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2025 DIGILAW 1086 (GAU)

Vanlalruata v. State of Mizoram

2025-06-20

SHAMIMA JAHAN

body2025
JUDGMENT : Shamima Jahan, J. Heard Mr. Joseph L Renthlei, learned Amicus Curiae appearing for the appellant, Ms. Linda L Fambawl, learned Public Prosecutor for the State of Mizoram and Mr. C Tlanthianghlima, Legal Aid Counsel appearing for the informant. 1. This is a criminal appeal filed from Jail under Section 383 of the Code of Criminal Procedure, 1973, against the Judgment & Order dated 17.11.2021 passed by the Fast Track Court, Kolasib District, in Sessions Case(K) No. 12 of 2019, under Section 376(2)(f) IPC read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (here-in-after shortly referred to as “the POCSO Act”). BASIC FACTS 2. The prosecution story as unfolded is that the FIR was lodged by the informant stating inter alia that the victim, 8 years of age, complained of some pain in her private part during June, 2018 and when the informant asked her the reason as to why she was experiencing pain, she did not answer and as such, the informant took her to the Doctor and when the Doctor asked as to whether anyone had touched her private part, she at first did not reveal anything but on being forced, she finally told that her neighbor i.e. the appellant has touched her private part. On being informed, the informant as such lodged the FIR. The Police, on receipt of the said FIR, registered the same as Kolasib P.S Case No. 13/2019 dated 16.01.2019 under Section 376 (2)(f) IPC, read with Section 6 of the POCSO Act. On completion of the investigation, the Police submitted charge-sheet against the appellant on 02.04.2019. Thereafter, the learned Judge, Fast Track Court after complying with of all the procedures, framed charges against the appellant under Section 376 (2)(f) of the IPC and the same was read over and explained to the appellant in his own language to which the appellant pleaded not guilty and the trial was conducted. 3. During the trial, the prosecution examined 8 witnesses including the Investigation Officer (I.O). Thereafter, the appellant was examined under Section 313 of the Cr.P.C and on completion of the trial, the learned Court convicted the appellant and sentenced him to undergo Rigorous Imprisonment for a period of 10 years with a fine of Rs. 3. During the trial, the prosecution examined 8 witnesses including the Investigation Officer (I.O). Thereafter, the appellant was examined under Section 313 of the Cr.P.C and on completion of the trial, the learned Court convicted the appellant and sentenced him to undergo Rigorous Imprisonment for a period of 10 years with a fine of Rs. 5,000/- and in default of the payment of fine, he was further directed to undergo Rigorous Imprisonment for another period of 1 (one) month, u/s 6 of the POCSO Act. ARGUMENTS 4. Assailing the impugned Judgment & Order dated 17.11.2021 passed by the learned Fast Track Court as mentioned above, Mr. Joseph L Renthlei, the Amicus Curiae appearing for the appellant argued that in the instant case, the Doctor who examined the victim was not made a witness and that the same becomes fatal in the instant case. He also argued that the learned Trial Court, while recording the deposition of the victim did not examine the competency of the victim in understanding the nature of the case, since she was only 8 years old. The Amicus Curiae further argued that the appellant had admitted his guilt both during his examination under Section 313 Cr.P.C as well as in his judicial confession, recorded under Section 164 of the Cr.P.C and further argued that in both the statements, the appellant had admitted that he had only touched the private part of the victim and nothing beyond. He also stated that although the victim in her statement before the Trial Court had stated that the appellant had inserted his finger into her private part but the same did not find place in his Section 164 CrPC statements mentioned above and that the said fact being an incriminating circumstance was also not put to the appellant while questioning him under Section 313 Cr.P.C. He, as such, had stated that the instant case does not come within the purview of Section 6 of the POCSO Act and that the same could have been at best under Section 8 of the POCSO Act. He therefore prays that there are many discrepancies in the evidence on record and many flaws thereof and as such, the judgment & order of the Fast Track Court may be interfered with. He therefore prays that there are many discrepancies in the evidence on record and many flaws thereof and as such, the judgment & order of the Fast Track Court may be interfered with. He had relied on the following judgments to substantiate his points:- (1) P Ramesh vs. State, reported in (2019) 20 SCC 593 , wherein the Hon’ble Supreme Court had held that the competency of a child can be ascertained by questioning her/him to find out the culpability to understand the occurrence and to know the truth. (2) Rajkumar Sing alias Raju alias Batya vs. State of Rajasthan, reported in (2013) 5 SCC 722 , wherein the Hon’ble Supreme Court had held that under Section 313 of the Cr.P.C, the accused should be asked to furnish explanation as regards to all the incriminating circumstances associated with him and that the circumstances which are not put to the accused cannot be used against him. 5. On the other hand, the learned Public Prosecutor for the State of Mizoram, Ms. Linda L Fambawl submitted before this Court that when the victim was examined by the Magistrate under Section 164 Cr.P.C, her competency was tested, by putting questions as can be seen from the documents on record. She also submitted that the victim has made consistent statement before the authorities concerned right from the beginning and she also placed the medical report and showed that the hymen was absent which proves aggravated sexual assault committed upon the victim. She however stated that there are many discrepancies as well as loopholes in the evidence of the record and as such, she prayed that the case can be remanded back to the learned Court to be heard afresh. 6. The informant was represented by Sh. C Tlanthianghlima, a Legal Aid Counsel and he submits that the foundational facts required to be established in a case under the POCSO Act are present in the instant case and that the deposition of the victim was consistent before the Police, the Magistrate and the Trial Court. As such, he prays that the conviction awarded by the learned Trial Court may not be interfered with and the instant case may be dismissed. 7. I have considered the arguments at the bar by the learned counsel for all the parties and I have also carefully gone through the evidence on record. As such, he prays that the conviction awarded by the learned Trial Court may not be interfered with and the instant case may be dismissed. 7. I have considered the arguments at the bar by the learned counsel for all the parties and I have also carefully gone through the evidence on record. Since the basic argument of the appellant’s counsel is to the effect that the instant case would not come within the purview of Section 6 of the POCSO Act and that there are many flaws in the Trial Court’s judgment, I propose to analyze the evidence on record. ANALYSIS 8. It is seen from the records of the case that the FIR was registered under Section 376(2)(f) IPC, read with Section 6 of the POCSO Act and the charge- sheet was also filed under the aforesaid sections. However, the Trial Court during framing of charge against the appellant had framed the charge under Section 376(2)(f) of the IPC. This Court, while going through the order sheet of the learned Trial Court, has found that on 08.05.2019, the learned Addl. Public Prosecutor, while opening the case under Section 226 of the Cr.P.C prayed before the learned Court to drop Section 6 of the POCSO Act and the learned Trial Court strangely enough, on being not objected by the other side, dropped Section 6 of the POCSO Act from the charges against the appellant and framed charges only under Section 376 (2)(f) of the IPC and conducted the trial. The learned Trial Court, after concluding the trial recorded the finding that the accused had committed aggravated penetrative sexual assault upon the minor victim and that the prosecution has been able to prove the guilt of the accused beyond all reasonable doubt and accordingly, the Trial Court convicted the appellant and sentenced him under Section 6 of the POCSO Act. 9. The Trial Court had proceeded by holding that the charges were framed against the appellant both under Section 376 (2)(f) IPC as well as under Section 6 of the POCSO Act. It is not known as to how the learned Trial Court proceeded on the same. In the records, there is nothing to show that charges were framed under Section 6 of the POCSO Act. It is not known as to how the learned Trial Court proceeded on the same. In the records, there is nothing to show that charges were framed under Section 6 of the POCSO Act. Rather in the order sheet as has been stated above the charges under Section 6 of the POCSO Act was dropped on the request made by the learned Addl. Public Prosecutor appearing before the Trial Court which was done on 08.05.2019 and thereafter, there is nothing in the order sheet that the charges under Section 6 of the POCSO Act was added or the charges were altered at any point of time. Therefore, the exercise of the Trial Court in proceeding with the trial for the offence under both these Sections, was uncalled for in the instant case. EVIDENCE. 