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2025 DIGILAW 252 (GAU)

Zothansanga Darnam v. State of Mizoram

2025-02-14

KAUSHIK GOSWAMI, MICHAEL ZOTHANKHUMA

body2025
JUDGMENT Michael Zothankhuma, J. Heard Mr. K. Remruatfela, learned counsel for the appellant. Also heard Ms. Vanneihsiami, learned Addl. Public Prosecutor for the State respondent and Mr. C. Tlanthianghlima, learned Amicus Curiae for the respondent No. 2. [2.] This is an appeal against the Judgment & Order dated 29.08.2024 passed by the Court of the Presiding Officer, Fast Track Special Court, POCSO Act , 2012, Aizawl in Sessions Case No. 60 of 2022 arising out of Criminal Trial No. 713 of 2022, by which the appellant has been convicted under Section 6 of the POCSO Act , 2012 and sentenced to undergo Rigorous Imprisonment for a period of 20 years and to pay a fine of Rs. 2,000/-, in default to suffer Rigorous Imprisonment for a period of three (3) months. [3.] The prosecution case in brief is that an FIR was submitted by the informant (PW-1), who is the mother of the victim girl on 14.02.2022, before the Officer-in- Charge, Serchhip Police Station. The FIR stated that during the year ending 2017, the daughter of the informant had been raped by the appellant at night in their house at Darnam village. The FIR also stated that the victim was only 11 years of age at that time and the appellant had slept with her more than ten (10) times since then. The last time the appellant slept with the victim was in December, 2021, just before Christmas. The victim girl was afraid of telling the informant what had happened to her, since the appellant had threatened to kill her, if she disclosed the rape. However, the victim told her boyfriend Zohmangaiha who was 19 years of age, about the incident and when Zohmangaiha came from Lunglei on 12.02.2022, he informed the informant about the same. Pursuant to the FIR, Serchhip P.S Case No. 14/2022 dated 14.02.2022 was registered under Section 6 of the POCSO Act . The S.I of police thereafter started the investigation and had the victim and the appellant, both examined by medical doctors. The victim’s statement under Section 164 Cr.PC was also recorded on 29.03.2022. After taking the statements of the witnesses the I/O filed the charge sheet, on the ground that a prima facie case was found established under Section 6 of the POCSO Act against the appellant. The victim’s statement under Section 164 Cr.PC was also recorded on 29.03.2022. After taking the statements of the witnesses the I/O filed the charge sheet, on the ground that a prima facie case was found established under Section 6 of the POCSO Act against the appellant. [4.] The learned Trial Court thereafter framed charge under Section 6 of the POCSO Act , 2012 against the appellant, to which the appellant pleaded not guilty and claimed to be tried. The learned Trial Court thereafter examined seven (7) prosecution witnesses. The appellant was also examined under Section 313 Cr.PC and the learned Trial Court having come to a finding that the appellant had committed the offense under Section 5 (m) of the POCSO Act , 2012, the appellant was convicted under Section 6 of the POCSO Act and sentenced, as reflected in the earlier part of this Judgment & Order. [5.] The counsel for the appellant submits that the appellant never raped the victim and that the evidence of the victim clearly showed that it was actually Zohmangaiha, who was the boyfriend of the victim, who had raped the victim. He also submits that there was enmity between the appellant and the mother of the victim, inasmuch as, the cross-examination of the informant (PW-1) showed that the appellant had caught the informant (PW-1) while she was having sexual affairs with others. On being reprimanded, the informant got angry with the appellant. [6.] The learned counsel for the appellant submits that the victim was having a loose morale character even while being a minor, as she had admitted in her testimony that she had a boyfriend with whom she was having a sexual relationship. As such, the victim cannot be said to be a sterling witness and the evidence given by such a victim cannot inspire the confidence of the Court. In this regard, he has relied upon the judgment of the Supreme Court in the case of Radhey Shyam Vs. State of Rajasthan reported in (2014) 5 SCC 389 . He also submits that there is no circumstantial evidence or other evidence to support and corroborate the sole testimony of the alleged victim, as the medical report does not prove that rape had been committed by the appellant. In fact, the cross- examination of the Doctor (PW-6) in paragraph Nos. 4 & 6, exonerates the appellant from the crime, as paragraph Nos. In fact, the cross- examination of the Doctor (PW-6) in paragraph Nos. 4 & 6, exonerates the appellant from the crime, as paragraph Nos. 4 & 6 states as follows:- “ 4. Based on my medical examination report, I did not find any evidence regarding the involvement of the accused in the instant case. 6. I agree the suggestion that the accused Zothansanga have mental trauma due to the false allegation.” [7.] The learned counsel for the appellant further submits