Appeal against conviction under Section 6 POCSO Act for rape. High Court held victim's testimony trustworthy despite discrepancies, supported by medical evidence and 313 admission. Appeal dismissed, original conviction sustained.
Crl. A No. 2 of 2021 dismissed; original judgment dismissing appeal confirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC030000472021
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./2/2021
Vanlalsawia Keifang
VERSUS State of Mizoram Aizawl
Advocate for the Petitioner : Mr B Lalramenga
Advocate for the Respondent : Ms Linda L Fambawl (PP/Addl. PP, Mizoram)
BEFORE HONOURABLE MRS. JUSTICE MARLI VANKUNG
J U D G M E N T
Date : 16-06-2022
Heard Mr. B. Lalramenga learned counsel for the appellant along with Mrs.
Linda L. Fambawl learned Addl. PP.
2] This is an appeal against the Judgment & Order dated 21.01.2021 passed by
the Judge, Special Court, POCSO Act, Aizawl in SC No. 45/2017 in C/No.427/2017 A/o
Saitual PS C/No 31/2016 by which the appellant was convicted under section 6 POCSO
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Act and sentenced to undergo R.I 10(ten) years with a fine of RS. 10,000/- I.D S.I for one month on 02.02.2021.
3] The case of the prosecution in brief is that on 21.11.2016, a written FIR was received at the Police Station, Saitual from one Lalroliani of Keifang Police Veng stating that her husband, Vanlalsawia, had raped their thirteen-year-old daughter X, at about 10:00 Am that day in their residence. That he had, on a number of earlier occasions touched her breasts with the intention of having sex with her. A case under Section 6 of the Protection of Children from Sexual Offences Act, 2012, was accordingly registered and investigated into. The place of occurrence was visited. She was forwarded to the hospital at Saitual for a medical examination which showed that her hymen was perforated. Her pretrial statement was recorded by a Judicial Magistrate of the First Class on 22.11.2016. Her birth certificate was seized and it showed that X was born on 25.4.2003 and was still a child. The accused, Vanlalsawia, 40, S/o Lallianthanga, was arrested on 21.11.2016, and he was also medically examined. A prima facie case under Section 6 of the Protection of Children from Sexual Offences Act, 2012, was well found against the accused and charge sheet was accordingly submitted. The documents forwarded along with it included the statement of the alleged victim recorded under Section 164 Cr.P.C./25 POCSO Act by Mr. H. Lalduhsanga, Judicial Magistrate First Class, Aizawl, on 22.11.2016, her birth certificate and the reports of the medical examinations of the accused and alleged victim.
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4] On 7.4.2017the learned trial court, framed charge under Section 6 of the POCSO Act which was read out to the appellant and to which he pleaded not guilty and claimed to be tried. The prosecution examined seven of the eight witnesses listed in the Chargesheet to prove their case. The appellant was examined under section 313 Cr.P.C, wherein he denied all the incriminating evidence against him and three witnesses were examined in his defence, which included the appellant himself. Thereafter, the learned trial court, after considering the evidence adduced and on hearing both the parties convicted the appellant under section 6 POCSO Act on 21.01.20121 and sentenced him to undergo R.I 10(ten) years with a fine of RS. 10,000/- I.D S.I for one month vide its order dated 02.02.2021. Aggrieved, the appellant has filed the instant appeal.
5] Mr. B. Lalramenga, learned counsel for the appellant has submitted that the deposition of the victim/prosecutrix is untrustworthy since her deposition in the Court and her statement recorded under section 164 Cr.PC and not consistence with each other. There is significant variation in the statements of the victim and her testimony cannot be said to be trustworthy. The alleged victim has falsely accused her father/appellant because her father has scolded her for her loose character. From the evidence on record it can be seen that the appellant had in fact handed her over to the police at Saitual Police Station so that the police could scold her tell and her to reform herself. That this is proved from the deposition of DW-1 Lalhmuaksanga, who
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stated that on 21.11.2016, he had accompanied the appellant to search for his daughter ‘X’ and they found ‘X’ with 2 (two) girls and 3 (three) boys at Kangbawk. The appellant took ‘X’ alongwith the 2 girls to the Police Station and he asked the Police to scold ‘X’ saying that ‘X’ used to stayed out and not returned home. The Police had scolded ‘X’ and it was about 10 PM when they were asked to leave. This statement of DW-1 has not been rebutted and goes to show that the alleged victim has a reason to falsely implicate the appellant.
