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2025 DIGILAW 582 (GAU)

Lalhlimpuia Hmarveng, Kawnpui v. State of Mizoram

2025-04-02

MARLI VANKUNG, ROBIN PHUKAN

body2025
JUDGEMENT AND ORDER : Marli Vankung, J. Heard Mr. H. Zodingsanga, learned Amicus Curiae for the appellant. Also heard Ms. Vanneihsiami, learned Additional Public Prosecutor for the State respondents and Mr. Jordan Rohmingthanga, learned Legal Aid Counsel for respondent No. 2. 2 . This is a jail appeal against the Judgment & Order passed on 19.12.2023 by the District & Sessions Judge-cum-Judge, FTC, Kolasib in SC(K) No. 10/2021 A/o of a Crl. Tr. Ex. No. 194/2021, Kolasib PS Case No. 60/2020, wherein, the appellant was convicted u/s 6 of the POCSO Act and sentenced to undergo R.I. for 20 (twenty) years and to pay a fine of Rs. 5000/- in default to undergo further S.I. for 1 (one) month. 3 . Brief facts of the case is that an FIR was filed by the informant on 25.08.2020 to the effect that during the month of June – July, 2020 her younger sister Ramdinthari, whom they had admitted to TNT, Khuangpuilam (Rehab) took her daughter ‘X, aged 5 years with her to the Rehabilitation Home. Another inmate of TNT, Khuangpuilam named Lalhlimpuia of Kawnpui sexually molested the minor daughter of Ramdinthari by touching her breasts and private part. The FIR was thus filed for taking legal action against Lalhlimpuia who had molested ‘X’ (minor). The case was registered as KLB – PS C/No. 60/2020 dated 25.08.2020 u/s 6 POCSO Act. 4 . Thereafter, the case I.O took up the investigation of the case by visiting the P.O and examining the complainant, the victim ‘X’ and other witnesses. The accused was arrested and the accused and the victim ‘X’ were sent for medical examination. The medical report showed that the hymen of the victim child was not intact. The statement of the victim ‘X’ was also recorded by JMFC under Section 164 CrPC. The Birth Certificate of the victim child was also seized. From the above investigation, a prima facie case under Section 6 of the POCSO Act was found against the appellant and the charge sheet was submitted accordingly. 5 . The learned Trial Court framed charge under Section 6 of the POCSO Act against the accused/appellant, which was read out and explained to him in the language known him, to which he pleaded not guilty and claimed for trial. During trial, as many as 7 prosecution witnesses were examined, though the prosecution had cited 8 prosecution witnesses. 5 . The learned Trial Court framed charge under Section 6 of the POCSO Act against the accused/appellant, which was read out and explained to him in the language known him, to which he pleaded not guilty and claimed for trial. During trial, as many as 7 prosecution witnesses were examined, though the prosecution had cited 8 prosecution witnesses. In the examination of the accused/appellant u/s 313 CrPC, he denied the incriminating evidence that he had committed aggravated penetrative sexual assault upon the minor victim girl by touching her breasts and her private part inside TNT Home, Khuangpuilam. The accused/appellant produced one defence witness. 6 . The learned Trial Court upon hearing both the parties, found the accused/appellant guilty of the charge u/s 6 of the POCSO Act and on his conviction, sentenced him to undergo R.I. for 20 (twenty) years and to pay a fine of Rs. 5000/- in default to undergo further S.I. for 1 (one) month. Aggrieved, the instant jail appeal. Submissions made by the learned counsels 7 . Mr. H. Zodinsanga, learned Amicus Curiae submitted that the impugned Judgment & Order dated 19.12.2023 is liable to be set aside on the grounds that on perusal of the deposition of the victim girl before the court and her statement recorded u/s 164 CrPC, it can be seen that the victim child had only stated that the accused/appellant had touched her breasts and her vagina through her panty. That he did this 3 (three) times during her stay at TNT Home, Kolasib. The learned Amicus Curiae submitted that the nature of the offence described by the victim girl is not an act of penetrative sexual assault as described under Section 3 of the POCSO Act, nor is it an aggravated penetrative sexual assault under Section 5 of the POCSO Act since the victim girl had only stated that the appellant had touched her vagina through her panty, there is no evidence of any penetration. 