that the learned Trial Court had failed to consider the fact that the boyfriend of the victim, Mr. Zohmangaiha, had sexual relations with the alleged victim. The learned Trial Court had also failed mention the fact that the said Mr. Zohmangaiha was arrested due to having sexual relations with the victim and had escaped from Central Jail. He further submits that the fact that the appellant was falsely accused of having raped the victim girl is proved by the statement of the victim (PW-2) in her cross- examination, when she states “It is a fact that Mr. Zohmangaiha the one who sexually assaulted was presently escaped from central jail.” He submits that despite the prosecution having failed to establish that the appellant had committed an offense under Section 5 (m) of the POCSO Act against the victim, the learned Trial Court had erroneously convicted the appellant under Section 6 of the POCSO Act . [8.] Ms. Vanneihsiami, learned Addl. Public Prosecutor submits that as the prosecution has proved the foundational facts in relation to the illegal acts of the appellant in the POCSO case against the victim, the burden to prove his innocence now shifted to the appellant, as per Section 30 of the POCSO Act . She further submits that the evidence of the victim was consistent with the statement given by her under Section 164 Cr.PC. As such, there was nothing to show that the evidence of the victim girl was not trustworthy. The learned Addl. Public Prosecution also submits that conviction can be sustained on the sole testimony of a prosecutrix if it inspires confidence and no corroboration is required, unless there are compelling reasons which necessitate the Court to insist for corroboration of her statement. The learned Addl. Public Prosecutor submits that the testimony of the victim in this case inspires confidence and as such, no corroboration of the evidence of the victim is necessary. The learned Addl. Public Prosecutor submits that the testimony of the victim in this case inspires confidence and as such, no corroboration of the evidence of the victim is necessary. In this regard, the learned Addl. Public Prosecution has relied upon the judgment of the Supreme Court in the case of State of Himachal Pradesh Vs. Manga Singh reported in (2019) 16 SCC 759 [9.] Mr. C. Tlanthianghlima, learned Amicus Curiae appearing for the informant (respondent No. 2) submits that just because the victim was having a sexual relationship with another person, does not mean that the victim could not have been raped by the appellant. Even if the victim has lost her virginity due to a sexual relationship with another man, the same did not give license to any other person to rape the victim. The victim should not be put on trial just because of any promiscuous sexual behavior on her part. He submits that the only issue to be decided is to whether the appellant had raped the victim girl and not whether the victim girl had a sexual relationship with another person. In this respect, he has relied upon the judgment of the Supreme Court in the case of State of U.P Vs. Pappu Alias Yunus& Another reported in (2005) 3 SCC 594 [10.] The learned Amicus Curiae also submits that conviction under Section 6 of the POCSO Act can be made on the sole testimony of the victim girl, though the same must be found to be reliable and trustworthy by the Court. He submits that when there is nothing to show that the statements and the evidence of the victim were inconsistent with each other, which was unassailable, the victim can be said to be a sterling witness, whose version of evidence can be accepted by the Court without any corroboration. He submits that the testimony of the victim on the core issue of rape having remained intact, there was no infirmity in convicting the appellant on that basis alone. In this respect, he has relied upon the judgment of the Supreme Court in the case of Ganesan Vs. State Represented by Its Inspector of Police , reported in (2020) 10 SCC 573 . He accordingly submits that the impugned Judgment & Order should not be interfered with. [11.] We have heard the learned counsels for the parties. In this respect, he has relied upon the judgment of the Supreme Court in the case of Ganesan Vs. State Represented by Its Inspector of Police , reported in (2020) 10 SCC 573 . He accordingly submits that the impugned Judgment & Order should not be interfered with. [11.] We have heard the learned counsels for the parties. [12.] The evidence of PW-1, who is the informant and mother of the victim, is to the effect that the appellant is her step-brother. The victim who was living with the mother of the informant, was raped by the appellant when she was only 11 years old in the year 2017. The same had been told to the informant on 12.02.2022 by one Zohmangaiha, who was the victim’s boyfriend. The appellant had threatened to kill the victim, if she disclosed the incident to anyone, saying that the victim’s mother had no time to look after the victim and would not care even if the appellant had killed the victim. The informant on asking the victim about the incident, the victim told the informant that the accused had sexual