Allowed

Lalchhanhlua v. State of Mizoram and Anr.

Gauhati HC15 Jul 2022Crl.A./21/2020

Case brief

AI extract

What is this about?

A criminal appeal against a conviction under the POCSO Act. The High Court acquitted the appellant, setting aside the lower court's conviction, holding that the child victim's evidence was inconsistent and unreliable, failing to inspire confidence as a sterling witness without independent corroboration.

What did the court decide?

The impugned Judgment & Order dated 07.09.2020 and the Order dated 06.10.2022 are set aside and quashed. The appellant is set at liberty.

Lalchhanhlua Vs State of Mizoram and Anr. — Child Sexual Offences (POCSO) | Gauhati HC (2022)

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GAHC030004162020

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.A./21/2020

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Lalchhanhlua ITI Veng Aizawl Mizoram

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VERSUS

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State of Mizoram and Anr Aizawl Mizoram

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Advocate for the Petitioner : Mr B Lalramenga

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Advocate for the Respondent : Mr C Zoramchhana (PP/Addl.PP, Mizoram)

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BEFORE HONOURABLE MRS. JUSTICE MARLI VANKUNG

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JUDGEMENT

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Date : 15-07-2022

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Heard Mr. B. Lalramenga, learned counsel for the appellant and Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor for the State respondent.

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2] This is an appeal against the impugned Judgment & Order dated 07.09.2020 passed by the Special Court, POCSO Act, Aizawl in SC No.233 of 2015 arising out of Bawngkawn PS Case No.232/2015 by which the appellant was convicted under Section 4 of POCSO Act and sentenced to undergo 7 (seven) years Simple Imprisonment with

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a fine of Rs.5000/- in default SI 1 (one) month vide its Order dated 06.10.2022.

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3] Brief facts of the case is that a written FIR was received at the P.S Bawngkawn on 22.09.2015 from one R. Lalbeiseia/complainant stating that his daughter ‘X’ age 12 years had been sexually assaulted by the accused/appellant on the World Bank road where he had taken her by his Car. The girl was subsequently found by her parents at Ramhlun Vengthar. The case was registered as Case No.232/2015 dated 22.09.2015 under section 4 of POCSO Act and investigated into.

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4] During investigation the informant and the alleged victim ‘X’ were examined. The pretrial statement of ‘X’ was taken on 28.09.2014 by the CJM, her birth certificate was seized which shows that she was born on 05.07.2003 and still a child. Her medical examination was conducted on 6.10.2015 which shows that she had an old rapture of the hymen, the accused/appellant was also arrested on 22.09.2015. The statement of the other witness were taken and from the investigation a prima facie case under section 4 of POCSO Act was found against the accused appellant and charge-sheet submitted accordingly.

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5] The learned Special Court POCSO Act framed charge against the accused under section 4 POCSO Act on 09.02.2017, wherein the accused appellant pleaded not guilty and claimed to be trial.

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6] During the course of the trial, the prosecution examined 5 (five) of the 8 (eight) prosecution witnesses listed in the charge-sheet to prove their case. The accused was

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then examined under section 313 Cr.PC wherein, he denial all the incriminating evidence against him, however, no defence witnesses were produced. The learned

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Trial Court after hearing, the counsels for both the parties passed the impugned order dated 07.09.2022 convicting the appellant under section 4 of POCSO Act and sentencing him to undergo Simple Imprisonment 7 years and pay a fine of Rs.5,000/Id SI 1 (one) month. Hence this appeal.

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7] Mr. B. Lalramenga, learned counsel for the appellant submits that the alleged victim in her statement made under section 164 Cr.PC had mentioned that the appellant had touched her private part and there is no mentioned of insertion of his finger into her private part as mentioned in the FIR submitted by the complainant and in her deposition in the court wherein she had mentioned that the appellant had inserted his finger into her private part. Other inconsistencies were also found in her statement recorded u/s 164 Cr.PC and her deposition in the Court. Due to the inconsistencies in her statement she cannot be considered a sterling witness.

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8] The learned counsel for the appellant also submits that the prosecution, out of the 8 (eight) witnesses cited in the charge-sheet has examined only 5 (five) witnesses, wherein the witness name Rebecca has been dropped, this Rebecca is an important witness to establish the case of the prosecution. The evidence given by Pw-1 father of the victim ‘X’ is only hearsay. Pw 2 mother of the alleged victim is only the seizure witness, Pw-7 is the medical Doctor who examined the alleged victim and the medical evidence does not implicate the appellant since the appellant did not have sexual intercourse with the victim. This case rest on the sole testimony of the alleged victim ‘X’ and the testimony of ‘X’ is clearly not reliable. The case I/O has based his case

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solely on the testimony of the victim ‘X’. The credibility of the alleged victim ‘X’ is highly questionable since it is seen that she had spent the night in the house of Lalremruata after the alleged incident with the appellant. Thereafter, the next date she went shopping, consumed liquor then went back to the house of Lalremruata where her parents were waiting for her. It is also seen that she had not initially complaint against the appellant and the FIR was submitted after 3 (three) days of the incident. 9] The learned counsel further submits that the appellant on examination under section 313 Cr.PC has explained the reason for going to the World Bank Road, Falkland which was due to the traffic jam and denied all the incriminating evidence against him.

