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2019 Supreme(Gau) 379
IN THE HIGH COURT OF GAUHATI, AIZAWL BENCH
Michael Zothankhuma, J.
Malsawmkima - Appellant
Vs.
State of Mizoram - Respondent
Criminal Revision Petition No. 2 of 2019
Decided On : 10-07-2019
T. Lalnunsiama, Adv., Lallawmzuali, Adv., Angela Zothansangi, Adv., Robert Laltlana, Adv., T.B.C. Malsawmtluangi, Adv., J.H. Ricky Lalruatfela, Adv., Linda L. Fambawl, Adv.
Headnote:
Criminal Procedure Code – Sections 397, 401 – Indian Penal Code – Section 354B – POCSO Act – Section 6 – Alteration of Charge Issue – The petitioners challenge to the impugned Judgment & Order 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 – Held, as the offence under Section 354B IPC is inter-related/ closely related to the offence under Section 6 of the POCSO Act and the alteration of charge had been done after the final hearing had taken place and prior to/ at the time the Judgment had been delivered by the Trial Court, Section 216(2) CrPC need not be applied literally, as the altered charge is also a part of the original charge – In that context, this Court finds that no prejudice had been caused to the petitioner in not going by the letter of Section 216 (2) CrPC, as Section 354B IPC was already implicit at the time of framing of charge under Section 6 of the POCSO Act – Accordingly, this Court is not inclined to interfere with the conviction of the petitioner under Section 354B IPC – However, on considering the sentence imposed upon the petitioner, this Court is of the view that the petitioner should be sentenced to a lesser period in view of his young age at the time of the incident i.e. he was two months short of completing 22 years at the time of the offence – In view of the above reasons, while the conviction of the petitioner under Section 354B IPC is not interfered with, the petitioner is however sentenced to undergo Simple Imprisonment for three years and to pay a fine of Rs. 20,000/-, in default, Simple Imprisonment for a further period of six months – Order Accordingly
JUDGMENT :
Michael Zothankhuma, J.
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 Se