10. The clinching evidence in the instant case is the evidence of the victim and she was examined as PW-2. She stated before the Trial Court that the appellant used to touch her private part and she was threatened by the appellant not to disclose the matter to anyone. She also stated that the appellant pulled down her undergarment and touched her private part by inserting his finger inside it. In her statement before the learned Magistrate under Section 164 of the Cr.P.C, she deposed that when she went to the appellant’s house to collect fruit, the appellant caught her and removed her underwear and that he touched her private part with his hands. She also stated that being threatened she did not divulge the incident to her parents. In her statement before the I.O, she stated that she went to the house of the appellant to take fruit and that the appellant pulled her and inserting his hands into her undergarment and touched her private part. She thereafter stated that when she suffered from itching in her private part, a neighbor took her to the hospital and then she disclosed the incident to her friend. It is seen from the statements of the victim that in her statement before the Police or in her statement before the Magistrate, she did not state about the appellant inserting his finger into her private part. 11. It is seen from the statements of the victim that in her statement before the Police or in her statement before the Magistrate, she did not state about the appellant inserting his finger into her private part. 11. It is no res integra that if the statement of the victim before all the authorities, right from the inception is consistent and inspires the confidence of the Court, the same can form the basis of conviction. In the instant case, there appears contradiction in the statement of the victim as mentioned above. However, it cannot be lost sight of the fact that the victim was of 8 years old and some discrepancy is inevitable in such cases. 12. It is a settled position of law that in case the statement of the victim are not consistent and does not inspire the confidence of the Court, some corroboration may be sought for in the evidences on record. 13. The informant was examined as PW-1 and the said informant stated before the Trial Court that on being informed by the victim about the pain in her private part, she was taken to the private hospital and on being asked a number of times she finally revealed that the appellant touched her private part. This witness is a hearsay witness and she stated whatever is being informed to her by the victim. 14. PW-3 is the friend of the victim and she stated that the victim told her that the accused had removed her undergarment and touched her private part. 15. PW-4 is a neighbor of the victim and she stated that that on one night, while she was at the victim’s house, the victim complained of itching in her private part and that when she enquired she saw a minor injury in the private part of the victim and that when on the next day, the victim was taken to the hospital, the victim on repeated requests disclosed the incident that the appellant had dabbed her private part. PW-5 & 6 were examined by the prosecution only to bring home the fact that the victim was minor. 16. Thereafter the prosecution had examined two numbers of I.Os. They are PW-8 & 9. PW-8 stated before the Trial Court that on a written FIR submitted by the informant, he registered the case and he investigated into the same. PW-5 & 6 were examined by the prosecution only to bring home the fact that the victim was minor. 16. Thereafter the prosecution had examined two numbers of I.Os. They are PW-8 & 9. PW-8 stated before the Trial Court that on a written FIR submitted by the informant, he registered the case and he investigated into the same. He seized the birth certificate of the victim and he had also sent the victim for recording her judicial statement before the CJM and he also sent the appellant for recording his confessional statement under Section 164 of the Cr.P.C. He recorded the statement of the victim wherein, the victim stated as mentioned above. PW-9 who is also an Investigating Officer who stated before the Trial Court that on completion of the investigation, he submitted the charge-sheet against the appellant. 17. Further the prosecution had recorded the Judicial Confession of the appellant under Section 164 of the CrPC which was however not exhibited. It is seen that the appellant confessed that he had a sexual desire for the victim since long and that he would put her on his lap and touch her private part and on specific question being put by the Magistrate as to whether he touched her private part, he answered in the affirmative and said that he does so. However the same cannot be taken into account, having not been exhibited. 