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2025 DIGILAW 689 (GAU)

Lawmsangkima S/o Samuela v. State of Mizoram

2025-04-30

MARLI VANKUNG, MICHAEL ZOTHANKHUMA

body2025
JUDGMENT AND ORDER : Michael Zothankhuma, J. Heard Mr. C. Tlanthianghlima, learned counsel for the appellant. Also heard Mrs. Linda L. Fambawl, learned Public Prosecutor for the State as well as Mr. Lalrokunga Pautu, learned Legal Aid Counsel for the respondent No. 2. 2. This appeal has put to challenge the Judgment and Order dated 21.10.2024 passed by the Presiding Officer, Fast Track Special Court, POCSO Act, 2012, Aizawl in Sessions Case No. 36/2020 (Criminal Trial No. 679/2020), by which the appellant has been convicted under Section 6 of the POCSO Act, 2012 and sentenced to undergo Rigorous Imprisonment for 20 years with a fine of Rs. 2000/-, in default, to suffer Rigorous Imprisonment for two months. 3. The prosecution case in brief is that an FIR was submitted by the mother of the victim, who is the Prosecution Witness No. 1 (PW-1) on 20.10.2019, stating that her daughter of 11 years had been raped by the appellant during September, 2019 and the beginning of October, 2019 in their residence.Moreover, the appellant had also touched the victim’s private parts many times. 4. Pursuant to the FIR, the Mamit Police Station registered Mamit PS Case No. 0/2019 dated 20.10.2019 under Section 6 of the POCSO Act, 2012. However, the same was thereafter re-registered under the Kawrthah Police Station as Kawrthah PS Case No. 47/2019 dated 01.11.2019. In pursuant to the FIR, the investigation into the allegation of rape was initiated and the victim was sent for medical examination on 21.10.2019, wherein the Doctor opined that the hymen perineum of the victim was ruptured. 5. The appellant was also arrested on 20.10.2019 and after completion of the investigation, the second I.O, PW-8 submitted the charge-sheet, having found a prima facie case under Section 6 of the POCSO Act, 2012 against the appellant. 6. Charge under Section 6 of the POCSO Act was framed against the appellant for having committed aggravated penetrative sexual assault on the victim, to which the appellant denied the charge and claimed to be tried. Thereafter, 7 prosecution witnesses and 2 defence witnesses were examined by the learned Trial Court. 7. The appellant was thereafter examined under Section 313 CrPC, where he denied the evidence adduced against him. Thereafter, 7 prosecution witnesses and 2 defence witnesses were examined by the learned Trial Court. 7. The appellant was thereafter examined under Section 313 CrPC, where he denied the evidence adduced against him. The learned Trial Court thereafter came to a finding that the appellant had committed the offence under Section 5(m) of the POCSO Act and was thus liable to be punished under Section 6 of the POCSO Act, 2012. Accordingly, the appellant was convicted under Section 6 of the POCSO Act and sentence was imposed him, as stated earlier. 8. The learned Amicus Curiae appearing for the appellant submits that the testimony of the victim is not reliable, as the victim had stated in her statement given under Section 164 CrPC on 22.10.2019 that the sexual assault on her by the appellant, had taken place only twice. However, in her testimony before the learned Trial Court, the victim had stated that the sexual assault on her had taken place many times. He also submits that in the statement of the victim under Section 164 CrPC, the victim had stated that the offence took place inside the house, while in her testimony before the Trial Court the victim had stated that the offence sometimes took place outside the house also. Thus, there is discrepancies in her statement and she could not be said to be a sterling witness, on the basis of which conviction could be made. 9. The learned Amicus Curiae submits that the victim and the other Prosecution Witnesses have not made a mention of any specific date, month or year, when the alleged offences had taken place. Further, as per the evidence of PW-4, the victim was in Buannel Children’s Home, Mamit during the year 2019. As such, the victim could not have been raped in her parent’s house during the year 2019, if the victim was living in a children’s home. He also submits that Section 27 of the POCSO Act had been violated, inasmuch as, a male Doctor had examined the victim, while the law required the examination of the victim girl by a female Doctor. 10. The learned Amicus Curiae submits that the contradiction in the evidence of the victim vis-à-vis her statement recorded under Section 164 CrPC, shows that there is no consistency in the stand of the victim. 