penetrative intercourse with her more than 10 times and the last incident happened in December, 2021, when the victim and the appellant had gone to CCC Nursing School, Serchhip to give tiffin to the informant’s step-sister. [13.] The cross-examination of the informant (PW-1) shows that the informant was apparently having sexual affairs with her employer, while working at Tuichang Lei in the year 2017. It is also seen that the informant (PW-1) denied the suggestion that the appellant advised her to stop having an affair with a married man and to look after the victim. PW-1 also denied the suggestion that she did not come to know about the allegation against the appellant from Mr. Zohmangaiha but from her daughter. In the cross-examination of PW-1, it was also recorded as follows: “ I also witnesses that Mr. Zohmangaiha, the one who really sexually assaulted my daughter was presently escape from central jail.” This statement of the PW-1, to our mind, seems to be a case of wrong recording of the evidence of PW-1, inasmuch as, PW-1 has not denied the fact that Mr. Zohmangaiha was having an affair with the victim and that the affair was with the consent of PW-1. Zohmangaiha was having an affair with the victim and that the affair was with the consent of PW-1. As such, nothing can be read into the above statement which has, in all probability, mistakenly recorded a wrong portrayal of Zohmangaiha. In any event, the above discrepancy is not in tune with the evidence as given by PW- 1 and the evidence given by PW-2, where the entire narrative is that the appellant raped the victim. The above statement, as it appears to us, can only be construed to mean that Mr. Zohmangaiha had sexual relations with the victim. [14.] The evidence of the victim (PW-2) is to the effect that the appellant raped her in 2017 when she was 11 years old and that the appellant threatened to kill her if she told the same to anyone. Thereafter, he raped her again more than 10 times. In December, 2021, when the appellant and the victim went to CCC Nursing School to give dinner to their aunty, who had tested Covid-19 positive, the appellant had again raped her in the field near the Nursing School. Though she had initially not disclosed the incident about the appellant raping her, she finally told her friend Zohmangaiha about the rape. Zohmangaiha thereafter informed the victim’s mother (PW-1) about the victim being raped by the appellant, due to which an FIR was registered. The victim’s statement was recorded at the Police Station and she also gave her statement in Serchip. In her cross-examination, the victim admitted that she was having a sexual relationship with Mr. Zohmangaiha and that she had a romantic affair from the age of 12 years with Mr. Zohmangaiha. She also admitted that she use to consume alcohol from the age of 12 years. In her cross-examination, it has also been recorded as follows: “ It is a fact that Mr. Zohmangaiha the one who sexually assaulted was presently escaped from central jail.” [15.] The above recording of the testimony of the victim during cross- examination, in our view has been taken out of context and the same is a minor discrepancy, which does not change the core of the evidence of the victim, i.e. that the appellant raped the minor victim. The above recorded statement only affirms that Mr. The above recorded statement only affirms that Mr. Zohmangaiha had a sexual relationship with the victim, albeit an illegal one, in violation of the POCSO Act , 2012, for which a POCSO case is also pending against Zohmangaiha. In legal terms and in terms of the law of the land, the sexual relationship between Zohmangaiha and the victim would certainly come within the term sexual assault and rape. However, what is clear is that the above said statement made by the victim should be construed to only mean that Zohmangaiha was having consensual sex with the victim and the same was not intended to exonerate the appellant (Zothansanga) from the charge of rape. This is clear from the subsequent statement/evidence given by the victim in her cross-examination, wherein, it is recorded as follows:- “ It is not a fact that the accused Zothansanga never sexually assaulted me.” [16.] The evidence of PW – 3 & 4 are basically to the effect that they were witnesses to the seizure of the Birth Certificate of the victim by the Police. [17.] The evidence of PW-5, who is a doctor, is to the effect that on 14.02.2022, she received a requisition for medical examination of the victim girl, who was 16 years of age. Her examination led to the finding that the victim was physically and mentally sound. There were no bruises, laceration or mark of injuries on her body. The hymen of the victim was not intact and the vaginal swab of the victim showed presence of spermatozoa, though it was not known whether the same belonged to the appellant. [18.] The evidence of another doctor, PW-6, is to the effect that on 14.02.2022, he medically examined the appellant and on asking about the rape incident, the appellant had told him that he had sexual intercourse with the victim in 2020 and 2021. PW-6 found the appellant to be physically and