Sh. Beiryaothai Vs The State of Mizoram and Anr.

Linked Case : I.A.(Crl.)/7/2023 Sh. Beiryaothai S/o S. Makha R/o Maubawk Siaha Mizoram. VERSUS The State of Mizoram and Anr. Aizawl. 2:T. Kiltini W/o N.Lalfamkima Mualpui Aizawl Advocate for the Petitioner : Ms. Lalngaihsaki Fanai Advocate for the Respondent : P.P./Addl.PP Mizoram

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Petitioner : Sh. Beiryaothai S/o S. Makha R/o Maubawk, Siaha, Mizoram. VERSUS Respondents : The State of Mizoram and Anr. Aizawl. 2:T. Kiltini W/o N.Lalfamkima Mualpui AIzawl Advocates for the Appellant : Ms. Lalngaihsaki Fanai Advocates for the Respondent : Ms. Mary L Khiangte, APP Mr. Lalramdinthara, Legal Aid Counsel

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Page No.# 3/26

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BEFORE

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HON’BLE MRS. JUSTICE SHAMIMA JAHAN

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Date of hearing & judgment : 06.08.2025

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JUDGMENT & ORDER (ORAL)

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Heard Ms. Lalngaihsaki Fanai, learned counsel for the appellant, Ms. Mary L Khiangte, learned Addl. Public Prosecutor and Mr. Lalramdinthara, Legal Aid

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Counsel appearing for respondent No. 2.

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2 . This is a Criminal Appeal filed against the Judgment and Order dated 3-22021 passed by the Special Judge, POCSO, 2012, Aizawl Judicial District, Aizawl, in Special Case No. 125/2017, under Section 4 of the Protection of Children from Sexual Offences Act, 2012, (hereinafter referred to as POCSO Act). By the said Judgment and Order, the appellant was convicted under Section 4 of the POCSO Act and was sentenced to undergo Simple Imprisonment for 7 years with a fine of Rs 1,000/- and in default of the payment of fine, the appellant was further sentenced to undergo Simple Imprisonment for another period of 1 month. Against this Judgment and Order, the appellant has preferred the

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appeal before this High Court.

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FACTS :

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3. The First Information Report dated 8-4-2017 lodged by the mother of the victim reveals that on the night of 7-4-2017 at around 7:00-8:00 pm, the daughter of the informant, aged 13 years, who had attended a marriage ceremony at Upper Republic, was taken by the appellant in his vehicle on the pretext of dropping her home and while taking her, the appellant forcefully had sexual intercourse with the victim. On receipt of the said affair, the police registered the case under Section 4 of the POCSO Act, read with Section 3(a) of E.S. Act, 1908 and investigated the same. The police after completion of the said investigation submitted a charge sheet against the appellant under Section 4 of the POCSO Act vide charge sheet No. 47/2017 dated 6-6-2017. Thereafter, on completion of the necessary requirements under the law, the Special Judge, POCSO Act, Mizoram Aizawl, framed the charge against the appellant under Section 4 of the POCSO Act to which the appellant pleaded not guilty and the trial was initiated. During the trial, the prosecution examined 12 witnesses and thereafter, the appellant was subjected to examination under Section 313 of the CrPC and on completion of the trial, the appellant was convicted as mentioned above.

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EVIDENCE :

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4. As it is no res-integra that in cases of sexual offences, the evidence of the

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victim is the clinching evidence and if the same inspires the confidence of the court, the accused person can be convicted on the sole basis. As such, the evidence of the prosecutrix may be examined at the first instance.

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5. The prosecutrix is examined as PW No. 3 by the trial court and she stated that on 7-4-2017, she and her family members went to Upper Republic Veng to attend the wedding of one of her relatives, wherein the accused was also present and that in the evening after the dinner, the appellant took her to a store to buy Zarda and when they returned, her parents had already left the wedding venue and that the appellant told her that he will drop her at her residence.