10. The learned Amicus Curiae submits that the contradiction in the evidence of the victim vis-à-vis her statement recorded under Section 164 CrPC, shows that there is no consistency in the stand of the victim. As such, the victim cannot be said to be a sterling witness, in terms of the Judgment of the Supreme Court in the case of Rai Sandeep @ Deepu Vs. State of NCT of Delhi reported in 2012 8 SCC 21 . 11. The learned Amicus Curiae also submits that as the allegation of aggravated penetrative sexual assault had taken place when the victim was 11 years old, it was incumbent on the part of the learned Trial Court to have asked preliminary questions to the victim, prior to recording her evidence. This was necessary to satisfy the Court that the victim was able to understand the questions put to her and was capable of giving rational answers to the same. In support of his submission, the learned Amicus Curiae has relied upon the Judgment of the Supreme Court in the case of Pradeep Vs. State of Haryana reported in 2023 SCC OnLine SC 777 and the Judgment of a Division Bench of this Court in the case of C. Vanramnghaka Vs. State of Mizoram & Another in Criminal Appeal No. 12/2023 , which was disposed of on 25.01.2024. 12. The learned Amicus Curiae further submits that the victim girl being a Mizo, the evidence should have been recorded in the Mizo language. However, the evidence was recorded in the English language, which was not proper. 13. The learned Amicus Curiae thus submits that in view of the reasons stated above, the learned Trial Court committed an error in convicting the appellant on the sole evidence of the victim girl. As such, the impugned Judgment and Order should be set aside and the appellant should be acquitted of the charge under Section 6 of the POCSO Act, 2012. 14. The learned Addl. Public Prosecutor for the State submits that minor discrepancies in the statements of the witnesses, which does not go to the core of the issue, should be overlooked. As such, the impugned Judgment and Order should be set aside and the appellant should be acquitted of the charge under Section 6 of the POCSO Act, 2012. 14. The learned Addl. Public Prosecutor for the State submits that minor discrepancies in the statements of the witnesses, which does not go to the core of the issue, should be overlooked. In the present case, the core issue being the question whether rape had been committed by the appellant on the victim girl and the same having been proved by the testimony of the victim girl, which has been corroborated by the victim’s statement recorded under 164 CrPC, there was no infirmity in the finding of the learned Trial Court, that the offence of Section 5(m) of the POCSO Act, 2012 had been committed by the appellant. 15. The learned Addl. Public Prosecutor further submits that though the learned Amicus Curiae had submitted that no date, month or year had been mentioned as to when the offences had been committed, the evidence of PW-7, who is the first I.O and the evidence of PW-8, who is the second I.O, clearly shows that the FIR had mentioned that the offences/rapes had been committed between the month of September to October, 2019. Further, the victim in her statement under Section 164 CrPC, had stated that one incident had occurred in September, thus corroborating the evidence that an incident of rape had occurred in the month of September, 2019. 16. The learned Addl. Public Prosecutor also submits that the judgments of the Supreme Court in the case of Pradeep (Supra) and C. Vanramnghaka (Supra) are not applicable to the facts of the present case, inasmuch as, the victim was 13 years of age when her evidence was recorded. Also, the above judgments referred to require the asking of preliminary questions before recording the testimony of a child witness who is below 12 years, as no oath was required to be given to a minor below 12 years of age, in terms of Section 4(1) of the Oath’s Act, 1969. The learned Addl. Public Prosecutor thus, submits that no grounds have been made out for interfering with the impugned judgment & order and as such, the appeal should be dismissed. 17. Mr. The learned Addl. Public Prosecutor thus, submits that no grounds have been made out for interfering with the impugned judgment & order and as such, the appeal should be dismissed. 17. Mr. Lalrokunga Pautu, learned Legal Aid Counsel for the informant/respondent No. 2 submits that the foundational facts regarding the rape of the victim girl by the appellant has been proved by the testimony of the victim. The same has been corroborated by her statement recorded under Section 164 CrPC, the medical report and evidence of the Doctor, who stated that the victim’s hymen was ruptured. 