8 . The learned Amicus Curiae further submitted that the learned Trial Court had failed to ask the preliminary questions required during trial before recording the deposition of a child witness as mandated by the Hon’ble Apex Court in the case of Pradeep Vs. State of Haryana , reported in AIR 2023 SC 3245 . 8 . The learned Amicus Curiae further submitted that the learned Trial Court had failed to ask the preliminary questions required during trial before recording the deposition of a child witness as mandated by the Hon’ble Apex Court in the case of Pradeep Vs. State of Haryana , reported in AIR 2023 SC 3245 . He also submitted that though some preliminary questions were asked to the victim child while recording her statement u/s 164 CrPC, the JMFC who recorded her preliminary questions did not appear as a prosecution witness before the court and therefore has not proved the recording of the statement u/s 164 CrPC. 9 . The learned Amicus Curiae further submitted that the PW-3/Freddy Vanlalmuanpuia, who was supposedly an eye witness, has been dropped. He submitted that he was a vital witness for the prosecution, however, he was not brought before the Trial Court. He submitted that the prosecution have failed to prove their case beyond any reasonable doubt. 10 . Ms. Vanneihsiami, learned Addl. Public Prosecutor on the other hand submitted that the medical evidence shows that the hymen of the victim child was found not intact as stated by the Doctor who examined her on 25.08.2020. The medical report exhibited as Ext.P-VI, also showed that there was tenderness of her private part. The learned Addl. Public Prosecutor also submitted that before recording of the statement of the victim child u/s 164 CrPC, the JMFC had asked the required preliminary questions to ascertain that the victim child was able to understand the nature of the statements made before her and therefore since her statements made u/s 164 CrPC is similar to those made in her deposition before the court, there was no requirement to ask preliminary questions by the Trial Court. The learned Addl. Public Prosecutor relied on the judgment of the Apex Court in Ganesan Vs. State Represented by its Inspector of Police , reported in (2020) 10 SCC 573 where the Apex Court held that there can be a conviction based on the sole testimony of the victim. The learned Addl. Public Prosecutor thus submitted that there were no grounds to interfere with the impugned Judgment & Order dated 19.12.2023. 11 . Mr. Jordan Rohmingthanga, learned Legal Aid Counsel submitted that even though the Apex Court in Pradeep Vs. The learned Addl. Public Prosecutor thus submitted that there were no grounds to interfere with the impugned Judgment & Order dated 19.12.2023. 11 . Mr. Jordan Rohmingthanga, learned Legal Aid Counsel submitted that even though the Apex Court in Pradeep Vs. State of Haryana (Supra) had held that the Trial Judge was to ask preliminary questions to a child witness and record his opinion that the child was able to understand the questions put to her, in the present case, since preliminary questions were asked while recording her statement u/s 164 CrPC, wherein, it is clear that she was able to understand the questions put to her and since her deposition is also the same and consistent with the statement recorded u/s 164 CrPC, it was not required by the learned Trial Court to ask preliminary questions. 12 . He further submitted that the medical report also corroborates with the evidence of the minor child and therefore there were no grounds for setting aside the impugned Judgment and Order dated 19.12.2023. He further submitted that in the present case, the learned Judicial Magistrate First Class (JMFC) was satisfied that the minor child was able to understand the questions put to her which is seen from the questions put to the victim child before the recording of her statement u/s 164 CrPC. For the above reason, the testimony of the child can be relied upon, since it has also been duly corroborated by the medical report exhibited as Ext P-VI wherein the medical doctor has clearly confirmed that the child was sexually molested. 