18. These are the evidences put forth by the prosecution. 19. Thereafter the appellant was examined under Section 313 Cr.P.C. During the said examination under Section 313 Cr.P.C, only three questions were put to the appellant and they are as follows:- “Q.1. It is evident that about the year 2018, you had removed the underpant of the victim X and used to touch her vagina several times and you also had threatened not to disclose the matter to anyone. Do you have anything to say about this? Ans: Yes. It is true. Q.2. It is evident that you had committed an offence punishable by law. Do you have anything to say about this? Ans: I do not know that the act done by me is punishable under the law. Q.4. Do you have anything to say with regard to the allegation made against you? Ans: I have nothing to say.” 20. Q.2. It is evident that you had committed an offence punishable by law. Do you have anything to say about this? Ans: I do not know that the act done by me is punishable under the law. Q.4. Do you have anything to say with regard to the allegation made against you? Ans: I have nothing to say.” 20. It is seen from the answer to question No. 1 as quoted above that the appellant had admitted that he had removed the undergarment of the victim and touched her private part several times and that he has also threatened her not to disclose the matter to anyone. 21. In the backdrop of the aforesaid evidence led by the prosecution as well as by the defence, this Court is called upon to examine as to whether the prosecution had succeeded in establishing the charge against the appellant or that the learned Court below had committed error in convicting the appellant under Section 6 of the POCSO Act, while framing charge under Section 376 (2) (f) IPC and as to whether the learned Trial Court had committed errors in examining the appellant under Section 313 of the Cr.P.C. FINDINGS 22. This Court would like to first deal with the issue as to whether the conviction of the appellant under Section 6 of the POCSO Act is correct or not. It is seen from the records that although the Police had registered the case and had submitted charge-sheet under both these Sections i.e. 376 (2)(f) IPC as well as Section 6 of the POCSO Act, the learned Trial Court dropped the charge under Section 6 of the POCSO Act and framed charge only under Section 376 (2)(f) IPC and thereafter, the learned Trial Court sentenced the appellant under Section 6 of the POCSO Act. Further it is not very clear from the Judgment and order of the Trial Court as to whether the conviction of the appellant was under both the provisions or only under Section 6 of the POCSO Act. The issue as to whether the appellant could have been convicted and sentenced under Section 6 of the POCSO Act in absence of the charge under the said Section, has to be addressed by this Hon’ble Court. 23. The issue as to whether the appellant could have been convicted and sentenced under Section 6 of the POCSO Act in absence of the charge under the said Section, has to be addressed by this Hon’ble Court. 23. Section 221 and 222 of the Cr.P.C (Section 244 and Section 245 of the BNSS) are the two provisions dealing with the power of the Criminal Court to convict the accused of the offence which is not included in the charge. The primary condition for application of Section 221 of the Code (Section 244 of BNSS) is that the Court should have felt doubt at the time of framing charge as to which of the several acts will constitute the offence on account of the nature of the acts or series of the acts alleged against the accused. In such a case, the Section permits to convict the accused of the offence of which, he is shown to have committed though he was not charged with it. However in this present case, looking at the nature of the acts alleged by the prosecution, there was absolutely no scope for any doubt regarding the offence under the POCSO Act at the time of framing of charge. 24. Section 222 (1) CrPC (Section 245 (1) of BNSS) of the Court deals with a case “when a person is charged with an offence consisting of several particulars”. The Section permits the Court to convict the accused “of the minor offence though he was not charged with it”. Sub-Section 2 of the said provision deals with somewhat a similar situation viz., “when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he is not charged with it”. Now the issue is, what is meant by a minor offence for the purpose of the said Section. The said term i.e. minor offence is nowhere defined in the Code. However while interpreting the same, it cannot be said that it would primarily depend upon the prescribed punishment in the offences concerned. Now the issue is, what is meant by