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2025 DIGILAW 599 (GAU)

Lalliansanga S/o K. K. Thanga v. State of Mizoram

2025-04-03

MARLI VANKUNG

body2025
JUDGMENT & ORDER : MARLI VANKUNG, J. Heard Mr. B. Lalramenga, learned counsel for the appellant along with Ms.Vanneihsiami, learned Addl. Public Prosecutor and Mrs. Emily L. Chhangte, learned Legal Aid Counsel for respondent No. 2. 2 . This is an appeal filed u/s 415 of the Bharatya Nagarik Suraksha Sanhita (BNSS), 2023 against the Judgment & Order dated 30.08.2024, passed by the Presiding-Officer Fast Track Special Court, POCSO Act, 2012, Aizawl, Mizoram in Crl. Trl No. 48/2021 by which the appellant was convicted u/s 4 of the POCSO Act, 2012 and sentence to undergo 10 years imprisonment with a fine of Rs. 2000/, in default rigorous imprisonment of 2 (two) months. 3 . Brief facts of the case is that an FIR was filed by the informant on 11.10.2020 to the effect that her daughter ‘X’ aged 16 years was taken to Ahimsa Hotel, Zarkawt on 09.10.2020 at around 11:00 am by the husband of her younger sister, Lalliansanga/appellant. He grabbed the breasts of her daughter and even inserted his finger inside her private part. The incident was revealed to her at 6:00 pm on 10.10.2020, where she had mentioned that he even made her touch his private part. A case u/s 4 of the POCSO Act was registered as AW-PS Case No. 37/2020 dated 11.10.2020. During investigation, the PO was visited and the prosecutrix along with the other prosecution witnesses were examined and their statements recorded. The Birth Certificate of the prosecutrix was seized in the presence of 2 witnesses. The prosecutrix and the accused were also sent for medical examination. After receiving the medical examination report and from the statements made by the prosecution witnesses, the case I.O found prima facie case against the accused u/s 4 of the POCSO Act and accordingly, charge-sheet was filed. 4 . The learned Trial Court framed charge u/s 4 of the POCSO Act to which the accused pleaded not guilty and claimed for trial. During trial, as many as 9 prosecution witnesses were examined. The accused on examination u/s 313 Cr.P.C denied the incriminating evidence against him. The learned Trial Court after hearing both the parties found the accused/appellant guilty of the charge u/s 4 of the POCSO Act and convicted him to undergo his term of sentence as mentioned above. Aggrieved, the appellant has filed the instant appeal. 5 . Mr. The accused on examination u/s 313 Cr.P.C denied the incriminating evidence against him. The learned Trial Court after hearing both the parties found the accused/appellant guilty of the charge u/s 4 of the POCSO Act and convicted him to undergo his term of sentence as mentioned above. Aggrieved, the appellant has filed the instant appeal. 5 . Mr. B. Lalramenga, learned counsel for the appellant submits that on perusal of the deposition of the prosecution witnesses, it is seen that the evidence of the prosecutrix, who deposed as PW-2 has clearly stated that the accused/appellant did not sexually assault her in any way and that she had simply mentioned that the accused had sex with her only because the wife of the accused/appellant shouted at her angrily when they came home late on the date of the alleged incident, she had made the statement only to get rid of the wife of the appellant who is her aunty and that no such incident had happened.The same was reiterated in her cross-examination. 6 . The learned counsel also pointed out that in the cross-examination of the informant/PW-1, she had admitted that the prosecutrix had informed her that the accused/appellant had not sexually assaulted her with regard to the said incident, that there was no discussion on 09.10.2020 with the family member regarding the alleged incident. PW-1 had also admitted that she had submitted the FIR only because her younger sister, Lalnunthari yelled so much that she speculated that the said incident occurred. PW-1 had also admitted that her daughter/prosecutrix did not inform her anything on 09.10.2020 and that she was also not having abnormal behavior when she came back home. The learned counsel further submitted that the Medical Doctor who had conducted medical examination of the prosecutrix had noted that the prosecutrix mentioned to her that she had sexual intercourse when she was about 11 years old. The learned counsel further submitted that the Medical Doctor who had conducted medical examination of the prosecutrix had noted that the prosecutrix mentioned to her that she had sexual intercourse when she was about 