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6. The victim further stated that on the said assurance, she boarded the scooty of the appellant and that instead of taking her home, the appellant took her to World Bank Road and he stopped the scooty on the roadside and got down from the scooty and that she followed him. She also stated that they were sitting on the roadside and that when she requested him to take her home, he refused and by removing her clothes, got on top of her and caught hold of her hands and that she shouted for help but he threatened her not to make any noise. She further stated that the appellant inserted his fingers into her private part and that he removed her clothes and inserted his penis into her private part.

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7. She thereafter stated that she cried out and that after some time, some white fluid came out from the private part of the appellant and that thereafter, she dressed up and the appellant dropped her at her home. She then stated that she reached home but she did not tell the incident to anyone as she was afraid of the accused and that on the next day morning, when her sister-in-law asked her about her whereabouts on the previous night, she disclosed the incident to her, who then went and informed her mother and that the mother lodged the Ejahar.

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During her cross examination, she stated that she boarded the scooty on her own volition, and that she insisted the appellant to go to the World Bank Road and that both of them had consumed beer on that day and she also told the accused person that she had sexual intercourse twice prior to the instant incident. She also stated in her cross examination that she did not shout for any help.

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8. It is also a settled position of law that to bring home the guilt of the accused person, the statement of the victim has to be seen from the very beginning i.e. her statement before the police and her statement before the magistrate and her final statement before the trial court, and if the same is consistent, the appellant can be convicted. As such, her statement before the police and the

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Magistrate are stated below.

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9. Before the police, in her statement under Section 161 of the CRPC, she stated that on 07-04-2017, she attended a wedding at Republic Veng and in the evening, she and the appellant bought Zarda pan and on retuning, she found that her parents left home without her. She then stated that the appellant suggested that he would drop her and that by using the scooty of victim's uncle, the appellant took her on the pretext of dropping her home. However, he took her to the World Bank Road wherein they sat by the road and that the appellant refused to drop her even after she requested him. She then stated that the appellant removed her clothes and by laying upon her, inserted his fingers inside her private parts and that he masturbated by himself. She thereafter stated that the appellant dropped her home and that she being afraid of her mother did not tell the incident and that the next day morning she told to her sister-in-law.

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10. In her statement before the magistrate under section 164 of the CrPC, she stated that on 07-04-2017, when she was about to leave her grandfather's house at Upper Republic veng, the appellant told her that he will drop her home and that they rode on the scooty of the appellant. She thereafter stated that the appellant took her towards World Bank Road and on the way he stopped his scooty saying that he wanted to pee and asked her to sit with him for a while

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and when she requested him that her parents would be worried, the appellant forcefully made her sit near him to which she obliged. She thereafter stated that the appellant however pushed her down while she was not ready and that she bit him hard on his thigh as well as on assaulted on his head with a helmet, but the appellant forcefully removed her clothes and inserted his finger into her private part and that subsequently he raped her. She thereafter stated that he took the victim on his scooty and dropped her home and that she did not divulge the incident to her family members on that night and it was only next morning that she told about the incident to her sister-in-law.

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11. These are the statements of the victim before different authorities and since it is settled by the Apex court that in case the victim's statements are not found consistent with each other, corroborations has to be looked for, for proving the offence. As such, the statements of other witnesses may be referred herein below.

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12. PW-1 is the mother of the victim and she stated that on 08-04-2017 at around 7:00 AM her daughter-in-law informed her that the victim was sexually assaulted by the appellant on the previous night and that after getting the information, she asked the victim and the victim stated to her that the appellant took her to the World Bank Road and on the roadside the appellant

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sexually assaulted her. This witness however stated that on 07-04-2017, the appellant came and dropped the victim at around 8:00 to 9:00 PM and that the victim did not narrate the incident on that night.

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13. In her cross-examination she further stated that the appellant while dropping her daughter at home, sat for a while and she spoke to him. She however stated that the father of the bride whose wedding she attended on 0704-2017 told her that he was suspicious of the appellant who had taken the victim on that night and that her daughter-in-law had asked the victim about the incident because of the said suspicion and that she too had the suspicion against the appellant.