mentally sound and the genital organs of the appellant was normal and fully developed. As such, the appellant could perform normal sexual intercourse. However, in his examination-in- chief, PW-6 has stated that based on his medical examination report, he did not find any evidence regarding the involvement of the appellant in the instant case and that he agreed with the suggestion that the appellant had mental trauma due to the false allegation. As such, the appellant could perform normal sexual intercourse. However, in his examination-in- chief, PW-6 has stated that based on his medical examination report, he did not find any evidence regarding the involvement of the appellant in the instant case and that he agreed with the suggestion that the appellant had mental trauma due to the false allegation. In the cross-examination, PW-6 has denied the suggestion that the appellant did not inform him that he had sexual intercourse with the victim. As such, the extra judicial confession made by the appellant to PW-6 is to the effect that the appellant had raped the victim. [19.] The evidence of the case I/O, PW-8, is to the effect that on receipt of the FIR on 14.02.2022, regarding rape of the informant’s daughter, who was 11 years of age, Serchhip P.S Case No. 14/2022 dated 14.02.2022 under Section 6 of the POCSO Act was registered and she investigated the case. She recorded the statement of the victim and the complainant and seized the Birth Certificate of the victim. Medical Examination of the victim was done and her judicial statement was recorded by the Judicial Magistrate First Class, Serchhip District Court. She thereafter found a prima facie case under Section 6 of the POCSO Act , 2012 against the appellant. In her cross-examination, PW-8 stated that she did not know whether the victim’s mother use to have sexual affairs with her employer and also denied the suggestion that the informant’s mother had trapped the appellant for revenge. She also stated in her cross-examination that as per the medical record, the spermatozoa found in the vaginal swab of the victim belonged to Zohmangaiha. [20.] The statement of the victim under Section 164 Cr.PC is to the effect that she was 11 years old in 2017, when she was residing in the house of the appellant. When they were alone one day, the appellant pulled her towards the bedroom and raped her. Thereafter, he threatened to kill the victim, if the victim informed the incident to anybody. Even after she moved into her own house, the appellant came to their home and raped her twice. When her mother’s younger sister contracted covid-19, she was put in the CCC Nursing School. When the victim and the appellant went to give a meal to her aunty, the appellant again raped her in the field near the Nursing School. Even after she moved into her own house, the appellant came to their home and raped her twice. When her mother’s younger sister contracted covid-19, she was put in the CCC Nursing School. When the victim and the appellant went to give a meal to her aunty, the appellant again raped her in the field near the Nursing School. She thereafter told her boyfriend Zohmangaiha about the rape, who informed her mother of the same. [21.] The examination of the appellant under Section 313 Cr.PC shows that he has given a blanket denial to the evidence/allegation of rape committed by him. In the case of Rajkumar Vs. State of Madhya Pradesh reported in (2014) 5 SCC 353 , the Supreme Court has held that in the event of complete denial in respect of questions put to an accused under Section 313 Cr.PC, the Court would be entitled to draw an inference, including an adverse reference against the accused. In the present case, the victim’s evidence is clear that the appellant raped her. [22.] As can be seen from the evidence recorded by the learned Trial Court, there is no denial by PW-1 or PW-2, to the effect that the victim PW-2 was having a sexual relationship with Zohmangaiha. On the other hand, the testimony of the victim shows that she had been raped by the appellant in the year 2017, when she was only 11 years old. The testimony of the victim shows that the case of the appellant and Zohmangaiha would both come within the provisions of Section 5(m) of the POCSO Act , 2012, as both had sexual relations with a minor. [23.] The evidence of PW-1 has been based solely on the statement made by Zohmangaiha, who has not been made a prosecution witness for reasons not known to this Court. In any event, it is an admitted fact that in view of Zohmangaiha having had a sexual relationship with the victim, though consensual on the part of both the parties, the same was not permissible in terms of the POCSO Act , 2012. The reason being that a minor girl cannot give her consent for having a sexual relationship, prior to attaining the age of majority. As such, Zohmangaiha had also been arrested and a different case under the POCSO Act has been registered against him. The reason being that a minor girl cannot give her consent for having a sexual relationship, prior to attaining the age of majority. As such, Zohmangaiha had also been arrested and a different case under the POCSO