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2025 DIGILAW 151 (GAU)

Lalluahpuia Fanai v. State of Mizoram

2025-01-28

NELSON SAILO

body2025
JUDGMENT : NELSON SAILO, J. Heard Mr. Jonathan L. Sailo, learned Amicus Curiae for the appellant, Ms. Mary L. Khiangte, learned Addl. Public Prosecutor for the State and Mr. C. Tlanthianghlima, learned Legal Aid Counsel for the respondent No. 2. [2.] This is an appeal filed by the appellant against the Judgment & Order dated 01.03.2022 passed by the Presiding Officer, Fast Track Special Court, Rape & POCSO Act, Aizawl, Mizoram in Criminal Trial No. 880/2020 whereby, the appellant has been convicted under Section 10 of the POCSO Act and sentenced to Rigorous Imprisonment for five (5) years and to pay a fine of Rs. 5,000/- with a default clause. [3.] The case of the of the prosecution is that a written FIR was received by the Officer-in-Charge, All Women Police Station, Aizawl from the mother of the victim to the effect that the appellant who as the guest of the victim’s father in the month of January, 2020 made her touch his penis and he also touched her private part. She therefore requested that appropriate action be taken against him as per law for having sexually molested her minor daughter. It was also stated that the FIR was submitted late because of discussion on the issue amongst the family members. As a result of the FIR, All Women P.S Case No. 21/2020 dated 14.07.2020 under Section 10 of the POCSO Act was registered and investigated into. During the investigation, the case I/O examined the complainant, recorded her statements and seized the Birth Certificate of the victim from the possession of the complainant to ascertain the age of the victim in the presence of two (2) reliable witnesses. The statements of the victim was also recorded along with the statements of the two (2) seizure witnesses. The victim was also forwarded to the Civil Hospital, Aizawl for medical examination and to the Judicial Magistrate, Aizawl for recording her statements under 164 Cr.PC. Upon finding a prima facie case well established against the appellant, the case I/O submitted the charge sheet naming as many as 10 prosecution witnesses to prove the charge. [4.] After the charge sheet was submitted, charge was framed against the appellant under Section 10 of the POCSO Act on 24.11.2020 and to which, he pleaded not guilty and claimed for trial. [4.] After the charge sheet was submitted, charge was framed against the appellant under Section 10 of the POCSO Act on 24.11.2020 and to which, he pleaded not guilty and claimed for trial. During the trial, the prosecution examined 7 out of 10 cited prosecution witnesses in the charge sheet. The prosecution witnesses examined were PW- 1, 2, 3, 4, 7, 8 & 10. After the evidence of the prosecution was over, the appellant was examined under Section 313 Cr.PC wherein, he plainly denied the questions put to him from the evidence led against him by the prosecution. The appellant did not examine any defense witness in his defense but cross examined the prosecution witnesses through his appointed counsel. Consequently, the learned Trial Court after hearing the parties decided the case vide the impugned Judgment & Order by convicting and sentencing the appellant in the manner as already stated above. [5.] Mr. Jonathan L. Sailo, learned Amicus Curiae submits that there are in consistencies in the evidence of the prosecution including that of the victim. What the victim stated in her 164 statements are not similar to what she had stated during the trial and under the circumstance, her version is unreliable for convicting the appellant under Section 10 of the POCSO Act. The learned Amicus Curiae further submits that all the evidence that appeared against the appellant during the trial was not put to him in question during his examination under Section 313 of the Cr.PC. The evidence of the prosecution goes to show that the appellant asked the victim to touch his penis and the appellant touched the private part of the victim as well. However, the appellant was not asked as to whether he touched the private part of the victim or not. He submits that Section 313 Cr.PC is a provision conferring a valuable right upon the accused to establish his innocence. By not putting the evidence which appeared against him, the appellant has been deprived of the opportunity to explain the circumstances leading to the alleged incident. The learned Amicus Curiae also submits during the examination of the appellant under Section 313 Cr.PC, he was not asked as to whether he wanted to produce any witnesses in his defense. Such being the position, the impugned conviction and sentence imposed upon the appellant is vitiated and should be set aside. The learned Amicus Curiae also submits during the examination of the appellant under Section 313 Cr.PC, he was not asked as to whether he wanted to produce any witnesses in his defense. Such being the position, the impugned conviction and sentence imposed upon the appellant is vitiated and should be set aside. In support of his submission, the learned counsel relies upon the following decisions:- (1) Reena Hazarika Vs. State of Assam (2019) 13 SCC 289 and (2) Paramjeet Singh Alias Pamma Vs. State Uttarakhand (2010) 10 SCC 439 . [6.] Per contra, Ms. Mary L. Khiangte, learned Addl. Public Prosecutor submits that not only Section 9 (m) of the POCSO Act is attracted in the instant case but also Section 9 (n) as well since the appellant shared the household where the victim was living with her father and her other sibling. She submits that PW-1 is the informant and mother of the victim while PW-2 is the victim herself and PW-10, the case I/O. The versions of all the three (3) witnesses corroborate with each other and therefore, there cannot be any doubt about the consistency of the narration made by the victim. She submits that although the learned Amicus Curiae has tried to project that there is some sort of enmity between the families but however, no suggestion even remotely has been made from