Research › Search › Judgment

Gauhati High Court · body

2025 DIGILAW 1887 (GAU)

Rengsibula S/o Zathianga(L) v. State of Mizoram

2025-11-19

MARLI VANKUNG, SANJEEV KUMAR SHARMA

body2025
JUDGMENT AND ORDER : (Sanjeev Kumar Sharma, J.) Heard Mr. T. Lalzekima, learned counsel for the appellant. Also heard Mrs. Linda L. Fambawl, learned Public Prosecutor for the State respondent and Mrs. Emily. L. Chhangte, learned Legal Aid Counsel for the respondent No.2 2. This appeal is directed against the Final Judgment dated 19.12.2024, passed by the Court of the Learned Presiding Officer, Fast Track Court (Rape and Protection of Children from Sexual Offence) Act, Aizwal in Sessions case No. 30/2022 arising out of Crl. Trial No. 424/2022 with reference to All Women P.S. Case No. 5/2022 convicting the Accused/Appellant under Section 12,10 and 6 of the Projection of Children from Sexual offences Act, 2012 (hereinafter referred to as “POCSO Act”). 3. A written complaint was lodged by the informant stating that her younger sister ‘X’ who stayed with her step father/accused/appellant from August, 2012 to June, 2013 was subjected to sexual intercourse by the accused appellant several times, at his residence at Melthum when the victim was only nine years of age. 4. Upon receipt of the F.I.R, All Women P.S. Case No. 05/2022 was registered under Section 6 of the POCSO Act r/w Section 376(2)(i)(n) of IPC and in course of investigation the I.O. has examined the victim as well as the other witnesses and on completion thereof submitted that the charge-sheet against accused/appellant and the learned Court below framed charges under Section 6 of the POCSO Act. In course of the trial the prosecution examined 8 nos. of witnesses. The accused was examined under section 313 of Cr.P.C. Defence adduced the evidence of two witnesses. On completion of the trial the learned trial Court convicted and sentenced the accused as above. 5. We have heard Mr. T. Lalzekima, learned counsel for the appellant, Mrs. Linda L. Fambawl, learned Public Prosecutor for the State respondent and also Mrs. Emily. L. Chhangte, learned Legal Aid Counsel appearing for the respondent No.2. 6. We do not propose to discuss the evidence on record for reasons that shall unfold in course of this judgment. 7. Section 354 Cr.P.C reads as follows:- “354. Linda L. Fambawl, learned Public Prosecutor for the State respondent and also Mrs. Emily. L. Chhangte, learned Legal Aid Counsel appearing for the respondent No.2. 6. We do not propose to discuss the evidence on record for reasons that shall unfold in course of this judgment. 7. Section 354 Cr.P.C reads as follows:- “354. Language and contents of judgment.—(1) Except as otherwise expressly provided by this Code, every judgment referred to in section 353,— (a) shall be written in the language of the Court; (b) shall contain the point or points for determination, the decision thereon and the reasons for the decision; (c) shall specify the offence (if any) of which, and the section of the Indian Penal Code (45 of 1860) or other law under which, the accused is convicted and the punishment to which he is sentenced; (d) if it be a judgment of acquittal, shall state the offence of which the accused is acquitted and direct that he be set at liberty.” 8. A perusal of the Judgment would reveal that no point or points for determination was/were formulated by the learned trial Court, but that is not all. What we find is that the learned trial Court has elaborately reproduced the evidence of the prosecution witnesses but has failed to foresent any discussion whatsoever of the prosecution evidence adduced through as many as eight witnesses and neither has any reason been assigned for the decision arrived at by the learned trial Court. Although two witnesses i.e. D.W. 1 & 2 were examined by the defence, their depositions have not been brought on record in the impugned judgment and their testimonies have been discarded without discussing what the said D.W.s have deposed. The learned trial Court straight away held as follows:- “13. After the accused Rengsibula was examined as per the provision of section 313 of the Criminal Procedure Code, 1973 on 12" February, 2024, the learned counsel of the accused prayed to this Court for hearing of the defence witnesses and her prayer was allowed. As the learned counsel of the accused could not bring defence witness she prayed for adjournment of the Court a number of times. On 12th June, 2024, one defence witness, namely Zothanpuii who is a daughter in law of the accused was brought and her statement was recorded in writing. As the learned counsel of the accused could not bring defence witness she prayed for adjournment of the Court a number of times. On 12th June, 2024, one defence witness, namely Zothanpuii who is a daughter in law of the accused was brought and her statement was recorded in writing. As the learned counsel of the accused prayed to bring another defence Witness, one more defence witness named Lalhmangaihzuala, son of the accused was brought on 8th August, 2024 and his statement were recorded in writing. However, since the accused has a separate room and it is impossible to see everything going on in the bedroom of the accused and since the defence witnesses left the house even during daytime and they did not listen everything going on in the bedroom of the accused and moreover, sexual intercourse are done normally in the absence of another person or beyond the sight of another person, their statement are not convincing and unacceptable (sic) at all.” 9. Thereafter the learned trial Court merely stated that the arguments of the learned counsel for the accused and learned Special Public Prosecutor have been heard and that the written arguments submitted on behalf of the accused have been gone through and thereafter, held as follows:- “15. We shall come to the judgment now. On perusal of the case record meticulously, it is found that the accused had committed three separate offences under the POCSO Act, 2012. First of all, he had committed an offence of sexual harassment as per clause(i) of section 11 of the POCSO Act, 2012 as he had exhibited a number of times pornographic films to the victim which is punishable under section 12 of the Act. Secondly, the accused had also committed an aggravated sexual assault without penetration as per clause(m) of section 9 as he pushed his penis to the anus of the victim which is punishable under section 10 and thirdly, an offence of aggravated penetrative sexual assault which is punishable under section 6 of the said Act. In view of precise commission of the offences committed by the accused, the charge framed against him need conversion. Therefore, the