a minor offence for the purpose of the said Section. The said term i.e. minor offence is nowhere defined in the Code. However while interpreting the same, it cannot be said that it would primarily depend upon the prescribed punishment in the offences concerned. The illustrations provided in the Section would put some light into the issue at hand, in as much as only if the two offences are cognate offences wherein the main ingredients are common, the one punishable amongst them with a lesser sentence can be regarded as a minor offence vis-à-vis the other offence. The composition of offences under Section 6 of POCSO Act is different from the offence of rape under Section 376 (2)(f) IPC and the ingredients of the said two offences cannot be said to be common and hence, the former cannot be regarded as a minor offence vis-à-vis the latter. As such, the conviction of the appellant under Section 6 of the POCSO Act in absence of the charge thereof is an error which was committed by the learned Trial Court. The learned Trial Court during the trial could have altered the charge or added the charge of Section 6 of the POCSO Act which was not done so in the present case as it was not revealed from the records of the case. 25. The learned Public Prosecutor for the State of Mizoram had also fairly submitted that the said exercise was not done and that the appellant was wrongly convicted under Section 6 of the POCSO Act. The learned Public Prosecutor after going through the records of the case also had submitted that there was no alteration and addition of the charge by the learned Trial Court. 26. In the case of Shamnsaheb M. Multtani vs. State of Karnataka, reported in (2001) 2 SCC 577 , the Hon’ble Supreme Court had held that Section 304 (B) IPC is not a lesser offence to Section 302 IPC and in the said case, the charge under Section 304(B) was absent and the charge was only under Section 302 IPC and the question raised therein was whether an accused who was charged under Section 302 IPC could be convicted alternatively under Section 304 B IPC, without the said offence being specifically put in the charge. The Hon’ble Supreme Court had concluded that the conviction under 304B IPC was wrong in absence of the charge thereof, since Section 304 (B) is not a lesser offence and as such, the Hon’ble Supreme Court had remanded the case to the Trial Court to be heard afresh from the stage of framing of charge. Similarly, in the instant case too, this Court having found that Section 6 of the POCSO Act being not a lesser offence, the same without being charged, the conviction could not have been granted by the learned Trial Court under the said Section. 27. There is yet another issue apart from the wrong framing of charge and that is the flaw in the examination of the appellant under Section 313 of the Cr.P.C. It is the mandate of law that all the incriminating circumstances that appears in the evidence against the accused person has to be put to the accused person while examining him under Section 313 of the Cr.P.C. It has been held by the Hon’ble Supreme Court in a number of decisions that if all relevant questions i.e. all incriminating circumstances were not put to the accused by the Trial Court and the accused had shown prejudices being caused to him or where prejudices is implicit, the appellate Court has the power to remand the case for re-decision from the stage of recording the statement under Section 313 of the Cr.P.C. In the instant case, it is seen that only three questions were put to the accused person in his examination under Section 313 of the Cr.P.C where he had admitted of touching the private part of the victim. However, there are other incriminating circumstances such as, the victim while deposing before the Trial Court had stated that the appellant had inserted his finger inside her private part and the same was not put to the accused person in his Section 313 CrPC statement. Further, the circumstance that the Doctor, on examining the victim, had found that some person had dabbed the private part of the victim, was also not put to the accused person. Furthermore, the judicial confession given by the appellant under Section 164 of the Cr.P.C was also not put to him in his examination. Further, the circumstance that the Doctor, on examining the victim, had found that some person had dabbed the private part of the victim, was also not put to the accused person. Furthermore, the judicial confession given by the appellant under Section 164 of the Cr.P.C was also not put to him in his examination. In his judicial confession under Section 164 CrPC, he had admitted his guilt only to the extent that he had touched the private part of the victim. This circumstance cannot be stated to be irrelevant which would not have caused prejudice to the appellant. Even if the appellant had not shown any prejudice being caused to him but if the prejudices are implicit, the same will have a fatal impact on the prosecution’s case. 28. The Hon’ble Supreme Court in Nar Singh vs. State of Haryana, reported in (2015) 1 SCC 496 had held that all relevant questions has to be put to the accused persons while examining him under Section 313 of the Cr.P.C. The Hon’ble Supreme Court had also held that if some incriminating circumstances were not put to the accused by the Trial Court and if the same had caused prejudice to the accused, the appellate Court has the power to remand the case for re-decision. 