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2025 DIGILAW 250 (GAU)

Vanhreluaia S/o Tialchhawna v. State of Mizoram

2025-02-14

KAUSHIK GOSWAMI, MICHAEL ZOTHANKHUMA

body2025
JUDGMENT : Kaushik Goswami, J. Heard Mr. C. Tlanthianghlima, learned Amicus Curiae for the accused/appellant. Also heard Ms. Vanneihsiami, learned Addl. Public Prosecutor for the respondent No. 1 and Mr. Lalramdinthara, learned Legal Aid Counsel for the respondent No. 2, who is the mother of the victim girl. 2. This Jail Appeal is presented against the Judgment & Sentence Order dated 25.08.2023 passed by the learned Special Judge, POCSO Act, Champhai in Sessions Registration Case No. 88/2018 on 31.07.2024, whereby the accused/appellant was convicted under Section 6 of the Prevention of Children under Sexual Offences Act, 2012 (hereinafter to be referred as “POCSO Act, 2012”) and sentenced to undergo Rigorous Imprisonment for a period of 20 years and to pay a fine of Rs. 10,000/- (Rupees Ten Thousand) with a default clause. 3. The brief facts of the case is that upon receipt of an FIR on 23.06.2019 lodged by the respondent No. 2 i.e. (the mother of the victim) informing inter- alia that on 23.06.2019, the accused/appellant between 2:00 to 3:00 p.m. took her daughter aging about 5 years behind Champhai Dinthar Veng Sub-Centre where he touched and sucked her private parts, a case was registered being CPI PS Case No. 63/19 under Section 10 of the POCSO Act, 2012. Thereafter, the matter was investigated and upon charge-sheet being filed, the learned Special Judge, POCSO Act, Champhai (hereinafter to be referred as “Trial Court”) framed charge under Section 6 of the POCSO Act, 2012 against the accused/appellant. Thereafter, trial commenced, wherein the prosecution submitted a list of 9 witnesses as Prosecution Witnesses. The listed 9 Prosecution Witnesses are as hereunder:- 1 PW-1 Lalrinthari Complainant 2 PW-2 Lalrochhari Seizure Witness 3 PW-3 R.Lalbiakmawii Seizure Witness 4 PW-4 Withheld Victim 5 PW-5 Tungdeihsiana Witness 6 PW-6 Nangzachina Witness 7 PW-7 Chiangmuanzovi Witness 8 PW-8 SI Liansangpuii Case IO 9 PW-9 Timothy Lalruatfela Witness The accused/appellant did not adduce evidence except explaining the situation during examination under Section 313 of the Code of Criminal Procedure, 1974 (hereinafter to be referred as “Cr.PC”). 4. Mr. C. Tlanthianghlima, learned Amicus Curiae submits that the accused/appellant has been wrongly convicted under Section 6 of the POCSO Act, 2012 as there is no evidence of any degree of penetration or insertion whatsoever in the vagina of the victim. He accordingly submits that the impugned conviction warrants interference from this Court. 5. Per contra, Ms. 4. Mr. C. Tlanthianghlima, learned Amicus Curiae submits that the accused/appellant has been wrongly convicted under Section 6 of the POCSO Act, 2012 as there is no evidence of any degree of penetration or insertion whatsoever in the vagina of the victim. He accordingly submits that the impugned conviction warrants interference from this Court. 5. Per contra, Ms. Vanneihsiami, learned Addl. Public Prosecutor submits that there is evidence indicating that the accused/appellant has touched the private parts of the victim and hence, the appeal is liable to be dismissed. 6. Similarly, Mr. Lalramdinthara, learned Legal Aid Counsel for the respondent No. 2 submits that it is established beyond reasonable doubt that the accused/appellant has committed the charged offence and hence, no interference is called for. 7. We have given our prudent consideration to the arguments advanced by the learned counsels for the contending parties and have perused the materials available on record. 8. During the course of trial, out of the 9 Prosecution Witnesses, the prosecution witnessed only 7 witnesses and further exhibited 17 numbers of documents. 9. PW-1, Lalrinthari, who is the mother of the victim deposed that on 23.06.2019, the victim came running to her and said that the accused/appellant had taken her near the Sub-Centre building where he sexually molested her by laying his hand upon the accused/appellant. She further deposed that she accordingly went to the Police Station and reported the said incident. She further deposed that the victim was taken to District Hospital Champhai for medical examination and that she was told that the victim suffered from minor injury on her vagina. 10. During cross-examination, she clarified that the accused/appellant is a friend of her from her husband. 11. PW-2, Lalrochhari is a seizure witness, who testified the seizure of the Birth Certificate of the victim. 12. PW-3, R. Lalbiakmawii is a hearsay witness, who deposed that the victim was crying near the Sub-Centre building at Dinthar and few children after seeing her crying, called some adults. She further deposed that when the children saw her, her clothes were already removed by the accused/appellant. 