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2025 DIGILAW 502 (GAU)

K. Lalruatfela v. State of Mizoram

2025-03-21

YARENJUNGLA LONGKUMER

body2025
JUDGMENT : Heard Mr. J.H. Ricky Lalruatfela, learned Amicus Curiae for the appellant. Also heard Mrs. Emily L. Chhangte, learned Legal Aid Counsel for respondent No. 2 and Mrs. Mary L. Khiangte, learned Addl. PP for the State. 1. This is a Jail Appeal from Central Jail, Aizawl by the appellant/convict K. Lalruatfela praying for setting aside and quashing of the Judgment and Order dated 22.11.2023 in Session Case No. 149 of 2022 and Crl. Tr. No. 1861 of 2022 u/s 8 of POSCO Act, 2012 R/W Section 354-A(2) IPC. 2. The fact of the case in brief is that a written FIR was lodged by the father of the victim at Darlawn P.S. on 06.10.2022. It was stated in the FIR that the victim was alone in their house on the evening of 02.10.2022 when the accused came in and assaulted her by pulling her into a bench and touched her breast and kissed her. Darlawn P.S. case No. 11 of 2022 dated 06.10.2022 was accordingly registered and investigated. Having found a prima facie case against the accused, the charge sheet was submitted containing a list of five prosecution witnesses along with the FIR, the arrest memo and birth certificate of the victim. Charge was framed against the accused person on 02.03.2023 under Section 8 of the Protection of Children from Sexual Offences, (POSCO) Act, 2012 and Section 354-A (2) of the Indian Penal Code (IPC). The accused pleaded not guilty and claimed to be tried. The defense produced one witness. The accused was examined under Section 313 Cr. P.C. on 07.09.2023. 3. The learned Trial Court framed three points for determination: (i) Whether X was a child at the time of the alleged assault on 2.10.2022? (ii) Whether the accused had committed an act amounting to sexual assault and sexual harassment on her at the time and, if so, whether it would take the aggravated form? (iii) If so, what punishment would be appropriate in the circumstances of the case? On the basis of the evidence as adduced in the present case, the learned Trial Court came to the conclusion that the charge under Section-8 of the POSCO Act, 2012 r/w 364-A (2) of the IPC had been proved beyond reasonable doubt against the appellant and he was sentenced to simple imprisonment for 3(three) years and Rs. 1000/- (one thousand) fine. 1000/- (one thousand) fine. In default he is to undergo further simple imprisonment of 1(one) week. 4. Being aggrieved the convict/appellant Shri. K. Lalruatfela has preferred this appeal from jail. This Court appointed learned counsel Mr. J.H. Ricky Lalruatfela, as Amicus Curiae to appear on behalf of the accused/appellant. 5. Learned counsel Mr. J.H. Ricky Lalruatfela has argued that there is delay in filing the FIR as the alleged incident happened on 02.10.2022, but the FIR was lodged on 06.10.2022. He also states that there are three FIRs as per the records. One is that the victim in her deposition stated that she went to the Darlawn P.S on 06.10.22 and the police questioned her and asked her to sign her name on the typed FIR. The second one is that the father of the victim Lalhumhima deposing as PW stated that they had a family meeting and decided to lodge an FIR which was drafted in the computer by his elder sibling and submitted to Darlawn P.S. and the third FIR is the one dated 06.10.2022 exhibited as Exhibit P-1. It is therefore doubtful as to which one is the actual FIR. 6. Learned counsel also states that the birth certificate has not been proved in accordance with law. While, referring to the birth certificate which is exhibited during the trial as Exhibit M-1 he states that the Exhibit is only a photocopy, and it was never compared with the original copy before the court. He has also stated that the birth certificate shows that the date of birth of the victim is 15.09.2008. However, the birth certificate was issued only on 13.01.2009, which means that the birth certificate was issued belatedly and appears to be an afterthought. Learned Amicus Curiae also submits that the authority who issued the birth certificate was not examined and therefore, learned Amicus Curiae has argued that the birth certificate could be a forged document as it has never been proved before the learned Trial Court. In order to support his contentions the learned Amicus Curiae has relied on the judgment of Sh. Mangtindam @ Manga in Crl.A (J) 17/2024 , passed by a Division Bench of this Court vide Judgment dated 11.02.2025, wherein, at paragraph-23 the Court stated that: “23. In order to support his contentions the learned Amicus Curiae has relied on the judgment of Sh. Mangtindam @ Manga in Crl.A (J) 17/2024 , passed by a Division Bench of this Court vide Judgment dated 11.02.2025, wherein, at paragraph-23 the Court stated that: “23. Thus, we find that merely because a document was exhibited and was not objected to by the defense counsel before the Trial Court, this cannot do away with the provisions of sections 64 & 65 of the Indian Evidence Act, 