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2022 DIGILAW 290 (GAU)

Lalramthanga v. State of Mizoram

2022-03-21

MARLI VANKUNG

body2022
JUDGMENT : Heard Mr. Joseph L. Renthlei, learned counsel appearing for the appellant as well as Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor, Mizoram. The appellant has challenged the impugned Judgment & Order dated 15.02.2021 passed by the Special Court, POCSO Act, Aizawl in SC No. 184 of 2017, by which the appellant has been convicted under Section 8 of the POCSO Act, 2012 and sentenced to undergo 3 years Simple Imprisonment with a fine of Rs.1000/-, in default S.I. for 1 month, vide Sentence Order dated 01.03.2021. 2. The prosecution case in brief is that an FIR was submitted to the Officer-in-Charge, Vaivakawn Police Station, Aizawl on 19.08.2017 by one Ramnghinglova, s/o T. Sanghluna, R/o Chawnpui Vengthlang, Aizawl, stating that on 18.08.2017 at around 7:30 pm his daughter ‘X’ aged 4 years, was sexually assaulted in an enclosure used for cooking pigfeed by a person known to them as Pa Rama. In pursuance to the FIR submitted, Vaivakawn Police Station Case No.129/2017 was registered under Section 8 of the POCSO Act, dated 19.08.2017. 3. The appellant was arrested on 19.08.2017 (subsequently released on bail on 12.12.2017) and the victim girl X was medically examined by a Medical Doctor, who found no bruising or lacerations on her external genitalia. During investigation of the case by the Police I.O, the statement of 8 (eight) prosecution witnesses were recorded and the victim girl also gave her judicial statement to the Judicial Magistrate under Section 164 Cr.P.C on 21.08.2017. The birth certificate of ‘X’ was seized which showed that she was born on 14.02.2013. Thereafter, charge sheet was filed on 09.10.2017. 4. Charge under section 8 of the POCSO Act, 2012 was framed against the appellant on 28.11.2017, wherein the appellant pleaded not guilty and prayed for trial. The trial court after examination of 7 (seven) prosecution witnesses, examined the appellant/accused under Section 313 Cr.P.C on 04.11.2017 where he denied having committed any sexual assault upon the victim girl X, thereafter, 2 (two) defense witnesses were examined. The learned Trial Court, after hearing the parties found the appellant to be guilty and convicted him under section 8 of the POCSO Act, 2012, vide the impugned Judgment & Order dated 15.02.2021. Sentence hearing was held on 01.03.2021 whereby he was punished to undergo S.I. for 3 years with a fine of Rs.1000 /-, in default S.I. for 1 month. 5. Sentence hearing was held on 01.03.2021 whereby he was punished to undergo S.I. for 3 years with a fine of Rs.1000 /-, in default S.I. for 1 month. 5. Being aggrieved, the appellant has filed the present appeal. 6. Mr. Joseph L. Renthlei, learned counsel appearing for the appellant submits that the trial court erred in relying on the sole testimony of the prosecutrix who is only four (4) years old. Being of a very tender age, it would have been appropriate for the Ld. Trial Court to conduct a competency test upon the child before relying upon her evidence to convict the accused. The trial court did not conduct such a test to determine the competency of the child. That, it is an established principle of law that evidence of a child witness must be evaluated carefully before relying upon the statement of a child to convict an accused. The evidence of a child needs to be supported by adequate corroboration before being relied upon especially when as in the present case, the child is of a tender age. That the statement of the child prosecutrix cannot be of a sterling quality that can be used for convicting the accused without any corroboration. That the Hon’ble Supreme court held that for a statement to be of ‘sterling’ in ‘quality’ the statement has to be consistent from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. In the instant case, there is a difference in the statement given by the victim child before the Judicial Magistrate on 21.08.2017 and in her evidence given before the Court on 24.01.2018. He submits that while the evidence of the child was exaggerated in her pre-trial statement which was to the effect that the appellant had aggressively inserted his fingers into her private parts and that she screamed because it was paining, which was heard by her father which lead to her rescue. That on medical examination of the child the next day, it was found that there was no bruising or lacerations on her genitalia, and that her hymen was intact. The testimony of the child in the court was that the accused had touched her private part and nothing more. That on medical examination of the child the next day, it was found that there was no bruising or lacerations on her genitalia, and that her hymen was