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14. PW-2 is the sister-in-law of the victim and she stated that on 07-04-2017, at around 9:00 PM, the appellant dropped the victim to the place where they all stay together and that the next morning at around 9:00 AM when she went to the wash-room, she found the victim sitting near her bed and crying and that on asking her, the victim narrated to her about the incident. This witness went and told the parents of the victim and that the FIR was lodged subsequently. 15. In the cross examination, this witness stated that the accused while dropping the victim at her residence, stayed there for twenty minutes and also had tea and that the victim was with the appellant during the entire time and that she also

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accompanied the appellant to his scooty. She further stated although the victim looked scared and worried but she did not tell anything to her on the said night and only in the next morning, the victim divulged about the incident.

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16. PW-4 is the brother of the victim and he stated that he went with the victim and his mother and lodged a Ejahar and in his cross examination this witness stated that the appellant dropped the victim at her place and that the victim did not tell anything about the incident on the said night but it was divulged only in the morning to his wife and that his wife told him about the same.

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17. The doctor who examined the victim deposed as PW-5 and she stated that on examination of the victim she found reddish brown stain in her undergarment and further found a small abrasion on the right thigh of the victim as well as some bruising above the urethra and the labia minora and also found the hymen of the victim ruptured and tears at 6 o'clock and 12 o'clock positions. During her cross examination the doctor further opined that the bruises above the urethra and labia minora was not more than 24 hours old.

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18. PW-6 is the doctor who examined the appellant and he stated that on examination he did not find any injuries on his body and further opined that the

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appellant had no abnormality in his sexual organs.

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19. The Investigating Officer was examined as PW-8 and he conducted the investigation in its usual course and submitted charge sheet. He however in his cross examination stated that the victim could not point out the exact place of location.

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20. PW-9, 10 & 11 were involved in drawing blood samples from the victim for the purpose of checking the same with the blood stains found in the undergarment of the victim.

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21. PW- 12 was the Assistant Director of the Forensic Science Laboratory who examined the blood samples of the victim with that of the stains found in the undergarment of the victim and reported that they are of the same person.

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22. These are the statements of the witnesses recorded and thereafter the statement of the appellant was recorded under Section 313 of the CrPC. In his statement the appellant stated that it was the victim who requested him to drop her at her home to which he informed that he had no vehicle and that the victim told him to borrow the scooty belonging to her grandfather. He also stated that he was a stranger to the Aizawl city and that the victim requested him to take her to the World Bank road and that she led the way and on the

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way the victim told him to stop at a place where she purchased beer with her own money and that they both had beer. The appellant declined of commission of sexual assault on the victim. He further stated that he dropped the victim at her home and had a cup of tea there. In his defence he stated that he was implicated by the father of the victim in the said case due to the reason that the father of the victim was affiliated to another political party and he to another political party, and that he was implicated in the said case only to destroy his political career.

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SUBMISSIONS :

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23. Ms. Lalngaihsaki Fanai, learned counsel for the appellant submits before this court that the statement of the victim was not consistent before the authorities and that there was no corroboration to the said statements. She stated that the opinion of the doctor that the injuries on the private parts of the victim cannot be more than 24 hours old, again cannot saddle the responsibility on the appellant inasmuch as the same could have occurred due to other reasons. She stated that the statement of the victim was not of sterling quality inasmuch as at one place the victim said the scooty was of the appellant and at the other place, she said the scooty belongs to her grandfather. Further, there was no evidence of physical injury on the appellant although the victim said that she

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had bit him on his thigh and struck him on his head, and further although the victim said that white fluid came out of the private part of the appellant but the same was not found by the doctor in her undergarments. She also stated that the FSL report has no value as far as the complicity of the appellant in the instant offence is concerned and that Section 27(2) of the POCSO Act is also violated due to the fact that the victim was examined by a male doctor instead of a female doctor.

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24. The Ld. Counsel also stated that the victim herself in her statement had stated that she insisted the appellant to go to the World Bank Road and she offered beer to the appellant and that she had sex with other persons twice before the present occurrence. She also said that the answers given by the appellant in his examination under Section 313 CrPC were not considered by the trial court and since there appears inconsistency in the statement of the victim, the appellant should have been given benefit of doubt in the instant case. As such, the counsel for the appellant submits that the conviction and sentence of the appellant may be set aside and the appeal be allowed.