1872. Section 64 of the Act provides that "documents must be proved by primary evidence except in the cases hereinafter mentioned." Section 65 of the Indian Evidence Act establishes a framework for admission of secondary evidence in situation where it would be impractical or impossible to directly present the original document in the Court or were the original document is lost, alter or not easily accessible. Thus, on considering the circumstances under which secondary evidence is admissible under Sections 64 and 65 of the Indian Evidence Act, we find that in the present case, the accuracy/authenticity of the photocopy Birth Certificate exhibited as Exhibit P-VIII was not compared with the original document during the investigation of the case or before the learned trial court. We therefore find that the date of birth of the prosecutrix has not been established by the prosecution.” 7. Relying on the above judgment, learned Amicus Curiae, states that the requirement of Section 64 and 65 of the Indian Evidence Act, 1872 has not been complied with, in as much as the date of Birth of the victim has not been established by the prosecution. In such a situation the accused could not have been tried for an offence under the POSCO Act, 2012 as the victim is not proved to be a “child” , within the meaning of Section 2 (1) (d) POSCO Act, 2012. 8. The second leg of the argument of the learned Amicus Curiae is that, there are serious and major contradictions in the deposition of the PWs in as much as the victim in her deposition stated that the accused is not known to her and that on 02.10.2022, the accused came with one Lalremruata and a little boy. However, the little boy and Mr. Lalremruata left after some time and the accused decided to sit for a while. However, the little boy and Mr. Lalremruata left after some time and the accused decided to sit for a while. She has stated that he sat on the long chair and called her to sit near him and when she went there, he pulled her down on the chair and grabbed her breast, but she manage to escaped and rushed to the kitchen, the accused followed her and he forcefully grabbed and kissed her. At that time her father who had gone to feed the pigs on his scooty returned home and hearing her father’s voice the accused left and the accused passed her father at the door, however, she did not hear them talk to each other. However, in her cross-examination the victim stated that when the accused and the other two persons came to their house she was inside the room and they called her out, and when she went out from the room, the accused, his son and Lalremruata were sitting in the room. The accused invited her to sit with them and pulled her down to sit. Therefore, learned counsel submits that there is contradiction in the deposition of the victim. The father of the victim Lalhumhima deposing as a PW also stated that he has never known the accused before this case. In his cross-examination, he stated that when he asked his daughter about the incident, she replied that the accused had entered drunk and he called her but, she refused to go to him. However, he forcefully pulled her down on a chair, hugged her and immediately kissed her. He even grabbed her breast. The I.O. of the case deposing as PW-5 stated that when he examined the father of the victim during investigation he stated that he was not present when the accused and his brother-in-law with his son came to their house. 9. Learned counsel Amicus Curiae for the appellant has also referred to the deposition of DW-1 Mr. Vanlalremruata who, stated that he knows the accused person since the accused is his wife’s cousin. He deposed that one Sunday in September, 2022, after church he had gone with the accused and his sever- year-old son to the house of the victim, they sat there for some time and left. Vanlalremruata who, stated that he knows the accused person since the accused is his wife’s cousin. He deposed that one Sunday in September, 2022, after church he had gone with the accused and his sever- year-old son to the house of the victim, they sat there for some time and left. After they left he heard of the accusation, but there was no time or opportunity for the accused to have assaulted her when they were in her house. He stated that he was sitting near the door when they visited the house of the victim. Hence, on the way out, he was the first to leave and the accused followed him and therefore, there was no chance for the accused to have assaulted the victim. In his cross-examination the DW No. 1 stated that, that Sunday in September, 2022, he went to the house of the victim with the accused and his son. However, in the next sentence the DW-1 stated that he did not go to the victim’s house on 02.10.2022. Further, DW-1 stated in his cross-examination that when they went to the house of the victim in September, 2022, he did not believe that the accused had asked the victim to sit with him. According to the learned Amicus Curiae, there is a mix-up regarding the date of the incident by DW-1. However, the learned Trial Court did not correct this mistake and proceeded to record in the judgment dated 22.11.2023 at paragraph 6 (vi) that: “The defense tried to negate X's claim of an assault by bringing a witness who stated that he was also in the house the entire time, and that the accused could not have had opportunity to commit an offence during his presence. However, in cross-examination the witness for the defence stated that he had not gone to X's house on 2.10.2022, the day of the alleged incident, so his evidence would not lend any support to the accused.” This also goes to show that the learned Trial Court has not applied its mind while passing the impugned judgment. 