intact. The testimony of the child in the court was that the accused had touched her private part and nothing more. That the accused on his examination under section 313 Cr.P.C gave the correct perspective of what had happened on that day. That the child does not understand the consequences of her statement and has fabricated the whole thing. That the appellant should be given the benefit of doubt since the statement of the child cannot be relied on. In support of his submission the learned counsel relied on the decisions of the Apex court in K. Venkateshwarli vrs. State of Andhra Pradesh, reported in SC 2012 8 SCC 73 para 9, Radhey Shyam vrs. State of Rajasthan reported in SC 2014 5 SCC 389 and State of Rajasthan vrs. Chandhi reported in S.C 2014 SCC 596 7. Mrs. Linda L. Fambawl learned Addl. PP on the other hand submits that the appellant himself when examined under section 313 Cr.P.C admits that he was with the child in the enclosure for cooking pig feed on 18.08.2017. The prosecutrix though a child has described the incident and has denied the suggestion that she was tutored, The testimony of the child is corroborated by the statement of PW1 who is the complainant and PW2 who is the mother of the child to whom the child first narrated the incident. Pw1 has rescued the child from the P.O and saw the child with the appellant who was on the lap of the appellant. The child had then narrated the incident to her mother stating that the appellant had touched her private part. That the appellant had only touched the private part of the child and thus the medical evidence corroborates with the statement of the child. There is no reason to disbelieve the statement of the child witness. There is no inconsistency in the statements of PW1 and PW3 which clearly corroborates the testimony of the child. The defense witness No. 2 also stated that there is no enmity between the appellant and the family of the child prosecutrix and thus in the absence of any enmity there is no reason to falsely implicate the appellant. The learned Addl. The defense witness No. 2 also stated that there is no enmity between the appellant and the family of the child prosecutrix and thus in the absence of any enmity there is no reason to falsely implicate the appellant. The learned Addl. PP relied on the Judgment of the Supreme Court Judgment in Ganessan vrs. Staterepresented byit’s Inspector of Police reported in (2020)10 SCC 573 and Narender Kumar vrs. State (NCT of Delhi) 2012 7 SCC 171 . 8. The submissions made by both the parties is considered. In this case the deposition of the child prosecutrix who is only 4 years old on the date of the incident needs to be considered in light of the decision of the Apex court in K. Venkateshwarluvrs. State of Andhra Pradesh (supra) wherein the Apex Court held “The evidence of a child witness has to be subjected to closest scrutiny and can be accepted only if the court comes to the conclusion that the child understands the question put to him and he is capable of giving rational answers (see section 118 of the Evidence Act). A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion. Evidence of a child witness can be relied upon if the court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth. It is safe and prudent to look for corroboration for the evidence of a child witness from the other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what he has been asked to say not knowing the consequences of his deposition in the court. Careful evaluation of the evidence of a child witness in the background and context of other evidence on record is a must before the court decides to rely upon it.” 9. The apex Court in Radhey Shyam vrs. State of Rajasthan (supra) referred to the decision in Ratansinh Dalsukhbhai Nayak vrs. Careful evaluation of the evidence of a child witness in the background and context of other evidence on record is a must before the court decides to rely upon it.” 9. The apex Court in Radhey Shyam vrs. State of Rajasthan (supra) referred to the decision in Ratansinh Dalsukhbhai Nayak vrs. State of Gujarat, where the Court considered the evidentiary value of the testimony of a child witness and observed as under : “The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.” 