also categorically stated that the victim was born on 04.05.2007. The FIR, Exbt.P1, is also consistent with his version in this regard. There is no cross-examination of PW.1 and PW.2 on this point. It is also evident from the deposition of P.W.1 that he had produced the original birth certificate of the victim before the I.O. at the Police Station and the I.O. then prepared one photo state copy of the same, Exbt.M1, and seized the same preparing seizure list Exbt.P2. The I.O., whom the prosecution side had examined as P.W. 7, also supported the same. PW.3 Rinsangpuia and PW.4 Laltiansangi are the witnesses of seizure. They confirmed seizure of birth certificate of the victim vide Exbt.P2 by police and also confirmed Exbt.M-1, before the Court. Cross-examination of these witnesses also could elicit nothing tangible to discredit their version. However, they admitted having not brought the original birth certificate to the court at the time of their deposition. But, the Xerox copy of the birth certificate is exhibited in the court as Exbt.M1 without any objection from the appellant’s side. Cross-examination of these witnesses also could elicit nothing tangible to discredit their version. However, they admitted having not brought the original birth certificate to the court at the time of their deposition. But, the Xerox copy of the birth certificate is exhibited in the court as Exbt.M1 without any objection from the appellant’s side. Perusal of the same reveals that the date of birth of the victim is 04.05.2007. Besides, the evidence of the victim and his father that the date of birth of the victim is 04.05.2007, remained undisputed in their cross-examination. And the evidence of the Doctor, P.W. 5 also reveals that he had examined the victim on 19.08.2019, and on that date the age of the victim was 13 years, factum of which had never been disputed by the appellant. Thus, the evidence of the victim and his father goes a long way to establish beyond all reasonable doubt that at the material time of occurrence, the age of the victim was below 18 years and as such, he was a ‘child’ as defined in Section 2(d) of the POCSO Act. The submission of the learned counsel for the appellant received due consideration of this court. But, in view of above discussion and finding the submission left this court unimpressed. 11. It also appears that the appellant was charged under section 10 of the POCSO Act for commission of the offence of ‘aggravated sexual assault’, under section 9(m) of the POCSO Act. Section 9 of the POCSO Act defined ‘aggravated sexual assault’ and Section 9(m) provides that whoever commits ‘sexual assault’ on a child below 12 years is a form of ‘aggravated sexual assault’. Now, what left to be seen is whether at the relevant time of commission of the offence the victim was below 12 years. 12. As discussed herein above, the actual dates and time of occurrence could not be ascertained from the record of the learned court below. As testified by the victim and his father it was continuing since the age of five years of the victim. And the last such incident of assault, as per the victim, took place in the last year, i.e. 2019, and at that time the victim was 12 years old, since at that time of deposition in the Court on 20.11.2020, he was 13 years old. And the last such incident of assault, as per the victim, took place in the last year, i.e. 2019, and at that time the victim was 12 years old, since at that time of deposition in the Court on 20.11.2020, he was 13 years old. Therefore, it cannot be said with certainty that in the year 2019, he was below 12 years. Admittedly, his date of birth is 04.05.2007, and admittedly also the victim has not remembered all those things that took place when he was five years old. In the given facts and circumstances on the record, and also in view of the fact that it cannot be said with absolute certainty as to on which dates the occurrence took place, it would be quite unsafe to hold that the victim was below 12 years of age at the material time of occurrence. Therefore, the appellant is entitled to benefit of the same in view of the principles of criminal jurisprudence. 13. However, as discussed in the foregoing paragraphs, it is established that the victim has not completed 18 years and as such, he was a ‘child’ as defined in Section 2(d) of the POCSO Act, at the material time and the prosecution side has succeeded in establishing the same. 14. Admittedly, there is no eye witness to the occurrence herein this case, except however, the victim. His father (P.W.1) came to know about the same from the victim. Thus, the victim is the sheet anchor of the prosecution case. His evidence reveals that reveals that accused P. Thangbuaia is his neighbour and while he was five years old, Thangbuaia used to touch his penis. He used to call him to his house and after removing his pent, he used to touch his penis and continue the same till last year. He used to give money to him, sometime Rs.50/-and sometime Rs.100/-. Then his father becomes suspicious as to how he gets the money and asked him about the same and then he disclosed everything. His evidence also reveals that after filing of report to police, he was questioned by the Magistrate and also he was examined at Civil Hospital, Aizawl. Cross-examination of this witness also could elicit nothing tangible to discredit his version. He denied the defence suggestion that the accused never touched his penis. His evidence also reveals that after filing of report to police, he was questioned by the Magistrate and also he was examined at Civil Hospital, Aizawl. Cross-examination of this witness also could elicit nothing tangible to discredit his version. He denied the defence suggestion that the accused never touched his penis. However, he admitted that he has not remembered all the things, which happened when he was five years old. Thus, it appears from the evidence of the victim that appellant used to call him to his house and used to touch his penis removing his pent and also he used to give him money. 