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10] The learned counsel thus submits that the impugned Judgment & Order of Conviction and Sentence cannot be sustained for the above reasons and should be set aside. In support of his submissions, the learned counsel relies upon the following authorities:- Santosh Prasad @Santosh Kumar Vs. State of Bihar reported in (2020) 3 SCC 443 para 5.5 & 6, Krishan Kumar Malik Vs. State of Haryana reported in (2011) 7 SCC 139 para 31 & 32, Mussauddin Ahmed Vs. State of Mizoram reported in (2009) 14 SCC 541 para 9 & 11, Rai Sandeep @ Deepu Vs. State (NCT of Delhi) with Hari Singh Vs. State (NCT of Delhi) reported in (2012) 8 SCC 21 para 22.

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11] Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor on the other hand submits that the statement given by the victim ‘X’ under section 164 Cr.PC is consistent with the deposition of the victim ‘X’ in the Court and can be considered a

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sterling witness. The inconsistencies mentioned are minor and does not negate her testimony in the court.

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12] The learned Addl. Public Prosecutor further submits that being a child of only 12 years she did not give a detail description of the incident initially. Since she did not understand the difference between touching and inserting. The case I/o on cross examination has also mentioned that the victim ‘X’ did not tell her father what the appellant had done to her initially since she did not understand that inserting the finger into the private part is an offence, but while the case I/o investigated into the case, when the victim ‘X’ mentioned that the appellant had inserted his finger into her private part, the case against the appellant was also initiated. The evidence of Pw-1 father of the victim girl stating that he does not have any objection to withdraw the case against the appellant shows that their exist no enmity between the complainant and the appellant and there is no reasons to falsely implicate the appellant, she has relied on the Judgment of the Supreme Court in the case of Satish Kumar Jayanti Lal Dabgar Vs. State of Gujarat reported in ( 2015) 7 page 359, State of U.P. Vs. Pappu @ Yunus and Another reported in (2005) 3 SCC 594 para 11-13 .

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13] Mr. B. Lalramenga, learned counsel for the appellant’s further submits that the claim of the learned Addl. Public Prosecutor that the alleged victim ‘X’ could not differentiate between touching and inserting the finger into the private part as stated by the case I/o is only an expression of opinion and has not been stated by the victim ‘X’.

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14] Having heard the submissions made by both the parties and on peruse of the documents on record, the evidence adduced by the prosecution is scrutinized meticulously.

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15] PW 1, R. Lalbeiseia is the father of ‘X’ and the complainant in the case. He has submitted the FIR based on what was told to him by ‘X’. He deposed that ’X’ told him that the appellant had taken her to Falkland World Bank road and kissed her and touched her private part but he did not have sexual intercourse with her. That after getting this information he had submitted the FIR. It is noted that in the FIR he had stated that the appellant had inserted his fingers into the private part of ‘X’ which is different from his deposition in the court. It is also noted that he has not explained why the FIR was submitted on 22.09.2015 while ‘X’ was found on 20.09.2015 at Ramhlun Vengthar.

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16] Pw-2 is ‘X’ who deposed that on 19.9.2015 when she was called by one Rebecca, her Facebook friend, she had got into the vehicle of the appellant with Rebecca and one lady, they dropped Rebecca and her friend at Kulikawn and the appellant had taken her to Falkland Veng where the appellant stopped the vehicle and started kissing her. She further deposed that he forcibly removed her clothes while she fought him back with all her might but he was stronger than her. That the appellant touched and inserted his finger inside her private part but the appellant did not commit sexual intercourse with her. The appellant after touching her private part told

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her to get dressed and continue to drive the vehicle towards Ramhlun Vengthar.

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17] Her pretrial statement recorded u/s 164 Cr.PC is also perused. It is seen that there are many discrepancies in the account of the incident given by ‘X’ in her deposited before the Court and her statement recorded under section 164 Cr.P.C. In her statement under section 164 Cr.PC she has stated that the appellant asked her to get into the rear seat, she said that she wanted to go home but he held her in his embrace and forced her into the rear seat, the appellant then came and sat on the rear seat, he then kissed her on her lips and touch her breast, he took off all her clothes and he removed his clothes too. She struggled a lot but she was not stronger and she could not subdue him. He touched her vagina with his hand but because she struggle he could not insert his penis into it. Then while holding her, he masturbated himself. When he had finished, he asked her to put on her clothes. He asked her to put on her panties too and he dressed up himself. After that he asked her to take the front seat again. He then took her to the house of his friends, Lalremruata, near Rosebud School in Ramhlun Vengthar.