13. PW-4, X is the victim herself, who deposed that the accused/appellant had taken her near the Sub-Centre where he removed her pants and touched her vagina and that she cried as it was hurting. 14. She further deposed that when the children saw her, her clothes were already removed by the accused/appellant. 13. PW-4, X is the victim herself, who deposed that the accused/appellant had taken her near the Sub-Centre where he removed her pants and touched her vagina and that she cried as it was hurting. 14. During cross-examination, she clarified that she was scared of the accused/appellant as he does not take good care of her. 15. PW-7, Chiangmuanzovi deposed that on 23.06.2019 at around 3:00p.m, her younger brother and his friends came to her house and told them about the incident after which, she alongwith her brother proceeded to the place of occurrence. She further deposed that she saw the victim lying on the ground with her pant pulled down at the half of her leg and that she was crying. 16. During cross-examination, she clarified that she saw the pants of the victim pulled down at the half of her thigh. 17. PW-8, Liansangpuii, who is the Investigating Officer in the case deposed that upon receipt of FIR on 23.06.2019, a case was registered and accordingly, she took up the investigation. She further deposed that she examined the witnesses alongwith the complainant and the victim and the accused/appellant. She further deposed that she forwarded the victim to District Hospital Champhai for medical examination and that after examination, the report reveals that the hymen of the victim is intact but there were multiple red spots around her vagina. She further deposed that she forwarded the victim for recording her judicial statement and after completing the investigation, she submitted charge-sheet against the accused/appellant. 18. PW-9, Timothy Lalruatfela deposed that on 23.06.2019 while they were playing, he saw the accused/appellant pulling down the pants of the victim and thereafter lying upon her by closing her mouth. He further deposed that they told the accused/appellant to get up but when he refused, they beat him. He further deposed that they informed the incident to the others. 19. During cross-examination, he clarified that he did not see the accused/appellant assaulting or acting in a sexual manner upon the victim. He further clarifiedthat he did not see the accused/appellant pulling out his private parts at the time of the incident. He further clarified that he saw the pants of the victim being pulled down at the half of her thigh. 20. He further clarifiedthat he did not see the accused/appellant pulling out his private parts at the time of the incident. He further clarified that he saw the pants of the victim being pulled down at the half of her thigh. 20. Upon the aforesaid incriminating circumstances being put to the accused/appellant under Section 313 Cr.PC, he generally denied the same and explained as hereunder:- “The victim is not a stranger to me, she is the child of a friend. One day I was drinking liquor and I was drunk and made the victim sit on my lap. I then carried her out and since I was drunk I fell down while holding her. As I was on top of her people assumed that I had raped her.” 21. From the aforesaid evidence, it is clearly established that the accused/appellant had touched the vagina of the victim. The testimony of the victim is supported by her mother PW-1 (Lalrinthari) and PW-9 (Timothy Lalruatfela). PW-1 corroborated the fact that the victim came running to her and narrated the incident. PW-9 also corroborated that the accused/appellant pulled the pants of the victim and thereafter lied on top of her. That apart, it appears that the victim has deposed during her evidence that while the accused/appellant had touched her vagina, it was hurting. It further appears from the testimony of PW-8 (I.O) that the medical examination reveals the presence of multiple red spots around her vagina. The above surrounding circumstances makes the testimony of the victim believable and trustworthy and therefore, is sufficient to be acted upon. We are, therefore, of the unhesitant view that the accused/appellant is guilty under the provisions of the POCSO Act, 2012. In the present case, the accused/appellant was convicted under Section 6 of the POCSO Act, 2012. 22. Apt to refer to the relevant provisions of the POCSO Act, 2012. Section 3 describes penetrative sexual assault as hereunder: “ 3. Penetrative sexual assault. In the present case, the accused/appellant was convicted under Section 6 of the POCSO Act, 2012. 22. Apt to refer to the relevant provisions of the POCSO Act, 2012. Section 3 describes penetrative sexual assault as hereunder: “ 3. Penetrative sexual assault. —A person is said to commit “penetrative sexual assault” if— (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.” 