15. The evidence of the victim finds corroboration from his statement under section 164 Cr.P.C.(Exb.P6) also, wherein he stated that P. Thangbuaia, who stayed at his neighborhood before shifting his residence, used to touch his penis with his hand since his childhood. He used to touch him inside his room. And after shifting his house, he visited his new house and then he called him inside and touched his penis. He called him every morning and he used to give Rs. 10/, Rs.50/-and sometime Rs.80/-, and from this year he used to rubbed his penis against his anus besides forcing him to touch his penis and he warned him that he would slap him if he disclose the same to his parents. 16. There is no doubt that as pointed out by the learned counsel for the appellant, some inconsistencies are there in his statement u/s 164 Cr.P.C. But, the same appears to be not on material point. The factum of touching the penis of the victim by the appellant in his room and giving money to the victim finds ample corroboration from the statement. The inconsistencies, to the considered opinion of this court failed spell inveracity to the version of the victim. Therefore, I am not inclined to attribute much significance to the same. In holding so I derived authority from a decision of Hon’ble Supreme Court in State of Punjab vs. Gurmit Singh, reported in (1996) 2 SCC 384 , wherein it has been held that in cases involving sexual harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. the court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reason for seeking corroboration. 17. The evidence of the victim finds support from the evidence of his father (P.W.1) and also from the FIR (Ext.P.1). It is a fact that P.W.1 is not an eye witness to the occurrence. But, he heard it from his son, the victim after the occurrence. His evidence reveals that on 18.09.2019, he received one telephonic call from the teacher of his son, Sri ‘X’, that his son had lot of money and he said that he got the same from a man and she asked him to verify the same. Then on the next day, he spoke to the friends of his son as to how his son has been getting the money but they could not tell him. Then he spoke to his son, who told that P. Thangbuaia has given him the money, but he did not tell him as to why P. Thangbuaia has given him the money. When he beat the victim, then he told that P. Thangbuaia used to touch his penis and also used to press his own penis against his anus and threatened him not to disclose the said facts to anybody else. Then he went to the Aizawl Police Station and lodged the FIR (Exbt.P-1). Nothing tangible could be elicited in cross-examination to discredit his evidence in chief. Thus, on the material point of touching the penis of the victim by the appellant, the evidence of the P.W.1 supported the version of the victim. It is however, a fact that he is not an eye witness to the occurrence, but, he heard it from the victim. 18. It is, however, a fact that the medical evidence has not supported the prosecution version. The learned counsel for the appellant has rightly pointed this out during argument. PW.5 (b) is Dr. Lalrinzuali Chhangte. His evidence reveals that he examined the victim on 19.08.2019, after receiving requisition from the police and after examination; he found no fresh bleeding or laceration on the body of the victim. The learned counsel for the appellant has rightly pointed this out during argument. PW.5 (b) is Dr. Lalrinzuali Chhangte. His evidence reveals that he examined the victim on 19.08.2019, after receiving requisition from the police and after examination; he found no fresh bleeding or laceration on the body of the victim. He took anal swab and sent the specimen for detection of sperm and Exbt.P3 is the medical report submitted by him. It elicited in his cross-examination that no injury was found in the person of the victim. Exbt.P3, the report, submitted by him, is also consistent with his version. But, absence of any mark of injury on the person of the victim is not sufficient to discard the other clear and cogent version of the victim, while it was not the prosecution case of the prosecution that the victim had sustained any injury on his person. 19. Thus, having appreciated, assessed and analyzed the evidence of the victim and his father with the yardstick of probabilities, its intrinsic value and the animus of the witnesses, I find no ground to disbelieve the same. The evidence of the victim and his father goes a long way to establish beyond all reasonable doubt the ingredients of the offence under section 7 of the POCSO Act, which is punishable under section 8 of the said Act, instead of section 9(m) of the POCSO Act which is punishable under section 10 of the said Act. Thus, it appears that the learned Court below has rightly arrived at the conclusion that the evidence of the victim is believable and can be acted upon, while relying upon the ratio laid down by the Hon’ble Supreme Court, in the case of State of Himachal Pradesh vs. Sanjay Kumar @ Sunny, reported in (2017) 2 SCC 51 . 