10. In light of the observations made by the Hon’ble Apex court, the evidence of the child prosecutrix aged 4 yrs is scrutinized cautiously. The deposition of the alleged victim X, aged 4 years, as PW-2 on 24.1.2018 was as follows (verbatim): Examination-in-Chief “I am four years old. I have a younger brother. His name is Lalruatfela. I go to Primary School. I do not know which class. I have a neighbor who we call Pa Rama. I cannot say the date, Pa Rama took me to the shed where he used to cook pig food. He touched me on my vagina. I said, “I want to go home,” I said, “I want to go to my mother.” He did not let me go home. He put me on his lap and touched my vagina. I did not cry. My father came and took me home from the shed”. He touched me on my vagina. I said, “I want to go home,” I said, “I want to go to my mother.” He did not let me go home. He put me on his lap and touched my vagina. I did not cry. My father came and took me home from the shed”. Cross-examination: “We have a television in my house. On the date when Pa Rama took me, we watched TV in my house. Pa Rama asked me to call my father. He said that they were going to learn hymns. Before I came to Court today, my parents told me to speak about Pa Rama. He touched me on my vagina by inserting his hands inside my clothes. (On being asked to point out the place where the accused touched her, the witness pointed to her vaginal region.) It is not a fact that I was tutored by my parents on how to depose in Court.” 11. The child prosecutrix had however first narrated the incident in her pretrail statement recorded under section 164 Cr.P.C on 21.08.2017 by Mr. H. Lalduhsanga, J.M.F.C., Aizawl. This was produced in evidence and exhibited as Exbt.P-4 by PW-7who is the Case I.O. The child prosecutrix as translated from the original Mizo version, stated as follows : “I was staying outside the house of U Dindini when uncle Rama took my hand and said, “I will help you search A pu” However he did not help me search for him at all, it was raining. I told him that I wanted to go home but he did not allow me. He took me to the pigsty, and he made me sit on his lap and he inserted his fingers inside my private part. As I shouted out in pain, my father heard me and came and rescued me.’ 12. The discrepancy in the above statements made by the child prosecutrix regarding the extend of the alleged sexual assault is noted, she has a stated in the court that the appellant had touched her private part, she did not cry while in her statement recorded under 164 Cr.P.C she stated that the appellant inserted his fingers in her private part and she shouted out in pain, and because of which, this court finds it difficult to place implicit reliance on her testimony and needs to be corroborated by the other evidences available on record. The deposition and evidence adduced by the trial court is thus meticulously scrutinized and analyzed herein: 13. PW1/Ramnghinglova is the complainant and the father of the child prosecutrix. his testimony about the incident is reproduced herein “When I went near the area where the accused had a shed for cooking pig feed in his compound, I heard the voice of my daughter. The shed was quite far from the residences of other people. I kicked open the shed and saw the accused had my daughter on his lap. I took my daughter and went home with her and my wife, who had arrived at the scene. My wife carried the child on the way home and asked her what the accused had done. My daughter said that when she came to call me to church, her grandfather had gone away from the house where they had been watching television (together) and the accused told her that he would take her to her grandfather. She said that he first took her to a garage near the shed, and after they were there for some time, he took her to the shed. Inside the shed, he pulled her onto his lap, inserted his hands inside her clothes and touched her vagina. She said she wanted to go home but the accused did not let her.” 14. PW-3, Lalchhuanawmi, 26 W/o Ramnginglova, deposed that she was X’s mother and her narration of the incident is reproduced when my husband and I reached the place where the accused had a pig shed , we heard the sound of X talking. We heard her say “It’s paining“. My husband ran up and opened the door of the shed which was used by the accused to cook the pigs food. The accused and X were inside .My husband brought X out. She was crying and we took her home. When we reached home, I asked X what had happened. She said that the accused had inserted his hand into her underwear and touched her vagina.” 15. It is noted that there are again discrepancies in the statement of both the witnesses regarding what X told her mother PW3. PW1’s narration as to what X told her mother PW3 is more detailed regarding the circumstances before the alleged incident. She said that the accused had inserted his hand into her underwear and touched her vagina.” 15. It is noted that there are again discrepancies in the statement of both the witnesses regarding what X told her mother PW3. PW1’s narration as to what X told her mother PW3 is more detailed regarding the circumstances before the alleged incident. Further X herself stated that she did not cry which is different from PW3’s version who state that X was crying when they found her with the appellant. PW 3 further states that they heard X say “it’s paining” but this is not mentioned by X herself. This also does not conform to the medical examination report of X, exhibited as Ext P-3.Dr.C. Lalduhsaka/PW4 is the doctor who examined X the next day of the incident i.e on 19.08.2017. The medical examination report shows that there was no bruising or lacerations on her external genitalia. Her hymen was intact. 