13 . Having heard the submissions made by the learned counsels for both the parties, we find that in order to fully appreciate the submissions made by the learned counsels for both the parties, it would be appropriate to highlight the evidence recorded before the Trial Court herein under:- Evidence adduced before the Learned Trial Court 14 . PW-1/Lalhmundiki deposed that during the months of June – July, 2020 her younger sister Ramdinthari, while staying at TNT, Khuangpuilam, Kolasib took her minor daughter ‘X’ aged 5 years with her. Her minor daughter was sexually assaulted by the accused during her stay at TNT. She got to know about the incident in the month of August, 2020 after they came home. She immediately filed and FIR before the Kolasib P/S. Ext. P1 is the FIR and Ext. Her minor daughter was sexually assaulted by the accused during her stay at TNT. She got to know about the incident in the month of August, 2020 after they came home. She immediately filed and FIR before the Kolasib P/S. Ext. P1 is the FIR and Ext. P1 (a) is her signature. During her cross-examination, she admitted that she did not witness the incident. 15 . PW-2/X is the victim child, who deposed to the effect that her mother took her to TNT Home, Kolasib. During her stay, Apa Penglengpunga/appellant touched her breasts and her vagina through her panty. He did this to her 3 (three) times, she was afraid of him (the accused) as he threatened to beat her. She told her mother what the accused did to her, but her mother paid no heed and told her not to mingle with boys/men. After coming out from TNT Home, Apa Freddy-a, who used to stay at TNT Home, informed about the matter to Anu Diki. Anu Diki asked her (‘X’) about the incident and she told her everything. Cross-examination declined by learned D/L Sh. K. Zomuanpuia. 16 . PW-4/Lalramhluni and PW-5/James Lalthangliana are the seizure witnesses to the seizure of the Nauhlan Certificate of the minor child to prove her age. Ext. P-4 is the Nauhlan Certificate. 17 . PW-6/Dr. Lalmuankimi Hmar deposed to the effect that on 25.08.2020, ‘X’ (5 years) who was alleged to be a raped victim was brought before her for medical examination. On interrogation, she stated that she was sexually molested by Lalhlimpuia, a Security Guard at TNT Home by touching her private part. After obtaining consent from the mother of the victim, she conducted the medical examination of the victim girl. She found that the victim was conscious, oriented to time, place and person. She found no marks of violence on her body and no seminal stain or other stain was found and there was also no bruising or laceration on the external genitalia although her hymen was found to be not intact and there was tenderness on her private part. The medical report is exhibited as Ext P-VI During her cross-examination, she stated that the tenderness of the private part of the victim could be caused due to some other reason. 18 . The medical report is exhibited as Ext P-VI During her cross-examination, she stated that the tenderness of the private part of the victim could be caused due to some other reason. 18 . PW-8/Jessica Lalawmpuii is the case I.O, she deposed to the effect that she was posted as ASI at Kolasib P/S sometime from the month of March, 2016 till the end of 2019. Thereafter, she was promoted to S.I and continued to be posted at Kolasib P/S till April, 2021. On 25.08.2020, a written FIR was filed by Lalhundiki w/o James Lalthlangliana of Thingdawl stating that between the month of June – July, 2020, her sister Ramdinthari, took her daughter ‘X’ (5 years) with her to TNT Home, Khuangpuilam, Kolasib where ‘X’ was sexually assaulted by the accused Lalhlimpuia, who was also an inmate of TNT, by touching her breasts and her vagina. Klb P/S Case No. 60/2020 dated 25.08.2020 u/s 6 of POCSO Act was registered and the case was endorsed to her for investigation. In the course of her investigation, she had examined the complainant who stated that her sister Ramdinthari (mother of the victim) was an alcoholic and she was admitted to TNT, Khuangpuilam. Initially, Ramdinthari did not take her minor daughter along with her to TNT Home, Khuangpuilam. Ramdinthari escaped from the said home and when she was again admitted into the said home by the complainant, she took her minor daughter along with her. Ramdinthari was released from TNT Home in the month of August, 2020. Thereafter the complainant came to learn that around the month of June — July, 2020 during her stay at TNT Home, her niece (daughter of Ramdinthari) was sexually assaulted by the accused who was also an inmate of TNT Home. The case I.O also examined the victim, who stated that during her short stay at TNT Home, Khuangpuilam the accused Lalhlimpuia @ Penglengpunga used to carry her around and used to fondle her breasts and vagina. She also stated that the accused did these things to her three times during that period. PW-8 forwarded the victim (‘X’) to District Hospital, Kolasib for medical examination and the doctor opined that her hymen was not intact. She had also