charge framed on 25th April, 2022 is converted as follows. For the words and figures "charge u/s 6 of POCSO Act R/w 376(2)(i)(n) IPC" the words and figures "charge under sections 6, 10 and 12 of POCSO Act" are substituted. Therefore, the charge framed on 25th April, 2022 is converted as follows. For the words and figures "charge u/s 6 of POCSO Act R/w 376(2)(i)(n) IPC" the words and figures "charge under sections 6, 10 and 12 of POCSO Act" are substituted. In the case of Om Prakash vrs the State of Uttar Pradesh reported in 2006 Cri.LJ.2913 (SC), their Lordships in the Supreme Court held that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case, even if a doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course, a victim of sexual assault does not like to disclose such offence even before her family members much less such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members have courage to go before the Police Station and lodge a case. In the present case, the accused had threatened the victim with dire consequences if she disclose the incident to anyone else. It appears that the accused told her that if she tell the incident to anyone person, he will kill her, her elder sister and her mother and if he go to jail, he will not spend time more than ten years in the prison and as such the victim dare not mentioned the incident happened to her but after she came of age, she collected her courage and disclosed the incident to her elder sister in the presence of her mother and that had caused delay in the lodging of a complaint to the Police Station. 16. Under the circumstances in the foregoing paragraphs I am therefore constrained to convict the accused Rengsibula to have committed an offence of sexual harassment, aggravated sexual assault without penetration and aggravated penetrative sexual assault which are punishable under section 12, section 10 and section 6 respectively and as such I convict him accordingly.” 10. 16. Under the circumstances in the foregoing paragraphs I am therefore constrained to convict the accused Rengsibula to have committed an offence of sexual harassment, aggravated sexual assault without penetration and aggravated penetrative sexual assault which are punishable under section 12, section 10 and section 6 respectively and as such I convict him accordingly.” 10. It is evident from the above that without semblance of discussion of the appreciation of the evidence on record or indicating or providing any logical narrative as to how the evidence so recorded establishes the guilt of the accused, the learned Court below proceeded to convict the accused not only under the Section under which he was originally charged i.e. Section 6 of the POCSO Act, but also added two other Sections namely, Sections 10 & 12 of the POCSO Act in the course of the judgment and convicted him thereunder as well. 11. It hardly needs to be emphasized that a Court of law deciding the rights of parties are duly bound to assign reasons for their decisions. In a case of the present nature entailing such severe penal consequences, it is imperative that cogent and sufficient reasons are assigned by the learned trial Court, with reference to the evidence on record, before holding that person guilty of the offence with which he is charged. In fact, the same is necessary even in case the Court is of the view that the accused deserves an acquittal but we are anguished to note that the learned trial Court has miserably failed in its duty to adhere to the most basic principles of deciding a case, the observance of which must necessarily find reflection in the judgment, by which the decision of the Court is conveyed to the accused and as well as to the victim and the public at a large. 12. In addition to the above, the learned Court completely lost sight of the provisions of Section 216 Cr.P.C which empowers the Court to alter and add any charge at any time before judgment is pronounced, but with the stipulation as contained in Sub-Section 2 thereof that every such alteration and addition shall be read and explained to the accused. There is nothing on record to show that the accused had been read and explained the additional charges under Sections 10 & 12 of the POCSO Act. There is nothing on record to show that the accused had been read and explained the additional charges under Sections 10 & 12 of the POCSO Act. Furthermore Section 217 Cr.P.C provides as follows:- “217. Recall of witnesses when charge altered.—Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed— (a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice; (b) also to call any further witness whom the Court may think to be material.” 13. It transpires from the record that no such opportunity to recall and re- summon and examine any such witnesses as described in the aforesaid provision of law was granted to the accused and neither has any reason been recorded in writing for dispensing with such a step for the reasons stated in Section 217(a). It is pertinent to note herein that after having added fresh charges under Sections 10 & 12 of the POCSO Act, in the course of the judgment, the learned trial Court not only convicted the accused under the newly added charges, but also directed the sentences imposed thereunder to run consecutively, which direction renders the transgressions aforementioned even more consequential. 14. For the reasons aforesaid, we have no hesitation in holding that the appellant/accused has been greatly prejudiced in his defence and a miscarriage of justice has been caused by the flagrant violations of the provisions of the procedural law mandated by the Code of Criminal Procedure. 15. Accordingly, we set aside the impugned judgment and sentenced and issue the following directions:- i) The case be remanded for proceeding afresh from the point of conclusion of defense evidence. 15. Accordingly, we set aside the impugned judgment and sentenced and issue the following directions:- i) The case be remanded for proceeding afresh from the point of conclusion of defense evidence. In case the learned trial Court is of the view that additional fresh charges are required to be added, the same shall be done by following the procedure laid down in Section 216 and 217 Cr.P.C. ii) Thereafter, the learned trial Court shall hear the arguments afresh and pass a reasoned judgment by formulating points for determination and assigning the cogent reasons for the decision in conformity with Section 354 Cr.P.C. 16. The appeal stands allowed with the aforesaid directions. Needless, to say that the accused/appellant shall remain in custody till delivery of judgment afresh, unless granted bail otherwise. 17. Send back the TCR.