11 years old. Further the Doctor had deposed that on careful examination, she found no fresh injury or laceration of her external genital area and in her cross-examination, the Doctor had mentioned that she had examined the victim on 10.11.2020, which is two days after the alleged incident i.e 09.11.2020 and she agreed to the suggestion that the ruptured hymen(old), would not amount to the incident said to occur on 09.10.2020, she had also admitted that there is no conclusive prove to show that the victim was sexually assaulted by the accused on 09.10.2020. The learned counsel thus submitted that the prosecution has failed to establish their case against the appellant u/s 4 of the POCSO Act. He relied on the judgment of the Division Bench of this Court in Manirul Islam Vs. State of Assam & Anr . reported in 2021 (3) GLT128 (Para 37,43,44,49 & 51). 7. The learned counsel for the appellant further submitted that though the prosecutrix in her statement recorded u/s 164 CrPC, had stated that the appellant had committed sexual assault upon her by touching her breasts and her private part and made her touch his private part, however, the statement recorded u/s 164 CrPC is not a substantial evidence and can be used only for corroborative purpose. In support of the submission, the learned counsel had relied upon the judgment of the Apex Court in Baji Nath Sah Vs. State of Bihar reported in (2010) 6 SCC 736 (Para 6) and in Utpal Das & Anr. Vs. State of West Bengal reported in (2010) 6 SCC 493 (Para 16). 8 . Ms.Vanneihsiami, learned Addl. Public Prosecutor for the State respondent, in all fairness submits that the prosecutrix, who was examined as PW-2 has turned hostile by not implicating the accused/appellant of committing sexual assault upon her. However, she has not been declared as a hostile witness. She therefore, prayed that this Court may pass an appropriate order as found fit. 9 . Mrs. Emily L. Chhangte, learned counsel for respondent No. 2 also submits that the Court may pass the appropriate order in view of the fact that PW-2 has turned hostile. 10 . However, she has not been declared as a hostile witness. She therefore, prayed that this Court may pass an appropriate order as found fit. 9 . Mrs. Emily L. Chhangte, learned counsel for respondent No. 2 also submits that the Court may pass the appropriate order in view of the fact that PW-2 has turned hostile. 10 . After considering the submissions of the learned counsels, I have also perused the documents on record. The evidence adduced by the prosecution witnesses, is examined and analysed herein under: 11 . It is seen that PW-1 is the informant, who deposed to the effect that the victim in the instant case is her youngest daughter out of her 8 children. She did not know the date of birth of her daughter as she is an illiterate and cannot read or write. During the year 2020, as far as she knew, her daughter was a minor and did not possess a voter's ID and did not cast her vote. She couldn’t recollect and had no idea of the date of the incident, but she knew it was during the previous year. The victim needed a mobile to attend online classes, but she did not have one, so she planned to repair the mobile belonging to elder brother and had asked her for money which she did not give. Later, she learnt that the prosecutrix had asked the accused for money, who was her uncle in good faith, and the accused gave her money and also helped her repair the mobile. She followed the accused till Zarkawt for repairing the mobile. After repairing, the accused took her to Ahimsa hotel, and there, inside the hotel, he sexually assaulted the victim by touching her private parts and also her breast. They did not know about the incident initially, but her sister, who was the wife of the accused, suspected her husband when they were late to come home, and that she( wife of the accused) was also informed by the victim, from whom she(PW1) came to know about the incident. She asked the victim about the incident, and she told her that they went to Zarkawt to repair her mobile with the accused and also went to Ahimsa hotel, but her aunt, the wife of the accused, scolded her so badly that she did not answer anything due to fear of her aunt. She asked the victim about the incident, and she told her that they went to Zarkawt to repair her mobile with the accused and also went to Ahimsa hotel, but her aunt, the wife of the accused, scolded her so badly that she did not answer anything due to fear of her aunt. After consulting with the family, her siblings and the wife of the accused, they decided to lodge a complaint