20. Though the learned counsel for the appellant has argued that the evidence of the victim is not of sterling quality so as to act upon the same, yet such submission left this court unimpressed in view of the discussion and finding recorded herein above and also in view of the ratio laid down by Hon’ble Supreme Court in the case of Gurmit Singh (supra). The evidence of the victim is supported by the evidence of his father and the FIR and the statement of the victim, under section 164 Cr.P.C. also lends assurance to the same. 21. The evidence of the victim is supported by the evidence of his father and the FIR and the statement of the victim, under section 164 Cr.P.C. also lends assurance to the same. 21. The record of the learned court below reveals that the appellant had examined one Valhruaii as DW.1. Her evidence reveals that the appellant is her uncle and she used to live with him for many years and he is a retired person of 70 years old, and suffering from problem of nerve. Her evidence also reveals that the victim was look after by the appellant as his child, as his age is of his grand child and the victim used to visit the house of the appellant and asked for money to pay his fines in school and for other purposes and the appellant feeling him as his own child, provided some money to him and the victim also asked for money for massaging the appellant. The victim had never made any complaint against the appellant and he has no antecedent of having any criminal cases in past and he never found doing any illegal activities. It is elicited in her cross-examination that the victim used to massage the appellant inside his bedroom and she did not see all the times, when the victim massaged the appellant. Thus, instead of advancing the case of the appellant the evidence of D.W.1 has strengthened the case of the prosecution to the extent that the victim used to massage the appellant inside his bed room. 22. It is to be mentioned here that the appellant was charged under section 10 of the POCSO Act for commission of the offence described under section 9(m) of the POCSO Act. 22. It is to be mentioned here that the appellant was charged under section 10 of the POCSO Act for commission of the offence described under section 9(m) of the POCSO Act. Section 29 of the POCSO Act provides that “Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.” Here in this case also, the appellant having been charged under section 10 for committing the offence under section 9 of the POCSO Act, the presumption, as provided under section 29 of the said Act, is available and the appellant, neither from the cross-examination of the prosecution witnesses nor from evidence adduced by his own witness had been able to rebut the said presumption. Being so, with all amplitude and plenitude the presumption is available against him. 23. It is a fact that the learned Court below, while convicting the appellant, has sentenced him on the same date without fixing a date, as provided under Section 235(2) of the Cr.P.C, for hearing. Nevertheless, the learned Court below heard the appellant on the point of sentence and the submission of learned Advocates of both sides. Though, the learned counsel for the appellant has referred the case of Allauddin Mian & Ors. (supra), yet, the same was a decision of two Judge Bench, but, later on, in the case of Vasanta Sampat Dupare (supra), a three Judge Bench of the Hon’ble Supreme Court has held that Section 235(2) of the Cr.P.C. is mandatory but fixing a separate date for hearing on the point of sentence, as provided under Section 235(2) of the Cr.P.C. is not always necessary and the same depends upon facts and circumstances, as to whether a separate date is required for hearing on sentence or parties feel convenient to argue on sentence on the same day. 24. It appears from the record of learned Court below, that appellant had never prayed for a date for hearing on the point of sentence. Having not prayed for a separate date for hearing on the point of sentence, now the appellant cannot be allowed to turnaround to contend that prejudice is caused to him. Mrs. 24. It appears from the record of learned Court below, that appellant had never prayed for a date for hearing on the point of sentence. Having not prayed for a separate date for hearing on the point of sentence, now the appellant cannot be allowed to turnaround to contend that prejudice is caused to him. Mrs. Linda L. Fambawl, the learned Addl. P.P., Mizoram, thus, rightly submitted that now it is not mandatory to adjourn the case to another date for hearing on the point of sentence and hearing the appellant on the same date had caused no dent to the prosecution version and I record concurrence to the same. In the given facts and circumstances I find that the provision of section 235(2) Cr.P.C. has been complied with as the appellant was duly heard by the learned court below on the point of sentence. 25. I have also gone through the other case laws, referred by the learned counsel for the appellant and find that the ratio laid down therein are restricted to their own facts and circumstances as such the same are not applicable in all force to the facts and circumstances, herein this case. 26. Thus, I find that the prosecution side has succeeded in bringing home the charge under Section 8 of the POCSO Act instead of section 10 of the POCSO Act. And as such the conviction and sentence of the appellant is required to be modified to under section 8 of the POCSO Act, instead of section 10 of the said Act. 27. In the result, I find merit in this appeal and it is allowed partly. The conviction of the appellant under section 10 of the POCSO Act stand modified to section 8 of the POCSO Act and the sentence of R.I. for five (5) years stands modified to a period of three (3) years. However, the fine amount of Rs.3,000/-(Rupees three thousands) only, in default to suffer further period of three months R.I. shall remain unchanged. Send down the case record immediately, to the learned Court below with a copy of this judgment and order.