23. Further, Section 5 (m) of the POCSO Act, 2012 provides that whoever commits penetrative sexual assault on a child below twelve years is said to commit aggravated penetrative sexual assault. 24. Section 6 of the POCSO Act, 2012, which provides for punishment for aggravated penetrative sexual assault is extracted hereunder for ready reference:- “ 6. Punishment for aggravated penetrative sexual assault.— (1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death. (2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.” 25. In order to attract Section 6 of the POCSO Act, 2012, it is imperative to establish that there has been penetration or insertion of either the penis or any object or any part of the body to any extent whatsoever. In order to attract Section 6 of the POCSO Act, 2012, it is imperative to establish that there has been penetration or insertion of either the penis or any object or any part of the body to any extent whatsoever. In other words, slightest degree of either penetration and or insertion as stated above, is sufficient to bring home the charge under Section 6 of the POCSO Act, 2012. However, in the present case, there is no evidence whatsoever indicating that the accused/appellant had penetrated or inserted or attempted to insert his penis or any object or any other part of his body except his penis in the vagina of the victim and therefore, no offence under Section 6 of the POCSO Act, 2012 is made out. 26. Reading of the evidence of the prosecutrix apparent that the prosecutrix has clearly stated in her evidence that the accused/appellant has touched her private parts. Section 7 of the POCSO Act, 2012 provides as hereunder:- “ 7. Sexual assault. —Whoever, 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 is said to commit sexual assault.” 27. Section 9 & 10 of the POCSO Act, 2012 are extracted hereunder for ready reference:- “ 9. Aggravated sexual assault. Section 9 & 10 of the POCSO Act, 2012 are extracted hereunder for ready reference:- “ 9. Aggravated sexual assault. —(a) Whoever, being a police officer, commits sexual assault on a child— (i) within the limits of the police station or premises where he is appointed; or (ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or (iii) in the course of his duties or otherwise; or (iv) where he is known as, or identified as a police officer; or (b) whoever, being a member of the armed forces or security forces, commits sexual assault on a child— (i) within the limits of the area to which the person is deployed; or (ii) in any areas under the command of the security or armed forces; or (iii) in the course of his duties or otherwise; or (iv) where he is known or identified as a member of the security or armed forces; or (c) whoever being a public servant commits sexual assault on a child; or (d) whoever being on the management or on the staff of a jail, or remand home or protection home or observation home, or other place of custody or care and protection established by or under any law for the time being in force commits sexual assault on a child being inmate of such jail or remand home or protection home or observation home or other place of custody or care and protection; or (e) whoever being on the management or staff of a hospital, whether Government or private, commits sexual assault on a child in that hospital; or (f) whoever being on the management or staff of an educational institution or religious institution, commits sexual assault on a child in that institution; or (g) whoever commits gang sexual assault on a child. Explanation.—when a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each of such persons shall be deemed to have committed gang sexual assault within the meaning of this clause and each of such person shall be liable for that act in the same manner as if it were done by him alone; or (h) whoever commits sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance; or (i) whoever commits sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or (j) whoever commits sexual assault on a child, which— (i) physically incapacitates the child or causes the child to become mentally ill as defined under clause (l) of section 2of the Mental Health Act, 1987 (14 of 1987) or causes impairment of any kind so as to render the child unable to perform regular tasks, temporarily or permanently; or (ii) inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or infection which may either temporarily or permanently impair the child by rendering him physically incapacitated, or mentally ill to perform regular tasks; or (k) whoever, taking advantage of a child’s mental or physical disability, commits sexual assault on the child; or (l) whoever commits sexual assault on the child more than once or repeatedly; or (m) whoever commits sexual assault on a child below twelve years; or (n) whoever, being a relative of the child through blood or adoption or marriage or guardianship or in foster care, or