Act has been registered against him. However, as he has escaped from Central Jail and has absconded since, Zohmangaih cannot be called by the Court for giving evidence. [24.] The only question now to be decided is whether the evidence of the victim girl can be the sole basis for convicting the appellant under Section 6 of the POCSO Act and whether the said evidence inspires the confidence of the Court. In the case of Radhey Shyam (supra), the Supreme Court has held that the evidence a child witness must be evaluated more carefully and with greater circumspection, because a child is susceptible to tutoring. The Supreme Court further observed that the evidence of the child witness must find adequate corroboration before it is relied upon, is more a rule of practical wisdom than of law. [25.] In the case of State of Himachal Pradesh Vs. Manga Singh (supra), the Supreme Court has held that the conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence and no corroboration is required, unless there are compelling reasons which necessitate the Courts to insist for corroboration of the victim’s statement. Corroboration of the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contractions or small discrepancies should not be a ground for throwing the evidence of the prosecutrix. The Supreme Court further held that if the evidence of the victim does not suffer from any basic infirmity and the “probabilities factor” does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration. [26.] In the case of Ganesan (supra), the Supreme Court has held that conviction can be based on the sole testimony of the victim which should be found to be reliable and trustworthy. In the case of State of Uttar Pradesh Vs. Pappu (supra), the Supreme Court has held that even if a victim in a given case has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone. In the case of State of Uttar Pradesh Vs. Pappu (supra), the Supreme Court has held that even if a victim in a given case has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone. It has also been held that that just because the girl is of loose morals and easy virtue, does not mean that the accused is entitled to acquittal. [27.] In the present case, the victim was 11 years old when she was first raped and had thereafter been subjected to rape on a few more occassions, the last occasion being sometime in December, 2021. The medical examination was done in February, 2022 and as such, there can be nothing new found on the basis of the medical examination report. However, the fact that the girl’s hymen was absent clearly showed that the victim had had sexual intercourse. The victim girl has frankly admitted the fact that she had been raped at the age of 11 by the appellant and that she got into a physical sexual relationship with Zohmangaiha when she was 12 years old. We do not find any reason for the victim to have falsely implicated her uncle in a case of rape and no motive for such allegation can be made out from the evidence recorded by the learned Trial Court. [28.] Though that the evidence of the child witness must be evaluated more carefully because a child is easy prey to tutoring, the victim herein gave evidence before the Trial Court at the age of 16, when she would have been more mature. Further, the issue as to whether the child witness has sufficient intelligence, capable of giving proper answers after understanding questions, pertains to young children especially below 12 years of age. In the present case, the testimony of the victim PW-2 was taken on 09.09.2022 at the age of 16, while the last rape had been committed when the victim was 15 years of age in December, 2021. In the present case, the testimony of the victim PW-2 was taken on 09.09.2022 at the age of 16, while the last rape had been committed when the victim was 15 years of age in December, 2021. [29.] On considering the fact that the victim has frankly narrated her sexual relationship, we are of the view that just because the victim had consented to a sexual relationship with Zohmangaiha, does not mean that the same will result in her not being capable of giving frank and truthful answers to the rape that has been committed upon her. On considering the evidence of the victim and the statement given under Section 164 Cr.PC, we find that the testimony given by the victim inspires the confidence of the Court and is trustworthy. Her sexual history with Zohmangaiha does not automatically make her testimony suspect. We find her testimony to be worthy of credence and requires no further corroboration. Besides, PW-8 in his evidence has stated that the appellant had admitted to him, of having raped the victim. [30.] In view of the reasons stated above, we do not find any ground to interfere with the impugned Judgment & Order dated 29.08.2024 passed by the learned Trial Court in Sessions Case No. 60 of 2022 arising out of Criminal Trial No. 713 of 2022. The appeal is accordingly dismissed. Send back the LCR. [31.] In appreciation of the assistance provided by Mr. C. Tlanthianghlima, learned Amicus Curiae, his fee is fixed at Rs. 8,500/-, to be paid by the State Legal Services Authority.