16. PW5/is R. Lalthanpuii S.I who recorded the statement of X in the IUCAW Cell in the presence of both the parents of X. On cross examination she has stated that she does not know whether what she has recorded is the same as what was recorded by the Judicial Magistrate under section 164 Cr.P.C. It was brought to the notice of this court that in the statement made by X she had mentioned that the accused had aggressively inserted his fingers inside her private part. Which is again in contradiction with her deposition in the court and her medical examination report. 17. PW6 is the seizure witness of the birth certificate of X .It shows the date of birth of X as 14.2.2013. X would accordingly have been only 4 (four) years and 7 (seven) months of age at the time of the alleged assault on 18.8.2017. 18. PW-7, Lalhriatpuii Ralte, deposed that she was posted as an Assistant Sub-Inspector of Police at the Investigative Unit for Crimes Against Women (IUCAW) Cell, Aizawl on 19.8.2017 when an FIR was filed by Ramnghinglova of Chawnpui Vengthlang, Aizawl stating that his four-year-old daughter, X, had been sexually assaulted by the accused, “Pa Rama”, at around 7:30 Pm on 18.8.2017. A case was registered at the Vaivakawn Police Station under Section 8 of the POCSO Act and it was referred to the IUCAW Cell by the Officer-in-Charge, who endorsed it to PW-7 for investigation. A case was registered at the Vaivakawn Police Station under Section 8 of the POCSO Act and it was referred to the IUCAW Cell by the Officer-in-Charge, who endorsed it to PW-7 for investigation. She visited the place of occurrence and examined the informant and a number of witnesses, but X was examined in relation to the allegation by Sub-Inspector R. Lalthanpuii (PW-5). The alleged victim was also produced before Court and a statement she tendered was recorded by a Judicial Magistrate. She was forwarded to the Civil Hospital, Aizawl, for a medical examination and her birth certificate was seized. On interrogation the accused denied the charge made against him however after investigation prima facie case was found against the accused and a Charge sheet was accordingly filed against him, PW-7 produced the Charge sheet, which included the pretrial statement of the alleged victim recorded by Mr. H. Lalduhsanga, J.M.F.C., Aizawl, on 21.8.2017, during the course of the investigation, as Exbt. P-4. 19. The appellant/accused on examination under section 313 Cr.P.C denied sexually molesting X and stated that that X had followed her to the shed since it was raining and five minutes after she entered the shed her father came into the shed looking for her and accused him of assaulting his daughter. 20. Two defence witness were produced and the deposition of both the witnesses were basically to vouch on the good character of the appellant and his involvement in church activities. 21. From the above findings, the only incriminating circumstances proved against the appellant is that he was found along with the prosecutrix in the shed used for cooking pig feed on 18.08.2017 at around 7:30 pm. The different versions of the sexual assault alleged to be committed by the appellant upon X in her statement recorded under 164Cr,P.C and her deposition recorded in the court, the slight but significant discrepancies found in the deposition of PW3 with the deposition of X in the court, caste a doubt in the mind as to whether the incident had actually taken place or whether it was a figment of imagination of the young child, especially when the medical examination shows that there was no bruising or lacerations on her external genitalia. 22. In view of the circumstances and the discrepancies stated above this court is of the considered view that the appellant, therefore, must be given benefit of doubt. 22. In view of the circumstances and the discrepancies stated above this court is of the considered view that the appellant, therefore, must be given benefit of doubt. The Hon’ble Supreme Court in a catena of judgments has reiterated that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. 23. In view of the above discussions, the impugned Judgment & Order dated 15.02.2021 passed by the Special Court, POCSO Act, Aizawl in SC No. 184 of 2017 is set aside. The appellant is directed to be released forthwith unless required in any other case. 24. The Criminal Appeal no.14 of 2021 is disposed of in the afore-stated terms.