18. The learned counsel for respondent No. 2 further submits that the evidence, regarding the giving of money by the appellant to the victim, has not been disputed by the appellant. Further, the victim being 13 (thirteen) years of age at the time of recording her evidence by the learned Trial Court, there was no requirement for the learned Trial Court to have asked preliminary questions, to satisfy itself as to whether the victim girl understood the questions put to her and/or was capable of giving rational answers to the same. The recording of the victim’s evidence by the learned Trial Court implies that the Trial Court was satisfied that the victim was able to understand the questions put to her and give rational answers to the same, as the victim was studying in Class-7 at the time of recording her evidence. 19. The learned counsel for the respondent No.2 has submitted Letter No. C.31013/8/2018–CWC(MMT)/84 dated 22.10.2019, issued by one Mr. Ronghakliana Chhangte, Chairperson, Child Welfare Committee, Mamit District, Mamit, which is to the effect that the victim had been ordered to be kept in Buannel Home for a period of 6 months, with effect from 22.10.2019 to 21.03.2020. The learned counsel for the respondent No.2 submits that in view of the above letter No. C.31013/8/2018–CWC(MMT)/84 dated 22.10.2019, issued by the Child Welfare Committee, Mamit District, Mamit, it is crystal clear that the victim was put in the Children’s Home only after the FIR had been filed on 20.10.2019 and was living in her parent’s home at the relevant time when the incidents of rape had occurred. 20. 20. The learned counsel for the respondent No. 2 further submits that the requirement of complying with Section 27 of POCSO Act, wherein, the victim girl is to be examined by a female Doctor, is only to ensure the protection of the victim and the violation of the same cannot confer any benefit to the accused/appellant, as held by the Orissa High Court in the case of Barika Pradhan Vs. State of Odisha reported in JCRLA No. 20/2020. The learned counsel for the respondent No. 2 further submits that there is no whisper of any enmity between the appellant or the victim’s family, so as to enable the appellant to take a stand that a false case has been foisted upon him. In this regard, he has relied upon the judgment of the Gauhati High Court in the case of Budheswar Hazarika Vs. State of Assam, Represented by the Public Prosecutor reported in 2024 SCC OnLine Gau 130. He also submits that minor discrepancies in the statements of the witnesses should be disregarded and in this regard, he has relied upon the judgment of the Supreme Court in the case of Yogesh Singh Vs. Mahabeer Singh and Others reported in (2017) 11 SCC 195 21. The learned counsel for the respondent No. 2 also submits that conviction can be based on the sole testimony of the prosecutrix/victim. In support of his submission, he has relied upon the judgments of the Supreme Court in the case of State of Himachal Pradesh Vs. Sanjay Kumar Alias Sunny reported in (2017) 2 SCC 51 and Phool Singh Vs. The State of Madhya Pradesh reported in (2022) 2 SCC 74 . The learned counsel for respondent No. 2 thus submits that as the learned Trial Court had not committed any error in coming to a finding that the appellant had committed aggravated penetrative sexual assault on the victim girl of 11 years, the appeal should be dismissed. 22. We have heard the learned counsels for the parties. 23. As can be seen from the statement of the victim (PW-2) recorded under Section 164 CrPC on 22.10.2019 and the testimony of the victim (PW-2) on 19.02.2021, the victim has identified the appellant as the person who had committed penetrative sexual assault on the victim on many occasions. 24. 22. We have heard the learned counsels for the parties. 23. As can be seen from the statement of the victim (PW-2) recorded under Section 164 CrPC on 22.10.2019 and the testimony of the victim (PW-2) on 19.02.2021, the victim has identified the appellant as the person who had committed penetrative sexual assault on the victim on many occasions. 24. The submission of the learned Amicus Curiae that the victim in her statement under Section 164 CrPC had stated that the appellant had raped her only twice is not correct, inasmuch as, a careful perusal of her statement shows that the victim had stated that the appellant used to come to their house in the morning while she was asleep and used to carry her to the long chair and made her lie down there. Then the appellant used to touch her private parts and put his finger inside her private parts. 