sent the victim for recording her statement before the JMFC-II, Kolasib District. She also stated that the accused did these things to her three times during that period. PW-8 forwarded the victim (‘X’) to District Hospital, Kolasib for medical examination and the doctor opined that her hymen was not intact. She had also sent the victim for recording her statement before the JMFC-II, Kolasib District. She examined and recorded the statement of Freddy Vanlalmuanpuia, who was residing at Venglai, Kolasib at that time and he claimed to have witnessed the incident, she had also recorded the statements of all the other available witnesses. She visited the P.O. She had also seized ‘Nauhlan Certificate’ of the victim in order to ascertain the date of birth of the victim and returned the original copy back to the complainant. She had also examined the accused. From her investigation, it was clear that accused Lalhlimpuia s/o Lalruata had sexually assaulted the victim ‘X’ at TNT Home, Khuangpuilam, Kolasib. Hence she found a prima facie case u/s 6 of POCSO Act well established against the accused Lalhlimpuia and sent him to face his trial before the Court. Ext P-II is the Charge Sheet and Ext P-II (a) is her signature. Ext P-III is the Arrest Memo. Ext P-IV is the Seizure Memo. Ext P-V is the Nauhlan Certificate of the victim. During cross-examination, she admitted that she was the arresting as well as the investigating officer in this instant case. She denied that the reason for the delay in filing the FIR was not explained and stated that the victim had stated that she disclosed about the incident to her mother, but her mother did not take any steps. She admitted that she did not know whether the accused and the eye witness had any enmity/hatred/grudge between them. She further stated that the sole eye witness had mentioned the exact place of the incident. 19. The accused on examination under Section 313 of Criminal Procedure, 1973 denied the incriminating evidence that between the month of June-July2020, he had committed aggravated penetrative sexual assault upon the minor victim girl aged 5 yrs by touching her breast and her private part inside TNT Home, Khuangpuilam. He explained that he was working as a worker at TNT Home, Khuangpuilam and was holding the post of Asst. Leader during the time of incident. He explained that he was working as a worker at TNT Home, Khuangpuilam and was holding the post of Asst. Leader during the time of incident. One inmate named Freddy Vanlalmuanpuia has accused him of committing the offence out of hatred and anger as he had seized illegal drugs from his possession several times. Once when Freddy Vanlalmuanpuia escaped from the said home he had then apprehended him. In his opinion this is the reason why Freddy Vanlalmuanpuia accused him of this alleged offence. He did not commit the alleged offence and he did not have any knowledge about the incident. 20 . DW-1/Lalrinfela deposed to the effect that he was a resident of Khuangpuilam, Kolasib and deposed that the accused, Lalhlimpuia was the Security Guard of TNT Kolasib, when the alleged incident was said to have occurred. He was present in the Home at the time of the alleged incident, but he has no knowledge of the incident. In the month of August 2020, he, along with Freddy and others, had escaped from TNT Kolasib. He stated that the said Security Guard/accused, had seized drugs from Freddy and he had also punished him. According to Freddy, the accused Lalhlimpuia/appellant had mistreated him on multiple occasions, including cutting his hair. Freddy has falsely accused him of raping a minor child as an act of revenge. The victim resides with her mother in the female ward, which is inaccessible from the male ward, with around 20 security personnel and counselor in between. Therefore, the wards were not easily accessible as claimed. Findings and decision thereof 21. We have considered the evidence adduced by the witnesses and have also perused the documents available on record. On the perusal of the impugned judgment and order of the learned Trial Court, it is seen that the learned Trial Court had convicted the appellant under Section 6 of the POCSO Act by relying on the deposition of the minor child and on her statement recorded under Section 164 CrPC. The learned Trial Court also found that the testimony of the victim child was corroborated with the medical evidence. 