any quarters that there was some enmity between the parties concerned and even between the mother and father of the victim, who had already separated at an earlier point of time. The learned Addl. Public Prosecutor submits that the evidence of PW-10 who is the case I/O both in her examination-in-chief as well in her cross-examination clearly establishes the fact that the appellant touched the private part of the victim and also made her touch his penis. Such being the case, the conviction of the appellant and the sentence imposed upon him under Section 10 of the POCSO Act is very much sustainable. [7.] Mr. C. Tlanthianghlima, learned Legal Aid Counsel for the respondent No. 2 submits that he adopts the arguments of the learned Addl. Public Prosecutor. Such being the case, the conviction of the appellant and the sentence imposed upon him under Section 10 of the POCSO Act is very much sustainable. [7.] Mr. C. Tlanthianghlima, learned Legal Aid Counsel for the respondent No. 2 submits that he adopts the arguments of the learned Addl. Public Prosecutor. He further submits that going by the definition of sexual assault under Section 7 of the POCSO Act, the said Section is attracted when a person with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration. In the present case, the appellant may have only made the victim touch the private or he may have only touched the private part of the victim. Either way, the acts amount to sexual assault as defined under Section 7 of the POCSO Act. Since, the victim was underage, the provision of Section 9 (m) is attracted and therefore, the appellant was rightly convicted and sentenced under Section 10 of the POCSO Act. He further submits the appellant was given due opportunity to explain the circumstances leading to the alleged offence during his examination under Section 313 Cr.PC by putting across to him the evidence appearing against him. However, the appellant offered no explanation and plainly denied of having committed any offence. Since a conviction or an acquittal cannot be made solely by depending upon the questions and the reply made under Section 313 Cr.PC, the appellant cannot have any legitimate grievance with his examination under Section 313 Cr.PC. He thus submits that the appeal has no merit and the same should be dismissed. [8.] I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. [9.] PW-8, who is the friend of the victim in her examination-in-chief stated that she lived in the nearby neighbourhood and one day while she was playing with the victim, she told her that the appellant came to her bed while she was sleeping and he had touched her. Although the victim told her not to tell anyone, PW-8 informed her mother. Although the victim told her not to tell anyone, PW-8 informed her mother. PW-7, who is the mother of PW-8 in her examination-in-chief stated that upon being told by her daughter what the victim had said to her, she asked the victim to come to their house on the same night and asked her what had happened to her. The victim told her that the appellant had come to her bed where she was sleeping and took out his private part and asked her to touch it. He also asked her whether she would allow him to put his private part inside hers and to which, she objected. According to PW-7, on hearing this, she immediately telephoned the victim’s mother and asked her to come over. When the victim’s mother came, she told her what the victim has said to her. [10.] The mother of the victim who is also the informant was examined as PW-1. In her examination-in-chief, she stated that the incident happened in the month of January, 2020. The appellant had threatened the victim not to tell anybody about what had happened. She and her husband were divorced since 2018 and their two (2) children were staying with their father. It was during this time that the incident had occurred in the residence of her divorced husband. She further stated that she came to know about the incident on 09.07.2020 when one of the neighbour (PW-7) had called her up over phone stating that there was something important to be said to her. She immediately went to the resident of PW-7 where she was informed about incident. She then went and asked her daughter what had happened and to which she replied that the appellant had once asked her to sleep with him and he touched her private part and even asked her to touch his. He also asked her as to whether she would permit him to insert his private part to hers and to which she refused. The appellant then stated that they could do it some other day. PW-1 then immediately lodged the FIR on 14.07.2020. PW-1 exhibited the FIR, her signature, 164 statements of the victim and the original Birth Certificate of the victim. The appellant then stated that they could do it some other day. PW-1 then immediately lodged the FIR on 14.07.2020. PW-1 exhibited the FIR, her signature, 164 statements of the victim and the original Birth Certificate of the victim. [11.] PW-2, who is the victim in her examination-in-chief stated that the incident happened sometime in the month of January/February, 2020 and during the daytime while her father was away. On that particular day, she went home from school, changed her uniform and went out to meet her friends. Soon thereafter, she came back home and found the appellant lying on the long chair watching T.V. She too began watching the T.V from another chair. The appellant then asked her to switch off the light and to lock the door. He then asked her to sleep with him on the long chair. Although she refused but since the appellant insisted again and again she went to him and sat beside him in the long chair. She believed that he would not commit any immoral act towards her as he was her father’s friend. However after a while, the appellant started touching her body, her belly, thigh, breast etc. He told her not be afraid and asked her to change her pants and wear a skirt. When she came back, he started to touch her private part. He asked her whether she could bear it if he inserts his penis