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25. On the other hand, Ms. Mary L Khiangte, the Addl. Public Prosecutor submits before this Court that with regard to the foundational facts, there is enough evidence in support of the same. She stated that the defence had never

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challenged that the victim was not minor and was of 13 years of age. She stated that the medical evidence which demonstrated signs of violence, bruises on the body of the victim, corroborates the statements of the prosecutrix. She stated that as far as the actual occurrence is concerned the victim had stated consistently before all the authorities except in her statement before the police where she did not say about the actual sexual assault by the appellant. She as such submits that the consistent statement of the victim coupled with supportive medical evidence proves the case beyond reasonable doubt and that the Judgment & order may be upheld.

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26. Mr. Lalramdinthara, the Legal Aid Counsel appearing for respondent No. 2 submits before this Court that minor contradictions in the statements of the victim before the authorities would not be fatal in the instant case. He submits that as far as the core spectrum of the incident is concerned the same has been consistently stated by the victim before all the authorities. He further submits that the statements of the victim are corroborated by the medical evidence as has been stated by the learned Addl. Public Prosecutor. To substantiate his arguments, he placed reliance on a Judgment delivered by the Hon’ble Supreme Court in Narendar Kumar vs. State, reported in (2012) 7 SCC 171, by which the Apex Court had observed that a case can be based on solitary evidence of the

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prosecutrix and that no corroboration would be required unless there are compelling reasons and that minor contradictions or insignificant discrepancies, cannot be a ground for throwing out an otherwise reliable prosecution case.

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27. On these facts as well as the submissions made by the parties, this Court is now called upon to adjudicate into the validity of the impugned judgment & order and also to find out as to whether the conviction and sentence of the appellant in the present case is proper or not.

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ANALYSIS :

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28. It is a settled position of law that in case involving sexual offence, the testimony of the prosecutrix can be solely relied upon, in case her testimony is consistent right from the beginning i.e. her statement before the police to her statement before the Trial Court and which inspires the confidence of the Court. In POCSO cases, the victim’s testimony is pivotal and the same can be treated as of sterling nature unless there are reasons to doubt its credibility. The statement of the prosecutrix is deemed vital only because of the fact that sexual offence occurs in a private setting, leaving little room for any corroborative evidence. The Apex Court has consistently held that the victim’s testimony if found credible and reliable is sufficient to bring home the guilt of the accused

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person without any further corroboration.

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29. One of the leading case amongst others in respect of the said position of law is Rai Sandeep @ Deepu Vs. State of NCT of Delhi (Supra) and the observation made by the Apex Court therein are reproduced herein below:-

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"15. 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 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 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

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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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30. It is apparent from the above decision that status of the witness is immaterial and what should be seen is that the truthfulness of the statement of the victim. It is also reflected that the statement of the victim has to be considered from the starting point till the end i.e. at the time when the witness makes the initial statement and ultimately before the Court and that it should be natural and consistent with the case of the prosecution qua the accused.

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31. In the instant case, by applying the analogy provided by the Apex Court it is noticed that the victim in her initial statement before the police stated that in the evening on the day of occurrence she and the appellant bought Zarda pan and when she returned she found that her parents left the wedding venue and on the suggestion given by the appellant to drop her at her home, she went with the appellant in a scooty and that the appellant took her to the World Bank

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Road and that when they were sitting by the road, the appellant took off her

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undergarments and inserted his fingers into her private part and that he masturbated himself.

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32. In her statements before the trial court, she stated that on the day of occurrence, while she was leaving her grandfather’s house, the appellant told her that he would drop her at her home by his scooty and that the appellant took her towards World Bank Road and on the way, the appellant said that he wanted to pee and asked her to sit with him for a while to which she obliged and thereafter the appellant by pushing her, removed her clothes and inserted his finger into his private part and thereafter raped her.