22 . However, we find that the victim child, who is PW-2, has deposed that the appellant had touched her breast and vagina through her panty. He did this to her three times. The learned Trial Court also found that the testimony of the victim child was corroborated with the medical evidence. 22 . However, we find that the victim child, who is PW-2, has deposed that the appellant had touched her breast and vagina through her panty. He did this to her three times. In her statement recorded under Section 164 CrPC, she has stated the same thing, except she did not mention ‘through her panty’. We find that the above act stated to be committed by the appellant may not come under the definition of an offence of aggravated penetrative sexual assault. 23. Section 3 of The Protection of Children from Sexual Offences Act, 2012, describes what constitutes an act of penetrative sexual assault. Section 5 further describes the offence of committing aggravated penetrative sexual assault which is punishable under Section 6 of the POCSO Act. We find it appropriate to highlight Section 3 of the POCSO Act which describes the offence of penetrative sexual offence, for reference:- 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.” Thus, we find that the act of touching her breast and the private part through the panties as deposed by the victim ‘X’ cannot be construed as an offence of penetrative sexual assault under Section 3 of the POCSO Act, and therefore neither can it be an offence of aggravated penetrative sexual assault punishable under section 6 of the POCSO Act, 2012. 24. 24. We have also noted that the child ‘X’ was of the tender age of 5 years at the time of the said incident, wherein her date of birth is recorded as on 10.08.2015 (Ext-4) and on 28.08.2020 when her deposition was recorded, she would still be around 5 years. Thus, we find that though a child witness is not someone to be frowned upon, however, conviction on the basis of the child witness should be accepted with great caution and circumspection. The Apex court in Rameshwar vs. The State Of Rajasthan , reported in AIR 1952 SC 54 , pointed out that Judges should record their opinion whether the child understands the need of speaking the truth, and state why they think so. Otherwise, the credibility of the witness cannot be well established and in some cases, it may become necessary to reject the evidence altogether by the upper tier courts. 25. We find it appropriate to also refer to the judgment of the Apex Court in the case of Pradeep Vs. State of Haryana , (supra) wherein it was had held as under (quote):- “7. We have carefully considered the submissions. The fate of the case depends on the testimony of the minor witness Ajay (PW1). Under Section 118 of the Evidence Act, 1872 (for short, “the Evidence Act”), a child witness is competent to depose unless the Court considers that he is prevented from understanding the questions put to him, or from giving rational answers by the reason of his tender age. As regards the administration of oath to a child witness, Section 4 of the Oaths Act, 1969 (for short “Oaths Act”) is relevant. Section 4 reads thus: “4. As regards the administration of oath to a child witness, Section 4 of the Oaths Act, 1969 (for short “Oaths Act”) is relevant. Section 4 reads thus: “4. Oaths or affirmations to be made by witnesses, interpreters and jurors.—(1) Oaths or affirmations shall be made by the following persons, namely:— (a) all witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give, evidence by or before any court or person having by law or consent of parties authority to examine such persons or to receive evidence; (b) interpreters of questions put to, and evidence given by, witnesses; and (c) jurors: Provided that where the witness is a child under twelve years of age, and the court or person having authority to examine such witness is of opinion that, though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of Section 5 shall not apply to such witness; but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth. (2) .. .. .. .. .. .. .. .. .. .. .. .. ..” Under the proviso to sub Section (1) of Section 4, it is laid down that in case of a child witness under 12 years of age, unless satisfaction as required by the said proviso is recorded, an oath cannot be administered to the child witness. In this case, in the deposition of PW1 Ajay, it is mentioned that his age was 12 years at the time of the recording of evidence. Therefore, the proviso to Section 4 of the Oaths Act will not apply in this case. However, in view of the requirement of Section 118 of the Evidence Act, the learned Trial Judge was under a duty to record his opinion that the child is able to understand the questions put to him and that he is able to give rational answers to the questions put to him. The Trial Judge must also record his opinion that the child witness understands the duty of speaking the truth and state why he is of the opinion that the child understands the duty of speaking the truth. 