6] The learned counsel further submits that the alleged victim had stated that the appellant had ejaculated when he had her sexual intercourse with her. However, the medical examination does not show any presence of semen. Thus, because of discrepancies found in her statement and from the evidence of the defence witnesses, the learned counsel submits the testimony of ‘X’ cannot be said to be trustworthy and cannot be of sterling quality and that the prosecution has failed to prove the guilt of the appellant under section 6 of POCSO Act beyond any reasonable doubt.
7] The learned counsel for the appellant has relied on the decision of the Apex Court in Krishan Kumar Malik vs. State of Haryana reported in (2011) 7 SCC 130 para 31 & 32, Santosh Prasad alias Santosh Kumar vs. State of Bihar reported in (2020) 3 SCC 443 para 5.2 Manirul Islam vs. State of Assam & Anr. reported in 2021 (3) GLT 128 para 37.
8] Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor on the other hand submits the allegation that the victim girl is having a loose character is made only
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from the deposition of the defence witnesses and cannot be relied upon. That the statements of the defence witnesses with regards to the incident are all different. DW1 & DW 2 stated that they found her at Kangbawk with 3 (three) boys and 2 (two) girls, while the appellant who deposed as Defence witness No.3 has stated that they found ‘X’ in a house where they were selling liquor but she did not want to come home.
9] The learned Addl. Public Prosecutor further submits that there is no contradiction in the statement given by the victim in the court and her statement recorded under 164 Cr.PC regarding the incident on 21.11.2016. In the statements given by her she had stated that she had washed herself after the appellant had sexually molested her and therefore no semen is expected to be found in her medical examination report. In the deposition of PW-8 Lalchia, he has clearly stated that the appellant was hesitant to go home because the appellant had sexually assaulted her and the medical examination reports confirmed that the victim had sexually assaulted.
10] The Learned Addl. PP further submits that the chain of events from the time when the victim girl ‘X’ was sexually molested by the appellant, thereafter she had left the house and was seen by her father who then took her to the police station, where PW 8 asked her why she had left her house and she had then informed PW-8 that she was sexually molested by the appellant and when she was examined by the Medical Doctor, the medical report proved that the victim girl had truthfully narrated the incident. That the statement of the appellant on examination under section 313
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Cr.PC further confirmed the guilt of the appellant wherein he admits that he had pushed ‘X’ on the bed. He did not remove her clothes but he slept on top of her and he pressed his penis from the top of his pants without removing his clothes and squeezed her breasts. The learned Addl. PP submitted that from the evidence adduced the prosecution have proved the guilt of the accused beyond any reasonable doubt. The learned Addl. Public Prosecutor has relied on the Judgment of the Apex Court in
Ganesan vs. State Rep. By Its Inspector … reported in (2020) 10 SCC 573 para 10.3.
11] I have heard the learned counsel for the respective parties at length and perused the documents on record. The evidence adduced by the parties in the trial court is briefly discussed herein;
12] It is seen that the date of birth of X as per the birth certificate exhibited shows that the date of birth of the victim ‘X’ is 25.4.2003. the alleged incident occurred on 21.11.2016, thus ‘X’ would accordingly have been under 13 (thirteen) years and 7
(seven) months of age , and was therefore a "child", as per the definition of the term in Section 2(d) of the POCSO Act, at the time.
13] PW-8, Lalchia, 53, deposed that on 21.11.2016, the accused/appellant had brought X and her friends to Saitual Police Station, where he was posted as Officer-inCharge. The appellant had asked him/PW-8 to advise the children to return home in time and then he went out, leaving the children with the Police. After the accused left,
PW-8 spoke to the children. ‘X’ told him/PW8 that she was scared to go home because
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that morning, while her mother and older brother had gone to their jhum cultivation,
the accused had sexually assaulted her. PW-8 then informed X's mother who filed the FIR later on the same day.
14] PW 1 Lalroliani is the mother of the victim ‘X’ who deposed how she was informed of the incident by the Saitual Police and thereafter ‘X’ told her about the incident and how the appellant use to sexually molest her. She then filed the F.I.R. Her deposition has not been rebutted during cross examination.