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33. Before the trial court, she stated that on the day of occurrence in the evening, the appellant took her to a store to purchase Zarda and when they returned, they found their parents had already left and that the appellant told her that he would dropped her home but instead the appellant took her to the World Bank Road and by stopping on the way, when they both were sitting on the roadside, the appellant forced upon her by threatening her, removed her clothes and inserted his finger into her private part and raped her.

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34. It is seen that in her statement before the police and the trial court, the victim told about purchasing Zarda, however in her statement before the

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Magistrate, she did not state the same. The victim had also stated differently as far as the fact of taking her by scooty is concerned. In her statement before the police, the victim did not say about threatening by the appellant as she stated before the trial court. Further, in her statement before the Magistrate, she stated that she hit him on his head with a helmet and bit him on his thigh but the same do not find place in both her statements before police and the trial court. Further, during her cross-examination before the trial court, she stated that it was she who had insisted the appellant to go to the World Bank Road and that she boarded the scooty voluntarily and further that they consumed beer on that night. She also stated during her cross examination that she revealed to the appellant that she had sexual intercourse twice prior to the present incident and that she did not shout for help when the appellant tried to have sexual intercourse with her. The statements in her cross examination showed that there was no force applied by the appellant on the victim. However, the same would not be relevant since the victim was minor but what would be relevant is that the inconsistency in the statement of the victim.

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35. It is noticed that the statements made by the prosecutrix before the authorities are inconsistent. The Hon'ble Apex Court in the said judgment of Rai Sandeep @ Deepu Vs. State of NCT of Delhi (Supra) had further observed that

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the victim should be in a position to withstand the cross examination of any length and however strenuous it may be and under no circumstance should give room for any doubt as to the factum of occurrence, the person involved as well as the sequence of it and the said version should consistently match with the version of every other witness.

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36. It is noticed that as far as the core spectrum of the incident is concerned the same appears consistent inasmuch as the victim stated before all the authorities that she and the appellant sat together by the roadside of World Bank Road and at that juncture the appellant had sexual intercourse with her. However, the sequence in narrating the said incident is not consistent before the authorities.

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37. There appears contradictions in respect of sequence she narrated after the incident. In her statement before the police, she stated that the appellant dropped her home and that she being afraid of her mother did not told anything to her and that in the morning she told the incident to her sister-in-law. In her statement before the Magistrate, she stated she did not had a guts to tell her family members as to what happened on that night and that on the next morning, she told her sister-in-law. However, in her statement before the trial

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court, she stated that she did not narrate the incident to anybody as she was afraid of the appellant. Further contradiction in the sequence is seen when she stated that when her sister-in-law asked about her whereabouts on the previous night, she told her the incident.

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38. Further contradiction is that in her statement before the police, the victim stated that the appellant had only inserted his fingers into the private parts of the victim and that he masturbated by himself. However, in her statement before the Magistrate and the Trial Court, she not only stated that the appellant had inserted his fingers in her private area but also stated that the appellant had raped her.

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39. A bare perusal of the aforesaid consistencies shows that the sequences of the events were not stated properly and were not consistent with each other. There is also a further requirement that the victim’s version should matched with the version of other witnesses. In this context it is stated, there are no other evidence in respect to the incident in question as far as the victim’s version matching with the version of other witnesses are concerned and the same is reflected here in below.

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40. The mother of the victim had stated that the appellant after dropping the

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victim at her house, sat for a while and spoke to her for some time and during that time there was no iota of suspicion of any illegal act much less sexual offence being committed by the appellant on the victim. The sister-in-law of the victim had also made similar statement who stated that the appellant after dropping the victim home, stayed for 20 minutes and had tea and during that time the victim was with the accused and the victim went to see him off, till he left in his scooter. The conduct of the victim was very unusual. There is a further statement of the victim in her statement before the Magistrate that she had assaulted the appellant on his head by a helmet and that she had bitten him on his thighs but in the medical examination of the appellant, no signs of injury on his body was found.