10. Learned Amicus Curiae has placed reliance on the judgments of the Hon’ble Apex Court in (2015) 11 SCC 124 , UPENDRA PRADHAN Versus STATE OF ORISSA; (1973) 2 SCC 793 , SHIVAJI SAHABRAO BOBADE and ANOTHER Versus STATE OF MAHARASHTRA and (2011) 14 SCC 475 K.P. THIMMAPPA GOWDA Versus STATE OF KARNATAKA. 10. Learned Amicus Curiae has placed reliance on the judgments of the Hon’ble Apex Court in (2015) 11 SCC 124 , UPENDRA PRADHAN Versus STATE OF ORISSA; (1973) 2 SCC 793 , SHIVAJI SAHABRAO BOBADE and ANOTHER Versus STATE OF MAHARASHTRA and (2011) 14 SCC 475 K.P. THIMMAPPA GOWDA Versus STATE OF KARNATAKA. Relying on the above stated judgments learned Amicus Curiae has submitted that, when there are two views which can be culled out from the perusal of evidence and application of law, the view which favors the accused should be taken. It is now well settled that benefit of doubt belongs to the accused, and suspicion however, grave cannot take place of proof. It is also well-settled that there is a long distance between “may be” and “must be”. 11. The next argument of the learned Amicus Curiae is that the statement of the victim has not been recorded under Section 164 CRPC, which is another mandatory legal formality in maintaining the integrity of the judicial process, learned Amicus Curie therefore, submits that the prosecution has miserably failed to establish the case against the appellant/convict beyond reasonable doubt and therefore, the judgment and order dated 22.11.2023 in Session Case No. 149 of 2022 and Crl. Tr. No. 1861 of 2022 u/s 8 of POSCO Act, 2012 R/W Section 354-A(2) IPC, and the Sentence dated 29.11.2023 may be quashed and set aside and the appellant may be set at liberty. 12. Learned P.P., Mrs. Mary L. Khiangte appearing for the State respondent has submitted that the appellant is from East Phaileng village and the victim is from Kepran village. The two villages come under the jurisdiction of Darlawn P.S. and there is a reasonable distance between the villages and the P.S. The Darlawn P.S. personnel therefore have to travel to the villages in order to record the statement and similarly, the victim and the informant also have to travel for a reasonable distance to reach the Darlawn P.S. The victim being a young girl was uncomfortable to relate the story about the incident to her parents and therefore, she had not informed her parents about the incident on the day of occurrence. It was only after a few days the parents came to know about the incident and thereafter, the FIR was lodged on 06.10.2022. Learned P.P., therefore, states that there is no delay in lodging the FIR. It was only after a few days the parents came to know about the incident and thereafter, the FIR was lodged on 06.10.2022. Learned P.P., therefore, states that there is no delay in lodging the FIR. She has also stated that the only FIR on record is the one exhibited as Exhibit P-1 and there is no second or third FIR as alleged by the learned Amicus. In respect of the birth certificate Learned P.P. referred to paragraph 6 (iii) of the impugned judgment wherein, the learned Trial Court stated that the birth certificate, Exhibit M-1 is seen to have been issued by the Registrar of births and deaths Khawruhlian, Mizoram on 13.01.2009, vide registration No. 08.2009 dated 13.01.2009 and it shows the date of birth of X, D/o Lalhumhima (father) and Lalchhungpuii (mother), as 15.09.2008. Therefore, learned P.P. states that the learned Trial Court did not state anywhere that the birth certificate was a photocopy. She has further submitted that the facts of the case in the cited case of Sh. Mangtindam @ Manga in Crl.A(J)17/2024 , are different as in the earlier case referred by the learned Amicus Curiae, there was over-writing in the birth certificate and the name of the victim’s mother had been struck of, and replaced by another name. Moreover, the I.O. in the previous case had deposed that he had seized only the photo copy of the birth certificate. However, in the present case the I.O. had stated that he obtained the original copy of the birth certificate and had made a photo copy of the same. Moreover, the learned Trial Court has relied on the said birth certificate as it was genuine and valid. All the PWs including the victim have also stated in their evidence that the date of birth of the victim was 15.09.2008. Accordingly, the victim was about 14(fourteen) years of age during the incident and therefore, the accused was rightly tried under the POSCO Act, 2012. 