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18] The Apex Court in the case of Krishan Kumar Malik Vs. State of Haryana (supra) held that

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“ 31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, which have already been

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projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the Appellant guilty of the said offences.

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32. Indeed there are several significant variations in material facts in her Section 164 statement, Section 161 statement (Cr.P.C .) , FIR and deposition in Court. Thus, it was necessary to get her evidence corroborated independently, which they could have done either by examination of Ritu, her sister or Bimla Devi, who were present in the house at the time of her alleged abduction. Record shows that Bimla Devi though cited as a witness was not examined and later given up by the public prosecutor on the ground that she has been won over by the Appellant.”

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19] Again in Rai Sandeep @ Deepu Vs. State (NCT of Delhi) with Hari Singh Vs.

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State (NCT of Delhi) (supra) the Apex Court held that:

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“ 22. In our considered opinion, the ‘sterling witness’ should be of a very high quality and caliber whose version should, therefore, 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 is 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. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It

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can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a ‘sterling witness’ whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. 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 objects 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 holding the offender guilty of the charge alleged.

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20] In the instant case, ‘X’ in her deposition in the Court has not mentioned anything about the appellant taking her to the rear seat of the vehicle or the appellant removing his clothes and trying to insert his penis into her private part or the appellant masturbating himself, which she mentions in her pre-trial statement recorded u/s 164 Cr.PC. Her pre-trial statement also does not say that the appellant had inserted his finger into her private part. Because of these significant discrepancies in her deposition in the court and her pre-trial statement recorded under section 164 Cr.PC, it cannot be held that ‘X’ is sterling witness that inspires the confidence of the Court and the Court finds it fit to examine whether the remaining prosecution evidence corroborates the prosecution case.

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21] It is noted that the mentioned Rebecca, the facebook friend of ‘X’ has not been

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examined and no explanation is recorded. The other prosecution evidence is the deposition of PW-4 Maichamthangi, who is the mother of ‘X’, she has however deposed only as a seizure witness to the birth certificate seized by the case I/O wherein her date of birth is recorded as 05.07.2003. It is not disputed that ‘X’ is a minor at the time of the alleged incident.

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22] Pw-7, Dr. Zosangpuii is a Medical Officer who examined ‘X’ aged about 12 years on 6.10.2015. From the medical examination it is seen that there was no bruising or laceration on the external genitalia, though her hymen was ruptured, the ruptured of her hymen was not fresh. The medical examination report is Exhibited as Ext P- 3 does not have any corroborative value in the instance case.

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23] Pw-8 S.I Lalhmachhuani is the case I/O who deposed that on 22.09.2015, the FIR was filed by Mr. R. Lalbeiseia who stated that his 12 years daughter ‘X’ had been sexually assaulted by the appellant, he stated that the appellant had inserted his finger into the girl’s vagina in a car on the World Bank road. On registering the case at Bawngkawn P.S. under section 4 of POCSO Act, she had investigated the matter and recorded the statements of the witness sent ‘X’ for medical examination and seized a

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birth certificate of ‘X’. Having found prima facie case under section 4 of POCSO Act, she had filed the charge sheet. On cross examination she had clarified that the incident had happened on 19.09.2015 and the FIR was filed on 22.09.2015, that the case was initially filed against the accused Lalremruata at Aizawl P.S. and the victim had not told her father about the assaulted by the appellant, as she did not regard the

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insertion of his finger into her vagina as sex. However, from her statement, in the course of investigation it was revealed that she had been sexually assaulted by the appellant. Here it is seen that the case I/O has relied solely on the statement of ‘X’ which is found unreliable by the Court.

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24] On scrutiny of the deposition of PW-8 and PW-1, it is seen that PW-1 who is the complainant has not mentioned anything about the appellant inserting his finger into the private part of ’X’. Further neither the deposition of PW-1 nor the deposition of PW2 ‘X’ mentions that ‘X’ did not regard the insertion of his finger into her vagina as sex.

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25] The appellant on examination under section 313 Cr.P.C. has denied all the incriminating evidence against him stating that he did not do anything upon ‘X’ and that there was no opportunity to commit any such offence. His explanation is that on 19.09.2015 ‘X’ refused to go home when he offered to drop her home and he left her in the house of Lalremruata. That when he returned later intending to drop ‘X’ to her house, she did not want to go home and infact she attempted to jump out of the window rather than go back home. That he has been falsely implicated in this case.

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26] On considering the evidence given by the prosecution witnesses and in view of the decisions of the Apex court as highlighted above, I find that there is no other option but to interfere with the impugned Judgment & Order finding that the prosecution has failed to prove the guilt of the accused under section 4 of POCSO Act beyond any reasonable doubt. In the result, the impugned Judgment & Order dated

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07.09.2020 as well as the impugned Order dated 06.10.2022 are hereby set aside and

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quashed.

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27] The appellant to be set at liberty forthwith, if not wanted in any other case. The

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appeal thus stands allowed.

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JUDGE