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2019 Supreme(Gau) 817
IN THE HIGH COURT OF GAUHATI, AIZAWL BENCH
Michael Zothankhuma, N. Sailo, JJ.
Vanlalruatpuia - Appellant
Vs.
State of Mizoram And Another - Respondents
Criminal Appeal No. 20 of 2018
Decided On : 22-10-2019
Victor L Ralte, Adv., K. Roland, Adv., Linda L. Fambawl, Adv.
The importance of framing a charge to enable the accused to have a clear idea of the offence and the essential facts to be met.
Headnote:
POCSO - Conviction under Section 6 - POCSO Act, 2012 - Summary of Acts and Sections: The court discussed the applicability of Section 6 for aggravated penetrative sexual assault under Section 5(m) of the POCSO Act, and highlighted the error in convicting the appellant under Section 6 while the charge was framed only for penetrative sexual assault under Section 3. The court emphasized the importance of framing a charge to enable the accused to have a clear idea of the offence and the essential facts to be met.
Fact of the Case:
The victim, a minor, alleged rape by the appellant. The appellant challenged the conviction under Section 6 of the POCSO Act, citing inconsistencies and contradictions in the evidence, delay in filing the FIR, and lack of proof of the victim's age.
Finding of the Court:
The court found an error in convicting the appellant under Section 6 for aggravated penetrative sexual assault under Section 5(m) while the charge was framed only for penetrative sexual assault under Section 3. The court emphasized the importance of framing a charge to enable the accused to have a clear idea of the offence and the essential facts to be met.
Issues: The issues included the reliability of the victim's testimony, inconsistencies in the evidence, delay in filing the FIR, and lack of proof of the victim's age.
Ratio Decidendi: The court emphasized the importance of framing a charge to enable the accused to have a clear idea of the offence and the essential facts to be met. It highlighted the error in convicting the appellant under Section 6 while the charge was framed only for penetrative sexual assault under Section 3.
Final Decision: The court set aside the impugned Judgment & Order and remanded the case back to the Trial Court to start the proceedings afresh from the stage of consideration of charge or alteration of the charge.
JUDGMENT :
Michael Zothankhuma, J.
Heard Mr. Victor L. Ralte, the learned counsel for the appellant. Also heard Mrs. Linda L. Fambawl, the Addl. Public Prosecutor for the State.
2. This is an appeal challenging the Judgment and Order dated 04.05.2018 passed by the Special Court, POCSO Act, 2012 in SR No. 1/2018 arising out of Siaha Police Station Case No. 75/2017, by which the appellant has been convicted under Section 6 of the POCSO Act, 2012 and sentenced to undergo Rigorous Imprisonment for 15 years with a fine of Rs. 3000/-, in default, 30 days RI, vide Order dated 07.05.2018.
3. The prosecution case in brief is that C. Nikheni, mother of the victim, filed an FIR on 01.08.2017 with the Siaha Police Station stating that on 31.07.2017 at around 3 a.m, her daughter H. C. Lalpianthangi, 12 years, who was sleeping over, in the residence of her friend Lalduatpuia, was raped by one Ruatpuia S/o Laldina. In pursuance to the FIR filed on 01.08.2017, Siaha Police Station Case No. 75/2017 dated 01.08.2017 was registered. Investigation into the case was initiated and charge sheet was filed, whereby a prima facie case was found to the effect that the appellant Vanlalruatpuia had raped the victim who was 11 years 7 months.
4. Charge was framed against the appellant on 31.01.2018 which stated that the offence of penetrative sexual assault punishable under Section 6 of the POCSO Act had been committed, wherein the appellant pleaded not guilty. Thereafter, the trial proceeded and four prosecution witnesses alongwith three defence witnesses were examined by the Trial Court. The appellant was thereafter examined under Section 313 CrPC. The learned Trial Court thereafter found the appellant to be guilty of having committed aggravated penetrative sexual assault under Section 9(m) of the POCSO Act and convicted the appellant under Section 6 of the POCSO Act, vide the impugned Judgment and Order dated 04.05.2018. The appellant was sentenced to undergo 15 years Rigorous Imprisonment with a fine of Rs. 3000/-, in default, 30 days RI, vide Order dated 07.05.2018.
5. The appellant's counsel submits that a perusal of the evidence and the documents on record indicates that the victim was tutored while giving her statement, inasmuch as, the victim in her examination-in-chief has stated that she had gone to the residence of the accused for studying and sleeping, as there was noise in her house. However, the evidence of DW1, who was the wife of the owner of the house in which the victim slept, stated in her evidence that she had seen the victim running past her house and on being asked, the victim had told her that she was afraid of her elder brother who had climbed a partition wall with the aim to enter into her room. DW-I then asked the victim to stay in her house to sleep, which was agreed upon by the victim. The appellant's counsel thus submits that the testimony of the victim is not reliable as the reason for sleeping over in her neighbour's house was not for the purpose of studying, but due to the reason that the victim was afraid of her brother.
6. The appellant's counsel also submits that the Medical Officer was not examined to prove the Medical Examination Report of the victim and that the age of the victim was also not proved. The learned counsel submits that though there is no dispute to the fact that the victim was a minor at the time of the alleged incident, there is no proof that the victim was below 12 years of age at the time of the alleged incident. In this regard, he has relied upon the Certificate of Child Dedication issued by the Evangelical Church of Mara Land, which shows that the date of birth of the victim was 17.12.2005 and that the date of dedication was 13 days after her birth, i.e. 30.12.2005. He submits that the name of C. Nikheni(PW1) was shown as the mother of the victim in the said certificate. However, the evidence of C. Nikheni (PW1) is to the effect that she had taken custody of the victim girl after the victim had attained 8