15] PW-2, is the alleged victim ‘X’. Her evidence adduced in examination-in-chief is reproduced verbatim below;
"I know the accused person produced in Court. He is my father. I was born on 25.4.2003. Our family used to live in Keifang. In 2016, I was studying in Class-7 at the Presbyterian English School. On 21.11.2016, at around 6:00 Am, my mother and older brother, Lalchhandama, went out to our jhum cultivation. I was alone with my father at home. We had our morning meal and I cleaned up the utensils after that. My father said that he would teach me how to play the guitar. He taught me in the sitting room. We then went to the bedroom to search for a songbook. My father locked the bedroom door. We sat on a bed and started playing the guitar. My father put away the guitar. He caught hold of me, pushed me down on the bed and got on top of me. I fought back but he held me and took off my pants and panty. He took out his penis and rubbed it on my private part. He inserted the tip of his penis into my private part and I felt
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pain. After some time, a white fluid came out of his penis. He got up and I immediately ran out of the room and washed myself. I then went out of the house, to my friend, Mawimawii. I texted my father and told him that I would be having dinner at my friend's place. In the evening, I went along with my friend to a tailor on Champhai road to give some clothes for stitching. It was getting dark and I saw my father on a motorcycle on Champhai road with a friend of his. I was afraid of him and rushed back to my friend's house. My father and his friend took me to Saitual Police Station and they tried to have me arrested. At the Police Station, I told the Police that my father had committed a penetrative sexual assault on me in the morning and described what had happened. The Police phoned my mother and informed her about the matter."
16] During cross examination of ‘X’ her testimony was not shaken and nothing was brought out to discredit her testimony.
17] Her pretrial statement, which cannot be used as a substantive evidence but as a corroborative statement to the testimony of the victim ‘X’, does not rebut the fact that the appellant had sexually molested her on 21.11.2016. Her statement recorded under section 164 Cr.P.C is reproduced as under ;
"The first time it happened was the Sunday following this year's church assembly. I had gone home after having the evening meal in a friend's house, and as my father, Vanlalsawia, had not yet come home that night I went to bed. He returned with a friend. He lifted the mosquito net and called me out. I thought he was going to ask me to prepare dinner for
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him. But he pressed me against the bathroom door and took out his penis. He held me but I slipped away and got into the bedroom. My mother woke up. "Why did your father call you out?" she asked me. "Ask my father," I said. She went and asked him what the matter was, and I myself went to bed. After this, every now and then, for about two weeks, he would lift the mosquito net while I was sleeping and touch my breasts. I used to move his hand away and tell him to leave, and he would go away. I was scared that I would be creating a rift between my parents and that they might even end up divorcing each other if I told my mother what was happening, so I did not tell her about it.
On another occasion, my father was teaching me how to strum a guitar. We searched for the songbook but couldn't find it. He asked me to go to him and called me to the bedroom. He bolted the door of the room. We sat on a bed. He sat behind me and, while teaching me how to play the guitar, tried to touch my breasts. I did not like it. He made me lift my legs up and pulled me backwards. He kept the guitar aside, and lay down on me all of a sudden. He tried to pull down my pants, but I kept on pulling them up. He took out his penis and pressed it against my pelvis, and moved on top of me like that. Before he ejaculated, he put his penis on my vagina and pressed a bit. He inserted the tip of his penis a little way into my vagina. He must have ejaculated after that as my underwear got stained. It hurt a bit and I struggled. Then I extricated myself and washed up. Twice, after I urinated, some semen was also dispelled. I had a bath."
18] I find that there is no significant variations regarding the narration of the incident that occurred on 21.11.2016when the appellant sexually assaulted ‘X’ in their
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bedroom while teaching her how to play the guitar. Her testimony with regards to the incident is further corroborated by the depositions of PW5 and PW8 as highlighted herein.
19] PW3 & PW4 are the seizure witnesses to the seized birth certificate of ‘X’. The date of birth shown in the birth certificate is not under challenge.
20] PW5. Dr. Daniel Zomawia is the medical doctor who examined the victim ‘X’, who found bruising on the libiamajora and minora and laceration seen. Her hymen was perforated and lacerated edges of the hymen seen. The medical report was exhibited as Ext P-4. During cross examination the doctor further opined that as per his medical examination and purview the private part of virginal of the victim seems to experience intercourse for the first time. The fact that no semen was found has been clarified from the testimony of the ‘X’ who had stated that she washed herself after the incident. I find that the medical evidence supports the testimony of the victim ‘X’ who deposed that the appellant had inserted the tip of his penis into her vagina.
21] PW6 P.C Lalramnghaka is the initial case I,O who found prima facie case against the appellant and had seized the birth certificate of ‘X’, got the medical examination of ‘X’ done, and also got her statement recorded under section 164 Cr.P.C before the Magistrate first class. She has stated that the appellant was arrested and had on interrogation admitted his guilt before her.
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22] PW8 Lalchia is the case I.O who submitted the charge sheet and he has deposed how, on 21.11.2016 the appellant had brought the victim ‘X’ to the police station for them to advise the children to go home in time. After the appellant had left, he spoke to the children and ‘X’, who was only 13 years of age, told him that she was afraid to go home because the appellant had sexually assaulted her. He then informed the mother of ‘X’ who submitted the FIR and the appellant was also then arrested. After due investigation a prima facie case was found against the appellant under section 6 POCSO Act and charge sheet was submitted accordingly.