29. The Hon’ble Supreme Court also in Ashafa Ali vs. State of Assam, reported in (2008) 16 SCC 328 had observed that in certain cases where there is perfunctory examination under Section 313 of the Cr.P.C, the matter could be remitted to the Trial Court with a direction to retry from the stage at which the prosecution was closed. 30. In the case of Nar Singh (supra), the question regarding the FSL report against the accused person was not put to him in his Section 313 statement and the same was considered as a flaw and the Hon’ble Supreme Court had remitted the case back to the Trial Court for re-hearing from the stage of Section 313 CrPC statement. In the case at hand, the prejudice caused to the appellant was implicit as many of the incriminating circumstances were not put to him. As such, the Court is left with no option but to remit the case for re-trial. CONCLUSIONS 31. In the case at hand, the prejudice caused to the appellant was implicit as many of the incriminating circumstances were not put to him. As such, the Court is left with no option but to remit the case for re-trial. CONCLUSIONS 31. In the instant case, it is seen from the above that there are two major flaws committed by the learned Trial Court during the trial:- (1) The conviction of the accused person under Section 6 of the POCSO Act without there being a charge under the said Section and the same, not being a lesser offence was palpably wrong. (2) Many of the incriminating circumstances which were stated against the accused were not put to him during his examination under Section 313 of the Cr.P.C. 32. It was brought to the notice of this Court that the appellant is in custody for about 6 years since the day of his arrest. While the right of the accused to speedy trial is a valuable one, however, this Court has to also take into account the interest of justice, keeping in view the right of the victim’s family and the society at large. In my view, accused is not entitled for acquittal on the ground of wrong framing of charge or non-compliance of the mandatory provisions of Section 313 of the Cr.P.C. I agree to some extent that the appellant is prejudiced on account of the omission in framing the charge as well as in not putting relevant questions in his examination. The Trial Court should have been more careful in framing the charge as well as in framing the questions and in ensuring that the appellant is not prejudiced in any circumstance. However, this omission cannot enure to the benefit of the accused as justice needs to be prevailed. 33. In view of the aforesaid findings, this Court is pleased to set aside the Judgment & Order dated 17.11.2021 passed by the learned Judge, Fast Track Court, Kolasib District and the matter is remitted back to the Trial Court for proceeding with the matter afresh by framing charge under the relevant provisions of law and examining the witnesses again and to further frame the questions involving all the incriminating circumstances and put to the accused in his fresh examination under Section 313 of the Cr.PC (Section 351 of the BNSS). The learned Trial Court may also afford opportunity to the appellant to examine defence witnesses, if any, and proceed with the matter. Since the occurrence is of the year 2019, this court directs the Trial Court to expedite the matter and dispose off the same in accordance with law, preferably within a period of 6 months from the date of receipt of this judgment. Since this Court is setting aside the conviction imposed upon the appellant, the appellant is at liberty to move for bail, if so advised. On such bail application being moved by the appellant, the Trial Court shall consider the same in accordance with law. I make it further clear that this Court has not expressed any opinion on the merits of the case. 34. Further, in appreciation of the assistance provided by the learned Amicus Curiae, his fee of Rs. 7,500-/- is to be provided by the Mizoram State Legal Services Authority. The fee of the learned Legal Aid Counsel should be given to him as per the prescribed norms. 35. The appeal is disposed off. 36. Send back the LCR.