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41. There are only two witnesses i.e. the mother and the sister-in-law of the victim whose statements could have corroborated the statements of the victim but their statements were only to the effect that the appellant dropped the victim at her place and after dropping her, things were very normal as it was stated by them. The other corroboration to the statement of the victim is the statement of the Doctor, who stated there were bruises just above the urethra and both the labia minora and that the hymen of the victim was ruptured and it was also stated by the Doctor that the said bruises were not more than 24

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hours old. Although the said statements has the effect of corroborating the statement of the victim but there is also evidence to the effect that the victim

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told the appellant that she had sexual intercourse twice prior to the present incident.

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42. The further observation of the Apex Court is that only if the version of such a victim qualify the test of reliability, it can be held that such a witness is a sterling witness, whose statement can be accepted by the Court without any corroboration and based on which, the guilty can by punished. It is noticed in the facts of the present case that the victim cannot, in the opinion of this Court, be termed as a sterling witness whose version can be accepted by the Court. It is further held by the Apex Court that not only the core spectrum of the crime should remain intact in her statement before the authorities but also that the other attendant materials mainly oral, documentary and material objects should also matched the said version in material particulars.

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43. The Hon'ble Supreme Court in yet another decision of Nirmal Premkumar & Another Vs. State Represented by Inspector of Police reported in (2024) 3 SCALE 632 has held further in the following terms:-

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"15. What flows from the aforesaid decisions is that in cases where witnesses

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neither wholly reliable nor wholly unreliable, the Court should strive to find the true genesis of the incident. The Court can rely on the victim as sterling witness without further corroboration but the quality and credibility must be exceptionally high. The statement of the prosecutrix ought to be consistent from the beginning to the end (minor inconsistencies excepted), from the initial statement to the oral testimony, without creating any doubt qua the prosecution case. While a victim's testimony is usually enough for sexual offence cases, an unreliable or insufficient account from the prosecutrix, marked by identified flaws and gaps, could make it difficult for a conviction to be recorded."

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44. It is therefore apparent from the aforesaid judgment that the quality and credibility of the victim's statement must be exceptionally high to rely upon the same and inflict conviction. In the instant case, it is seen that the statement of the prosecutrix does not reach to that extent. Since there are many discrepancies in the sequence of the incident as narrated by the victim, although, the core spectrum of the incident is consistent, the same cannot be relied upon.

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45. Thus inconsistency in the statement of the victim, failure on the part of the victim to show the place of occurrence, absence of proper corroboration to the statement of the victim, cast a serious doubt on the prosecution story. The accused cannot be convicted on the sole testimony of the victim which is found to be inconsistent. It is noticed that prosecution evidence is grossly inadequate to bring home the charge against the accused beyond reasonable doubt and therefore the accused/appellant, at least ought to have been given the benefit

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of doubt in the instant case. The cardinal principle of Administration of Criminal Justice that prosecution has to prove the guilt beyond reasonable doubt equally applies in case of sexual offence. The prosecution evidence having been found inadequate to bring home the guilt of the appellant beyond reasonable doubt, the conviction and sentence of the appellant is not sustainable.

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CONCLUSION

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46. It is as such concluded that the statements of the victim which were seen to be inconsistent except the core status, the same cannot be believed as it did not inspire the confidence of the Court.

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47. In view of the above discussion, the impugned Judgment and Order dated 03.02.2021 passed by Special Judge, POCSO Act, 2012, Mizoram, Aizawl, convicting the appellant for the offence under Section 4 of the POCSO Act and imposing the punishment of Simple Imprisonment for 7 (seven) years with fine and default stipulation, is hereby set aside and quashed.

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48. The appeal is allowed. The appellant shall be set at liberty forthwith unless required to be in custody in connection with any other case.

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49. Accordingly, the criminal appeal stands disposed off.

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50. Send back the Trial Court Records.

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51. In appreciation to the services rendered by the learned Legal Aid Counsel, Mr. Lalramdinthara, who appeared for respondent No. 2 may also be given his

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fee by the State Legal Services Authority as per the existing rates.

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JUDGE

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Comparing Assistant

Sh. Beiryaothai v. The State of Mizoram and Anr.

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Sh. Beiryaothai v. The State of Mizoram and Anr.

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