25. The statement of the victim under Section 164 CrPC, which is in vernacular, leaves no room for doubt that the offence of penetrative sexual assault had been committed on the victim by the appellant on many occasions. Though, the victim girl has not stated anything regarding she being raped outside her house in her statement given under Section 164 CrPC, the same does not take away the fact that the victim had been subjected to penetrative sexual assault by the appellant inside the house. 26. With regard to the submission made by the learned counsel for the respondent No. 2 that the giving of money by the appellant to the victim was not a disputed fact, this Court finds that the same is a disputed fact, inasmuch as, the appellant in his examination under Section 313 CrPC has denied giving the victim any money or of having committed any penetrative sexual assault on the victim. 27. The above being said, the deposition of the Doctor, who examined the victim, i.e. PW-5 is, to the effect that the victim told him that the appellant had raped her. On examination of the victim, PW-5 found that her hymen was ruptured, though there was no bruising or laceration of the external genitals. 28. The evidence of PW-5 is reproduced herein as follows: “I am a Medical Officer @ District Hospital, Mamit since June 2018. On examination of the victim, PW-5 found that her hymen was ruptured, though there was no bruising or laceration of the external genitals. 28. The evidence of PW-5 is reproduced herein as follows: “I am a Medical Officer @ District Hospital, Mamit since June 2018. On 20.10.2019 I received a requisition from Officer in Charge Mamit PS to conduct a medical examination of the victim aged about 11 years and I conducted the examination the same day at around 1 pm. Victim was accompanied by Women Police and her mother. I took the consent of her mother Vanlalngenchhani. I ask the victim X and she told me that some one to two weeks back while the victim was baby sleeping her three years old sister at her home. The accused came and caught by her arm and took her near the bathroom and removes her cloth things even though she tries her best to resist, she was overwhelmed and the accused penetrates her vagina against her consent. She even told me that this was not the first incident of this kind the accused assaulted her sexually. The victim was physically and mentally normal. There were no marks of violence on the body and she was not influence under alcohol or drugs at the time of the examination. On her genital examination there was no bruising or laceration of external genital and her hymen was ruptured and there was no sign of infection. I put my medical examination record. I put my medical examination report as exhibit-P4 and my signature as exhibit-P4(a). Exhibit-P4(9 pages) – is the medical report prepared by me. Exhibit-P4(a) – is my signature.” 29. Section 27 of the POCSO Act, 2012 states as follows: “27. Medical examination of a child.—(1) The medical examination of a child in respect of whom any offence has been committed under this Act, shall, notwithstanding that a First Information Report or complaint has not been registered for the offences under this Act, be conducted in accordance with section 164A of the Code of Criminal Procedure, 1973 (2 of 1973). (2) In case the victim is a girl child, the medical examination shall be conducted by a woman doctor. (3) The medical examination shall be conducted in the presence of the parent of the child or any other person in whom the child reposes trust or confidence. (2) In case the victim is a girl child, the medical examination shall be conducted by a woman doctor. (3) The medical examination shall be conducted in the presence of the parent of the child or any other person in whom the child reposes trust or confidence. (4) Where, in case the parent of the child or other person referred to in sub-section (3) cannot be present, for any reason, during the medical examination of the child, the medical examination shall be conducted in the presence of a woman nominated by the head of the medical institution.” 