having domestic relationship with a parent of the child, or who is living in the same or shared household with the child, commits sexual assault on such child; or (o) whoever, being in the ownership or management or staff, of any institution providing services to the child, commits sexual assault on the child in such institution; or (p) whoever, being in a position of trust or authority of a child, commits sexual assault on the child in an institution or home of the child or anywhere else; or (q) whoever commits sexual assault on a child knowing the child is pregnant; or (r) whoever commits sexual assault on a child and attempts to murder the child; or (s) whoever commits sexual assault on a child in the course of [communal or sectarian violence or during any natural calamity or in any similar situations]; or (t) whoever commits sexual assault on a child and who has been previously convicted of having committed any offence under this Act or any sexual offence punishable under any other law for the time being in force; or (u) whoever commits sexual assault on a child and makes the child to strip or parade naked in public; (v) whoever persuades, induces, entices or coerces a child to get administered or administers or direct anyone to administer, help in getting administered any drug or hormone or any chemical substance, to a child with the intent that such child attains early sexual maturity, is said to commit aggravated sexual assault. 10. Punishment for aggravated sexual assault. —Whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.” 28. Apparent reading of the aforesaid provisions of law that under Section 7 of the POCSO Act, 2012, in the event one touches the vagina of a child, the same is sufficient to be said to have committed the offence of sexual assault. Thus, in the present case, though the offence is not made out under Section 6, however, the same is clearly made out under Section 7. Further, the victim being 5 years old, the offence is aggravated sexual assault under sub-section (m) of Section 9 for which punishment is provided under Section 10. 29. Apt at this juncture to refer to the powers of the Appellate Court as provided under Section 427 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter to be referred as “ BNSS , 2023”), which is extracted hereunder for ready reference:- “ 427. Powers of the Appellate Court. 29. Apt at this juncture to refer to the powers of the Appellate Court as provided under Section 427 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter to be referred as “ BNSS , 2023”), which is extracted hereunder for ready reference:- “ 427. Powers of the Appellate Court. —After perusing such record and hearing the appellant or his advocate, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under section 418 or section 419, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may— (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction— (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same— (c) in an appeal for enhancement of sentence— (i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or (ii) alter the finding maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same; (d) in an appeal from any other order, alter or reverse such order; (e) make any amendment or any consequential or incidental order that may be just or proper: Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.” 30. Apparent that Section 427 (b)(iii) of the BNSS , 2023 provides that in an appeal from a conviction, the Appellate Court has the jurisdiction and power to alter the nature or the extent or the nature and extent of the sentence, with or without altering the finding, but not so as to enhance the same. 31. In view of the discussions made above and reasons stated in the foregoing paragraphs, we are of the considered opinion that there are materials available on record to show that the accused/appellant had committed the offence of aggravated sexual assault on the victim, however, the evidence falls short of suggesting, beyond reasonable doubt that the accused/appellant had committed aggravated penetrative sexual assault on the victim. Hence, the conviction of the appellant under Section 6 of the POCSO Act, 2012 is hereby converted into conviction under Section 10 of the POCSO Act, 2012 and the accused/appellant is sentenced to undergo Rigorous Imprisonment for a period of 5 years and to pay a fine of Rs. 2,000/- (Rupees Two Thousand) and in default of payment of fine to undergo further Simple Imprisonment for another period of 2 (two) months. 32. Sentenced accordingly. 33. Resultantly, the appeal stands disposed of. 34. This Court appreciates the services rendered by the learned Amicus Curiae and the learned Legal Aid Counsel and accordingly, their requisite fees are to be paid by the State Legal Services Authority as per existing rates. 35. Send back the Trial Court Record alongwith a copy of this Judgment.