8. The Trial Judge must also record his opinion that the child witness understands the duty of speaking the truth and state why he is of the opinion that the child understands the duty of speaking the truth. 8. It is a well settled principle that corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. A child witness of tender age is easily susceptible to tutoring. However, that by itself is no ground to reject the evidence of a child witness. The Court must make careful scrutiny of the evidence of a child witness. The Court must apply its mind to the question whether there is a possibility of the child witness being tutored. Therefore, scrutiny of the evidence of a child witness is required to be made by the Court with care and caution. 9. Before recording evidence of a minor, it is the duty of a Judicial Officer to ask preliminary questions to him with a view to ascertain whether the minor can understand the questions put to him and is in a position to give rational answers. The Judge must be satisfied that the minor is able to understand the questions and respond to them and understands the importance of speaking the truth. Therefore, the role of the Judge who records the evidence is very crucial. He has to make a proper preliminary examination of the minor by putting appropriate questions to ascertain whether the minor is capable of understanding the questions put to him and is able to give rational answers. It is advisable to record the preliminary questions and answers so that the Appellate Court can go into the correctness of the opinion of the Trial Court.” 26. In the present case, we have noted that when the statement of the child ‘X” was recorded under Section 164 CrPC, some preliminary questions were asked, however, there is nothing to show that the JMFC who recorded her statement, was satisfied that the child could understand the questions put to her or that she could give rational answers. The concerned JMFC was also not a prosecution witness to prove the same. 27. We are therefore of the considered opinion that when the victim child was aged only 5 years, it is imperative in terms of the judgment of the Apex Court in Pradeep Vs. The concerned JMFC was also not a prosecution witness to prove the same. 27. We are therefore of the considered opinion that when the victim child was aged only 5 years, it is imperative in terms of the judgment of the Apex Court in Pradeep Vs. State of Haryana (Supra), that the learned Trial Judge should have asked preliminary questions to the child to be satisfied that the child was able to understand the questions put to her and she understood the duty of speaking the truth. No such steps were taken by the learned Trial Court. Further, we find that the alleged act of the appellant is not an offence punishable under section 6 of the POCSO. We find that even if the charge against the appellant was to be reduced to a lesser charge, the evidence of the child ‘X’ cannot be relied upon for reasons already discussed above. The cited eye witness named ‘Freddy Vanlalmuanpuia’, was not produced to give his deposition in the court and there can be no conviction based solely on a medical examination report, exhibited as Ext.P-VI. 28. In view of the above findings, we are constrained to allow the instant appeal by setting aside the impugned Judgment & Order dated 19.12.2023, passed by the District & Sessions Judge-cum-Judge, FTC, Kolasib in SC(K) No. 10/2021 A/o of a Crl. Tr. Ex. No. 194/2021, Kolasib PS Case No. 60/2020, on finding that the prosecution have failed to establish their case under Section 6 of the POCSO Act. The appellant Sh. Lalhlimpuia, is thus acquitted of the charge under section 6 of the POCSO Act and is set at liberty unless required in any other case. 29. Accordingly, the appeal stands allowed and disposed of. 30. In appreciation of the services rendered by Mr. H. Zodinsanga, the learned Amicus Curiae and Mr. Jordan Rohmingthanga, learned Legal Aid Counsel, the State Legal Services Authority is to pay the learned Amicus Curiae a fee of Rs. 9500/- and also pay the requisite fees to learned Legal Aid Counsel as per existing rates.