30. On perusing Section 27 of the POCSO Act, 2012 and keeping in view the decision of the High Court of Orissa in Barika Pradhan (Supra) , this Court is also of the view that the examination of the victim by a male Doctor is only for the benefit of the victim and the non-compliance of the said Section 27 does not confer any benefit in favour of the accused person, unless the accused person is able to show that some prejudice has been caused to him by the said act. In the present case, the appellant has not been able to show what prejudice had been caused to him, by the act of a male Doctor, examining the victim girl. 31. With regard to the stand taken by the Amicus Curiae that no date, month or year had been mentioned in the evidence of the witnesses, as to when the incidence of penetrative sexual assault had occurred, this Court finds that the evidence of the case I.Os, i.e., PW-7 & PW-8, clearly shows that the incident had occurred sometime in September to October, 2019, as submitted in the FIR. 32. The evidence of the PW-1, who is the mother of the victim, is to the effect that the victim had told her in October, 2019 that she had been raped by the appellant. Thus, though a specific date was not mentioned, it cannot be said that a specific month or year had not been mentioned in the evidence of the witnesses, with regard to when the offence of penetrative sexual assault was committed on the victim by the appellant. 33. Thus, though a specific date was not mentioned, it cannot be said that a specific month or year had not been mentioned in the evidence of the witnesses, with regard to when the offence of penetrative sexual assault was committed on the victim by the appellant. 33. Though the evidence of the victim girl does not mention the date, month or year when the incident of penetrative sexual assault had occurred, the victim has specifically mentioned that she had been raped in her statement recorded under Section 164 CrPC, in September. Further the FIR mentions the time period when the incidents occurred. This, in our view is a corroboration of the evidence of PW-1, PW-7 & PW-8 that the appellant had committed penetrative sexual assault on the victim between September to October, 2019. Just because the exact date was not stated does not ipso facto mean that the offence did not occur. 34. With regard to the stand taken by the learned Amicus Curiae that prior to recording the evidence of the victim, it was the duty of the Judicial Officer to ask preliminary questions with a view to ascertain whether the minor victim could understand the questions put to her and was in a position to give rational answers, by relying upon the Judgments of the Supreme Court in Pradeep (Supra) and in the case of C. Vanramnghaka (Supra) , we are of the view that the said Judgments do not apply to the facts of this case. The issue of a Court satisfying itself as to whether a minor witness could understand the questions put to him or her and whether the minor was in a position to give rational answers, had been answered by the Supreme Court in the above cases, in relation to Section 4 (1) of the Oaths Act, 1969, wherein it held that for the evidence of a child witness under 12 years of age to become admissible, the same required the satisfaction of the Court that the child could understand questions and give rational answers, as an oath was not required to be administered to a child witness below 12 years. It was due to a child witness being easily susceptible to tutoring that the Court was to apply its mind whether there was a possibility of the child witness being tutored. It was due to a child witness being easily susceptible to tutoring that the Court was to apply its mind whether there was a possibility of the child witness being tutored. However, in the present case, though the victim was 11 years when she had been subjected to penetrative sexual assault, her evidence was recorded by the Trial Court when she was 13 years of age. As such, there was no rule that the testimony of a 13 year child witness could not be relied upon, only because preliminary questions had not been put to her by the Trial Court. On that count, the submission made by the learned Amicus Curiae that the testimony of the victim could not be relied upon, cannot be accepted by us. 35. With regard to the contention of the learned Amicus Curiae that the learned Trial Court should have recorded the evidence of the witnesses in the Mizo language, we find that there is nothing to show that any prejudice has caused to the appellant just because the evidence given by the witnesses was recorded in the English language. In any event, the recording of the evidence of the witnesses in the English language by the learned Trial Court had been accepted by the witnesses themselves, as they have given their signatures in the form after the evidences were read over to them and which they accepted, inasmuch as, the words “RO & AC” has been affixed in record of the evidence of the witnesses. 36. In the case of Rai Sandeep (Supra) , the Supreme Court has held that a sterling witness should be of a very high quality and calibre, whose testimony should be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant was the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely oral, documentary and material object should match the said version in material particulars, in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for the holding of the offender guilty of the charge. 