13. Learned P.P. has also argued that the recording of victim’s statements under 164 Cr. P.C. is not mandatory and it does not affect the prosecution case, and she also submitted that it is settled law that minor discrepancies in the evidence is not fatal for the prosecution case. She has further, argued that the FIR and the PW evidence are all in line with the version put forward by the victim. P.C. is not mandatory and it does not affect the prosecution case, and she also submitted that it is settled law that minor discrepancies in the evidence is not fatal for the prosecution case. She has further, argued that the FIR and the PW evidence are all in line with the version put forward by the victim. Learned P.P. has also submitted that in POSCO cases the prosecution needs to prove only the foundational facts and thereafter, the principle of reverse burden will operate and the accused has to prove that he is innocent. The learned P.P. has also drawn the attention of this Court to the compromise letter dated 26.11.2023 at page-19 in the paper book, where the accused and the father of the victim have entered into a compromise, stating that the accused begged for forgiveness and requested that the FIR should be withdrawn. The father of the victim also states in the letter that he has forgiven the accused, as requested, and agreed on dismissal of the ongoing case. Learned P.P. submits that this compromise letter 26.11.2023 also shows that the case against the accused is an admitted fact even though the compromise was made after the Judgment and Order dated 22.11.2023 was passed. 14. Learned P.P. therefore, submits that the Judgment and Order dated 22.11.2023 may be upheld and should not be interfered with. 15. Ms. Emily L. Chhangte, learned Legal Aid Counsel appears for the respondent No. 2/informant and submits that she adopts the submission made by the learned P.P., and she also relies on the Judgment of the Hon’ble Apex Court in 2017 (2) SCC 51 ; STATE OF HIMACHAL PRADESH Vs SANJAY KUMAR @ SUNNY, at paragraph-31. Learned Legal Aid Counsel appearing for respondent No. 2/informant referring to the cited case submits that by now, it is well-settled that the testimony of the victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of the statements, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. She therefore, submits that the evidence of the victim can be taken as a whole without seeking corroboration. And prays that the present Appeal may be dismissed. 16. I have perused the trial court records and considered the submissions of the learned counsels. She therefore, submits that the evidence of the victim can be taken as a whole without seeking corroboration. And prays that the present Appeal may be dismissed. 16. I have perused the trial court records and considered the submissions of the learned counsels. As far as the argument of multiple FIRs is concerned I find that the same is bereft of merit as there is only one FIR dated 06.10.2022 on record which is Exhibit P-1 in the LCR. As submitted by the ld P.P it is not very easy for a girl child to report about a sexual offence to her parents and even more difficult for villagers to travel from the village to the police station to lodge the FIR/complaint. As such a period of 3 days in between the day of incident and lodging of FIR cannot be said to be ‘delayed’ in the facts and circumstances. 17. In respect of the argument regarding the requirement to prove the birth certificate in accordance with law, this court would refer to the depositions of the PWs before the trial court. The I.O (PW 5) stated that, “the birth certificate of the victim was brought to Darlawn P.S by the father of the victim on 07.10.2022, the photocopy of the birth certificate was made from the original and the original birth certificate was returned back to the victim”. This statement is corroborated by the deposition of the victim’s father by stating that the police collected his daughter’s original birth certificate and they returned the original after a while. Exhibit M-1 is the photocopy of the birth certificate which is attested and certified by the Headmaster of Darlawn High School-II, (Govt Aided), Darlawn, Mizoram who is a government official. In the depositions of the th PWS, the victim stated that she was born on 15 September 2008, the father of th the victim stated that she was born on 15 September 2008, and PW-4 stated that according to the birth certificate the victim was born on 15.09.2008. It is pertinent that the genuineness of the birth certificate has never been disputed by the defense before the trial court. The evidence is therefore clear that a photocopy was made from the original and the original was returned back to the victim. It is pertinent that the genuineness of the birth certificate has never been disputed by the defense before the trial court. The evidence is therefore clear that a photocopy was made from the original and