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2019 Supreme(Gau) 376
IN THE HIGH COURT OF GAUHATI, AIZAWL BENCH
MICHAEL ZOTHANKHUMA, J.
Sh. Malsawmkima, S/o B. Dorema – Petitioner
Versus
State of Mizoram and Ors. – Respondents
Crl. Revision Petition No. 2 of 2019
Decided On : 10-07-2019
For the Petitioner: Mr. T. Lalnunsiama, Ms. Lallawmzuali, Ms. Angela Zothansangi, Mr. Robert Laltlana, Ms. TBC Malsawmtluangi, Mr. JH Ricky Lalruatfela.
For the Respondent: Mrs. Linda L. Fambawl, Addl. P.P, Mizoram
The act of disrobing a woman by force is a part of the offence of penetrative sexual assault, and the conviction under a lesser charge can be upheld if the facts indicate the commission of the lesser offence.
Headnote:
POCSO - Criminal Revision Petition - Sections 397/401 CrPC - Sessions Case No. 80/2014 - Section 6 of POCSO Act, Section 354B IPC - The court discussed Section 216 CrPC, the alteration of charges, and the relationship between the original and altered charges. The court found that the act of disrobing a woman by force is a part of the offence of penetrative sexual assault, and therefore, the conviction under Section 354B IPC was upheld.
Fact of the Case:
The petitioner was convicted under Section 354B IPC after the charge under Section 6 of POCSO Act was altered. The petitioner challenged the conviction on the grounds that the altered charge was not read and explained to him as per Section 216(2) CrPC.
Finding of the Court:
The court found that the act of disrobing a woman by force is a part of the offence of penetrative sexual assault, and therefore, the conviction under Section 354B IPC was upheld. The court also modified the sentence imposed on the petitioner due to his young age at the time of the incident.
Issues: The main issue was whether the Trial Court was required to read over and explain to the accused the altered charge under Section 354B IPC.
Ratio Decidendi: The court held that the act of disrobing a woman by force is inter-related to the offence of penetrative sexual assault, and therefore, no prejudice had been caused to the petitioner by the Trial Court in not reading and explaining the altered charge.
Final Decision: The conviction of the petitioner under Section 354B IPC was upheld, but the sentence was modified to Simple Imprisonment for three years and a fine of Rs. 20,000/-.
JUDGMENT :
Heard, Mr. T. Lalnunsiama, the learned counsel for the petitioner as well as Mrs. Linda L. Fambawl, the Addl. Public Prosecutor for the State/respondent No. 1. No one appears for the respondent No. 2.
2. This criminal revision petition has been filed under Sections 397/401 CrPC against the Judgment and Order dated 17.01.2019 and Sentence Order dated 31.01.2019, passed by the Special Court, POCSO Act, in Sessions Case No. 80/2014, by which the charge under Section 6 of POCSO Act has been altered to Section 354B IPC and the petitioner convicted under Section 354B IPC.
3. The petitioner has also been sentenced to undergo Simple Imprisonment for four years and to pay a fine of Rs. 20,000/-, in default, to undergo Simple Imprisonment for another six months.
4. The case of the prosecution is that on 01.06.2014, an FIR was submitted by the victim girl, namely, ‘X’, aged 17 years, stating that she had consumed liquor with four of her friends near Zotui Lui, near Chaltlang Dingdi Veng. While she was in a state of intoxication, she was raped (penetrative sexual assault) by the present petitioner and another person, whom she could not identify. Bawngkawn Police Station Case No. 103/2014 dated 01.06.2014 under Section 376D of IPC read with Section 6 of POCSO Act, 2012 was registered and investigated into.
5. The investigation revealed that ‘X’ had been drinking rum with her friends at Chaltlang Dingdi Veng, Aizawl on 01.06.2014. They were later joined by the petitioner and another person. Charge sheet was filed showing a prima facie case had been made out under Section 376D IPC read with Section 6 of POCSO Act, against the petitioner and the unknown person.
6. Charge was framed against the petitioner under Section 6 of POCSO Act. On completion of the Trial Court proceedings, the petitioner was convicted vide Judgment and Order dated 17.01.2019 by the Special Court, POCSO Act under Section 354B IPC, by altering the charge from Section 6 of POCSO Act pursuant to Section 216 CrPC. Consequently, the petitioner was sentenced to undergo four years Simple Imprisonment and to pay a fine of Rs. 20,000/-, in default, to undergo a further six months Simple Imprisonment. The other co-accused is untraceable.
7. The petitioner’s challenge to the impugned Judgment & Order dated 17.01.2019 is basically to the effect that when a charge is altered, the same has to be read over and explained to the accused as per Section 216(2) CrPC. However, the Trial Court did not read and explain to the petitioner, the altered charge of Section 354B IPC. The alteration of charge was known to the petitioner only when the impugned Judgment and Order was pronounced. The petitioner’s counsel accordingly submits that as Section 216(2) CrPC has not been complied with in letter, the impugned Judgment & Order should be set aside.
8. Mrs. Linda L. Fambawl, the learned Addl. Public Prosecutor, on the other hand submits that no prejudice has been caused to the petitioner by altering the charge from Section 6 of the POCSO Act to Section 354B IPC. She submits that though the petitioner was initially charged with the offence of aggravated penetrative sexual assault, the petitioner has been subsequently convicted for disrobing a woman under Section 354B IPC. As the offence of disrobing a woman is a part of the same transaction involved in penetrative sexual assault, no prejudice has been caused to the petitioner by the Trial Court, convicting the petitioner on a lesser charge. She also submits that the petitioner had also been given the opportunity to adduce evidence, which was however, not availed off by the petitioner. She accordingly submits that the present Criminal Revision Petition should be dismissed.
9. I have heard the learned counsels for the parties.
10. The only question that has to be decided in this Criminal Revision Petition is whether the learned Trial Court was required to read over and explain to the accused/petitioner, the altered charge under Section 354B IPC.
11. I