37. In the case of Pradeep (Supra) and in the case of C. Vanramnghaka (Supra), which has followed the judgment passed in Pradeep (Supra) , it was held that the duty of a Judicial Officer to ask preliminary questions to a minor witness, is with a view to ascertain whether the minor can understand the questions put to him/her and is in a position to give rational answers. Taking into the account the fact that under Section 4(1) of the Oaths Act, 1969, an oath need not be administered to a child witness under 12 years of age, as the child may not understand the oath/affirmation, the Supreme Court had held that the preliminary questions had to be asked from a child witness, who was under 12 years of age, to satisfy the Court that the child understood the questions and could give rational answers to the same, so that their evidence would be admissible as evidence. 38. In the present case, as the child witness was 13 years of age at the time of recording her evidence by the learned Trial Court, though she was 11 years of age at the time of the alleged rape, we are of the view that no prejudice is caused to the appellant just because preliminary questions were not put by the learned Trial Court to the victim, who was 13 years of age. At the time of recording her evidence, i.e., when her testimony was taken under oath, the victim being 13 years of age, we do not find any ground to treat her evidence as inadmissible. 39. At the time of recording her evidence, i.e., when her testimony was taken under oath, the victim being 13 years of age, we do not find any ground to treat her evidence as inadmissible. 39. In the case of Budheswar Hazarika (Supra) , the Division Bench of this Court held that when there was nothing on record to show that the victim had any enmity or animosity against the appellant, there was no reason for the victim to make a false accusation. In the present case also, there is no whisper of any enmity between the family of the victim and the appellant and as such, there is no reason for any false case to be foisted upon the appellant. In the case of Sanjay Kumar Alias Sunny (Supra) , the Supreme Court held that minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. 40. In the present case, we do not find any discrepancy in the evidence of the victim that goes to the core of the issue and as such, the minor discrepancy in the statement of the victim under Section 164 CrPC viz-a-viz her testimony in the Trial Court, can be disregarded. We find that there is consistency in her statements in relation to the offence committed by the appellant. We are also of the view that the testimony of the victim is truthful and inspires confidence. 41. In the case of Sanjay Kumar Alias Sunny (Supra) and in the case of Phool Singh (Supra) , the Supreme Court has held that conviction can be sustained on the sole testimony of a prosecutrix, if it inspires confidence. It also held that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such, it has been laid down that corroboration is not a sina qua non for conviction in a rape case. It held that the testimony of a victim is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the Court should find no difficulty to act on the testimony of the victim of sexual assault alone to convict an accused, where her testimony inspires confidence and is found to be reliable. 42. It held that the testimony of a victim is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the Court should find no difficulty to act on the testimony of the victim of sexual assault alone to convict an accused, where her testimony inspires confidence and is found to be reliable. 42. On considering the evidence of the victim juxtaposed with her statement recorded under Section 164 CrPC and keeping in view the decisions of the Supreme Court in Sanjay Kumar Alias Sunny (Supra) and Phool Singh (Supra) , we do not find any reason to doubt the testimony of the victim that the appellant had committed aggravated penetrative sexual assault on her, which attracted Section 5(m) of the POCSO Act, 2012. In view of the reasons stated above, we do not find any ground to interfere with the impugned Judgment & Order passed by the learned Trial Court. 43. The appeal is accordingly dismissed. 44. Send back the LCR. 45. In view of the assistance provided by Mr. C. Tlanthianghlima, learned Amicus Curiae and Mr. Lalrokunga Pautu, learned Legal Aid Counsel for the respondent No. 2, the fees of the learned Amicus Curiae and Legal Aid Counsel, at the rate of Rs. 8,500/-each, should be paid by the State Legal Services Authority.