with the police. She lodged an FIR at the Aizawl Police Station verbally, which was put into writing by the police and she put her right thumb impression. As far as she remembered, they lodged an FIR after two or three days of the incident. She was asked by the police personnel to bring the original Birth Certificate of the victim and the same was given to the police in the police station and the original was given back to her after making a photocopy of the same. Exbt. P-1/PW 1 is the FIR submitted by her. Exbt. P-1(a) is her right thumb impression. It is however seen that PW-1 during her cross examination had stated that her daughter informed her that the accused had not sexually assaulted her with regard to the said alleged incident. There was no discussion on 09.10.2020 with the family member regarding the alleged incident. She had submitted an FIR (the date of submission cannot be recalled) only because her youngest sister, Lalnunthari yelled so much that she speculated that the said incident occurred. She further stated that she couldn’t read nor write and admitted that the contents of the FIR was not read over to her after it was put down into writing by one police person. She did not know the contents of her statement recorded by police under 161 CrPC as the same was not read over to her after being recorded. Her daughter did not inform her anything on 09.10.2020 and she also did not have abnormal behaviour when she came back at home. This court thus finds that the deposition of the informant /PW-1 has been shaken in her cross examination and it is also noted that the prosecutrix had not informed PW-1 about the incident. Therefore this court finds that the deposition of PW-1 do not support the prosecution case. 12 . This court thus finds that the deposition of the informant /PW-1 has been shaken in her cross examination and it is also noted that the prosecutrix had not informed PW-1 about the incident. Therefore this court finds that the deposition of PW-1 do not support the prosecution case. 12 . PW-2 is the prosecutrix herself, deposed to the effect that she knew the accused, Lalliansanga, who is her aunt Lalnunthari’s husband. She deposed that she had a good relationship with the accused and considered him friendly. She could not recall the exact date of the incident but remembered going out with the accused to repair her elder sister's damaged mobile phone at Zarkawt in 2020. Initially, she asked her mother for money to repair the phone, but her mother refused. She then asked the accused, who helped her repair the phone and paid for the expenses. Afterward, they went to Ahimsa hotel at Zarkawt, where they spent about three hours together. When they failed to return home for three hours, her aunt (the accused's wife) suspected them and started shouting. Her aunt was angry and repeatedly asked her if the accused had sex with her. To appease her aunt, she told her that the accused had sex with her, but this was not true. She mentioned that a relative had playfully touched her private parts in the past, but there was no penetrative sexual assault. On 11.10.2020, her mother lodged an FIR at the Aizawl police station where she underwent a medical examination at the Civil Hospital in Aizawl, and her judicial statement was recorded by the Magistrate, Aizawl. Exbt. P-2/PW-2 is the judicial statement. Exbt. P-2(a) is her signature. Exbt. M-1 is the copy of the Birth Certificate. During cross-examination, she clarified that she was not sexually assaulted by the accused on 09.10.2020 and stated that the accused had not touched her or committed any form of sexual assault and that she lied to her aunt by saying the accused had sex with her to appease her anger and that there was no incident of sexual assault on 09.10.2020, that a relative, not the accused, had touched her private parts in the past. 13 . 13 . It is thus seen that the prosecutrix has not implicated the accused/appellant and she denied that the appellant had committed any sexual assault upon her and she had further admitted that she had simply stated that the appellant had sex with her only to rid of the wife of the appellant, who was shouting angrily at her that day i.e, on 09.10.2020, for returning home late with the appellant. It is noted that inspite of the prosecutrix not implicating the accused/appellant, she has not been declared as a hostile witness by the prosecution. A perusal of her statement recorded under Section 164 CrPC, exhibited as Ext-3, shows that she had stated before the JMFC that the appellant had committed sexual assault upon her by touching