23] It is noted that the accused on examination under 313 Cr.P.C had admitted that he had taken ‘X’ to the police station and requested the police to scold her because she used to go out. He has further admitted that on the morning after his wife and son had gone to the Jhum cultivation, he told ‘X’ that he would teach her to play the guitar and he had pushed her on the bed. He did not remove her clothes but he slept on top of her. He further stated that she pressed his penis from the top of his pants without removing his clothes and that he squeezed her breasts. This statement of the appellant goes to support the testimony of ‘X’ to a great extent.
24] The defence witnesses DW1 and DW2 have both stated that they had gone to the house of the appellant on 21.11.2016 but on cross examination have stated that they do not know what happened between the appellant and ‘X’ on that day. They have deposed that they helped the appellant to search for the victim ‘X’ and had found her at Kangkawn with her friends.
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25] The appellant who stood as defence witness No.3 has stated that on 21/11/2016 when ‘X’ tried to leave the house he had forced her back into the house, physically pushing her down and lay on her on the floor but not in a sexual manner, after that at around 2:30 pm he left the house with DW1 Lalmuaksanga to drink liquor. When ‘X’ had not returned home in the evening he went to search for her and on finding her he had taken her to the police station so that the police would scold her to behave properly. I find that the appellant’s deposition contradicts his statement given by him on his examination under section 313 Cr.P.C wherein he had stated that he had pushed ’X’ on the bed and his narration of the incident is also different from his statement under section 313 Cr.P.C. His statement is also not supported by the other defence witnesses.
26] The Apex Court in Ganesanvs State Rep. By Its Inspector Of (Supra) has relied on decision of the court in several of its judgments wherein it mentions that :
“Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.” To mention a few of the judgments relied upon by the Apex Court- In State of U.P. v. Pappu, (2005) 3 SCC 594 it was held that “even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the
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court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do."
“ In State of H.P. v. Raghubir Singh, (1993) 2 SCC 622 this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. 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. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. (2010) 2 SCC 9 placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan, AIR 1952 SC 54.”
27] Thus, from the decisions and views of the Apex court and from evidence adduced by the prosecution in the instant case, I find that the testimony of the victim girl ‘X’ is found to be trustworthy and inspires confidence. Further this has been corroborated by the deposition of PW 8 to whom the incident was first disclosed and further supported by the medical evidence exhibited as Ext P-4.The statement of the appellant himself when examined under section 313 Cr.P.C also infact, supports the testimony of ‘X’.
28] In light of the above discussions and reasons thereof, I am of the considered
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view that the decision of the Judge, Special Court, POCSO Act, Aizawl dated 21.01.2021 in SC No. 45/2017 in Crl.No.427/2017 A//o Saitual PS C/no 31/2016 by which the appellant was convicted under section 6 POCSO Act and sentenced to undergo R.I 10(ten) years with a fine of RS. 10,000/- I.D S.I for one month on 02.02.2021, does not call for any interference.
29] Crl. A No.2 of 2021 accordingly is dismissed and stands disposed of.
JUDGE
Comparing Assistant
3 issues framed by the court
Whether the variation in the victim's statements and lack of semen in medical report disentitles her testimony from conviction.
Whether the evidence of the prosecutrix is trustworthy and inspires confidence in the absence of other direct corroboration.
Whether the impugned order convicting the appellant under Section 6 POCSO Act calls for interference.
Colour shows how this judgement treated each authority
Krishan Kumar Malik vs. State of HaryanaReferred¶26
(2011) 7 SCC 130 · Who else cites this
Santosh Prasad alias Santosh Kumar vs. State of BiharReferred¶26
(2020) 3 SCC 443 · Who else cites this
Manirul Islam vs. State of Assam & Anr.Referred¶26
2021 (3) GLT 128
Ganesan vs. State Rep. By Its InspectorRelied on¶26
(2020) 10 SCC 573 · Who else cites this
State of U.P. v. PappuReferred¶26
State of U.P. v. Pappu, (2005) 3 SCC 594 · Who else cites this
State of H.P. v. Raghubir SinghReferred¶26
State of H.P. v. Raghubir Singh, (1993) 2 SCC 622 · Who else cites this
Wahid Khan v. State of M.P.Referred¶26
Wahid Khan v. State of M.P. (2010) 2 SCC 9 · Who else cites this
Rameshwar v. State of RajasthanReferred¶26
Rameshwar v. State of Rajasthan, AIR 1952 SC 54 · Who else cites this
2 provisions across 1 enactments
Vanlalsawia Keifang
State of Mizoram
Marli Vankung
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