to her private part and to which, she objected. He said that they can do it some other day and asked her not to tell anybody about it. He asked her to sleep with him at night and told her to wear her skirt again and not to wear underwear. Since she was afraid of him, she spent the night in the neighbour’s house. [12.] The next day being a Saturday and therefore she was not required to go to school, she did not go home. However, her brother came calling her and when she went home, she went straight to the kitchen to brush her teeth. The accused then came to her and hugged her from behind and asked her why she did not spent the night at home but she did not reply. PW-2 stated that the appellant asked him not to say anything to anybody and that he could help her father. The accused then came to her and hugged her from behind and asked her why she did not spent the night at home but she did not reply. PW-2 stated that the appellant asked him not to say anything to anybody and that he could help her father. He also stated that he could not be arrested by the police as he was a teacher. PW-2 stated that she believed the appellant and as she was afraid, she did not tell her relatives until they asked her personally. [13.] It may be seen that the evidence of PW-2 is clearly corroborated by the evidence of PW-1 and likewise, with that of PW-10, who is the case I/O. PW-10 in her examination-in-chief stated that from the investigation conducted by her it was clearly revealed that the appellant had actually touched the private part of the victim and also made the victim touch his. He even took off his pants during the process. In her cross- examination, she stated that during her investigation, she did a fair amount of interrogation with the appellant and the appellant admitted of having committed the crime. It is further noticed that the victim had also narrated about the incident in her statement under 164 Cr.PC wherein, she stated that the appellant was lying down on the couch and invited her to sleep near him. When she lay next to him, he started touching her stomach and between her thigh/legs and said that she should not be afraid of him. After a little while, the appellant asked her whether she would permit him to insert his penis into her private part and to which, she refused. The other narration which followed thereafter are only similar to what the victim had stated in her examination-in-chief during the trial. [14.] As already stated in preceding paragraphs, touching of vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person with sexual intent is the ingredient for commission of sexual assault under Section 7 of the POCSO Act. Under Section 9 (m) of the POCSO Act, the person is said to have committed aggravated sexual assault if the sexual assault is committed on a child below 12 years. Under Section 9 (m) of the POCSO Act, the person is said to have committed aggravated sexual assault if the sexual assault is committed on a child below 12 years. Section 9 (n) further provides that whoever being a relative of a child through blood or adoption or marriage or guardianship or in foster care, or having domestic relationship with the parent of the child, or who is living in the same or shared household with the child, commits sexual assault on such child is said to have committed aggravated sexual assault. [15.] In the present case, there is no dispute to the fact that the appellant was a guest staying in the house where the victim, her sibling and her father resided. The version of the victim is corroborated by the other prosecution witnesses more particularly PW-1, PW-7 and PW-8 including her own 164 statements which therefore clearly establish the fact that the appellant had committed aggravated sexual assault upon the victim and thereby attracting a punishment under Section 10 of the POCSO Act. Although it has been argued on behalf of the appellant that the appellant had been deprived of the opportunity to explain the circumstances leading to the incident since the evidence led by the prosecution against him had not been put across to him, it may however be seen that whatever question had been put to the appellant was replied back with a plain denial. Against the last question put to him as to whether he had anything to say before the Court, the appellant stated that he did not touch the victim and as the alleged incident occurred during daytime and that all the allegations in the FIR against him was wrong. Although the appellant was not asked as to whether he touched the private part of the victim but he himself stated that the he did not touch the victim. The question as to whether he let the victim touch his penis was already asked and to which he denied having done so. [16.] The case of Paramjeet Singh Alias Pamma (supra) and the case of Reena Hazarika (supra) in the given facts and circumstances of the present case is found to be not applicable since the appellant made no attempt to make any explanation on the questions put to him except respond with a plain denial. [16.] The case of Paramjeet Singh Alias Pamma (supra) and the case of Reena Hazarika (supra) in the given facts and circumstances of the present case is found to be not applicable since the appellant made no attempt to make any explanation on the questions put to him except respond with a plain denial. As may be noticed, he simply denied of having made the victim touch his penis or him having touched the victim’s private part. There is also no dispute with regard to the age of the victim at any stage of the investigation or during the trial. Thus, upon an overall consideration of the materials available on record, I do not find any grounds to interfere with the impugned Judgment & Order of conviction and sentence imposed upon the appellant. In other words, the appeal is found to be without any merit and the same is accordingly dismissed. [17.] For the assistance rendered by Mr. Jonathan L. Sailo, the learned Amicus Curiae, the Mizoram State Legal Services Authority shall pay him fees as applicable.