the original was returned back to the victim. As argued by the learned P.P the facts of this case can be distinguished from the facts of the cited case of Sh.Mangtindam @ Manga (supra) in as much as the I.O in his deposition in that case deposed that he had seized only the photocopy of the birth certificate and moreover in the said birth certificate the name of the victim’s mother had been struck off and replaced by another name. This Court is of the view that the case of Sh.Mangtindam @ Manga (supra) is not applicable in the present case. 18. Section 79 of the Indian Evidence Act, 1872, establishes a presumption of genuineness for certified copies of documents that are admissible as evidence and duly certified by authorized officers. As per Section 79 of the IE Act the court has to presume that certified copies of documents are genuine, provided they are duly certified by an officer of the Central Government or a State Government. The certified true copy of a certificate issued by Registrar of Births & Deaths or the FSL report issued by an Expert of a government forensic lab are some examples of government documents which can be presumed to be genuine unless disputed. Therefore it is quite clear that the victim was a minor at the time of the incident. The learned trial court has rightly relied on the birth certificate to come to a finding that the victim is a “child’’ and the charge under the POCSO Act was rightly framed. 19. Another argument taken by the learned Amicus Curiae is that there are serious and major contradictions in the deposition of the PWs. The Court has gone through the evidence minutely and finds that except for some minor discrepancies the statement that the appellant touched the victim’s breasts and kissed her remains steadfast and unshaken in the victim’s deposition as well as in her father’s deposition. In State of AP Vrs S.Rayappa & ors; (2006) 4 SCC 512, the Supreme Court stated that: “9. ….every discrepancy in the witness statement is not fatal to the prosecution’s case. In State of AP Vrs S.Rayappa & ors; (2006) 4 SCC 512, the Supreme Court stated that: “9. ….every discrepancy in the witness statement is not fatal to the prosecution’s case. The discrepancy, which does not materially affect the prosecution case, does not create any infirmities” Also in the case of Rohtas and Another Versus State of Haryana; (2019) 10 SCC 554, the Supreme Court expressed a similar view stating that: “24…………an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses” 20. The learned Amicus has pointed out that there is no Sec 164 CRPC statement of the victim in the present case which is a serious shortfall in the prosecution case. However, this court is of the view that the non recording of a section 164 CRPC statement of the victim is not fatal to the prosecution case as the Sec 164 statement is not considered as substantive evidence. It cannot be used as the primary basis for proving a fact in issue but can be used only to corroborate or contradict the witness’s testimony. In the case of State of Rajasthan Vrs Kartar Singh; 1970 AIR (SC) 1305, the Hon’ble Apex Court stated that the Sec 164 statements were not evidence but were of corroborative value. 21. In State of Punjab vrs Gurmit Singh reported in 1996 (2) SCC 384 the Apex Court laid down the following guidelines for trial in sexual assault cases: "Delay in lodging FIR is not material when properly explained. Testimony of victim in cases of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Court should find no difficulty in convicting the accused on prosecutrix’s testimony alone.” In State of Himachal Pradesh vs Raghubir Singh ; (1993) 2 SCC 622 the Supreme Court said:- “There is no legal compulsion to look for corroboration of the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. In the present case the evidence of the prosecutrix is found to be reliable and trustworthy. No corroboration was required to be looked for, though enough was available on the record”. The cases relied upon by the appellant are therefore not relevant in the present case as from the analysis and appreciation of the evidence there is no possibility of having two views so as to give the benefit of doubt to the appellant/convict. 22. In view of the foregoing analysis and conclusion this Court is of the opinion that the learned trial court has not committed any error either in law or fact in convicting the appellant and the judgment and order dated 22.11.2023 in Session Case No. 149 of 2022 and Crl. Tr. No. 1861 of 2022 u/s 8 of POSCO Act, 2012 R/W Section 354-A(2) IPC, and the Sentence dated 29.11.2023 do not warrant any interference by this Court and are upheld. 23. Accordingly, the Appeal is dismissed. No order as to costs. 24. Services rendered by the learned Amicus Curiae for the appellant and learned Legal Aid Counsel for respondent No. 2 are appreciated by this Court. They are entitled to their fees as fixed by the Mizoram State Legal Services Authority and the State of Mizoram. 25. The Registry shall send back the records of the trial court.