her breast and her private part, however, it has been held by the Apex Court in catena of decision that the statement recorded under section 164 CrPC cannot be used as a substantive evidence but may be used for corroborative purposes. This court finds it fit to refer to the judgment of the Apex court in Baij Nath Sah Vs. State of Bihar (supra) wherein the Apex court held that: “6. We have heard the learned counsel for the parties and have gone through the record. We see from the judgments of the courts below that the only material that has been used against the appellant is the statement under Section 164 CrPC. This Court in Ram Kishan Singh v. Harmit Kaur [(1972) 3 SCC280 : 1972 SCC (Cri) 493] has held that a statement under Section 164 CrPC is not substantive evidence and can be utilised only to corroborate or contradict the witness vis-à-vis statement made in court. In other words, it can be utilised only as a previous statement and nothing more.” For the above reasons, this court finds that the testimony of the prosecutrix do not support the prosecution case. 14 . On further perusal of the evidence of the other prosecution witnesses, it is seen that PW-3 is the elder brother of the prosecutrix who had simply stated that his mother had informed him through mobile phone that the appellant had sexually assaulted the prosecutrix. His evidence was only secondary evidence, since he had no direct knowledge of the incident. On further perusal of the evidence of the other prosecution witnesses, it is seen that PW-3 is the elder brother of the prosecutrix who had simply stated that his mother had informed him through mobile phone that the appellant had sexually assaulted the prosecutrix. His evidence was only secondary evidence, since he had no direct knowledge of the incident. PW-4 is the prosecution witness, who was said to work at Ahimsa Hotel, and his statement was only to the effect that he had seen the appellant coming to the Ahimsa Hotel. PW-5 & 6 are the seizure witnesses to the seizure of the Birth Certificate of the prosecutrix. The date of birth of the prosecutrix who was said to be born on 10.01.2004 is not a disputed fact. PW-7 is the Doctor who examined the prosecutrix on 11.10.2020,Ext. P-4 is the medical examination report. The victim was physically and mentally sound. On genital examination, there was no fresh injury or laceration of external genitalia. Her hymen was ruptured(old). It is seen that though the medical examination of the prosecutrix revealed that her hymen was ruptured (old), she had clearly stated in the cross-examination that the old ruptured hymen did not amount to the incident which occurred on 09.10.2020. PW-7 also deposed that the prosecutrix had told her that she was sexually assaulted when she was of 11 years, however in her cross examination she admitted that there was nothing that show that this was caused by the appellant. PW-8 is the Doctor who examined the appellant and found him to be physically and mentally healthy. PW-No.11 is the case I.O, who found prima facie case against the appellant based on the statements of the prosecution witnesses and the medical examination report. This court has however noted that the statements of the prosecution witnesses before the court do not implicate the accused appellant of committing an offence under section 4 of the POCSO Act. 15 . Thus, from the above findings and analysis of the evidence of the prosecution witnesses, it is clear that there is no evidence to establish the fact that the appellant had committed sexual assault upon the prosecutrix u/s 4 of the POCSO Act. 16 . Accordingly, this Court finds it fit to set aside the Judgment & Order dated 30.08.2024 passed by the Presiding-Officer Fast Track Special Court, POCSO Act, 2012, Aizawl, Mizoram in Crl. 16 . Accordingly, this Court finds it fit to set aside the Judgment & Order dated 30.08.2024 passed by the Presiding-Officer Fast Track Special Court, POCSO Act, 2012, Aizawl, Mizoram in Crl. Trl No. 48/2021 by which the appellant was convicted u/s 4 of the POCSO Act, 2012 and sentenced to undergo 10 years imprisonment with a fine of Rs. 2000/-, in default rigorous imprisonment of 2 (two) months. 17 . In view of the above, the appellant is acquitted of the charge u/s 4 of the POCSO Act and is set at liberty, unless required in other case. 18 . In appreciation of the assistance rendered by Mrs. Emily L. Chhangte, learned Legal Aid Counsel, the fee as per the prescribed mode is to be duly paid to her by the State Legal Services Act. 19 . Accordingly, Crl.A. No. 39 of 2023 stands allowed and disposed of.