Back
IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH AT AIZAWL BENCH
Michael Zothankhuma, Nelson Sailo, JJ.
Sh. Vanlalvena, S/o Selvela (L) – Appellant
Versus
State of Mizoram & Anr. – Respondents
Crl.A.No. 48 of 2019(J)
Decided On : 13-01-2021
POCSO Act, 2012 - Section 6 Section 6 - Undergo Rigorous Imprisonment – First Information Report - Trial Court - Evidence of the victim girl - prosecution story in brief is that an FIR was lodged by aunt of victim with Officer-in-charge Police Station to effect that her niece was had been taken by appellant into his house and inside bedroom - Appellant then kissed her private parts and inserted his finger therein - He even made her touch his private parts - Complainant also stated that she had reason to believe that appellant had tried to rape her niece - On basis of FIR Police Case was registered under Section 10 of POCSO Act, 2012 - Victim was taken for medical examination on the same day and medical report stated that victim’s hymen had been torn and penetrated –
Finding of the Court: As evidence of victim girl is to the effect that appellant had licked victim’s private parts and the same not being rebutted by appellant court find that there has been penetrative sexual assault as reflected in Section 3 POCSO Act, 2012. Further, the child being below of age offence attracts Section 5 punishment for which would attract Section 6 of POCSO Act, 2012 - In view of reasons stated above court do not find any ground to interfere with the impugned Judgment & Order in so far as it convicts the appellant under Section 6 of POCSO Act, 2012. Though the appellant had been convicted earlier under Section 12 of POCSO Act, 2012 keeping in view the fact that appellant is now around court are of the view that interest of justice would be served if appellant is sentenced to undergo minimum sentence of Rigorous Imprisonment with a fine of in default thereof further Rigorous Imprisonment sentence imposed upon appellant is accordingly modified to extent indicated above - A reading of above Judgments of Apex Court clearly goes to show that though victim was only old at the time of incident, a child witness can also be a reliable witness –
Result: Order accordingly
JUDGMENT :
Michael Zothankhuma, J
Heard Mr. Samuel Vanlalhriata Chhangte, learned Amicus Curiae and Mr. C. Zoramchhana, learned Additional Public Prosecutor, Mizoram for the State.
2. This appeal has been filed against the Judgment & Order dated 30.08.2019 passed by the Special Court, POCSO Act, 2012, Champhai in Sessions Case No. 70/2018, arising out of Criminal Trial No. 794/2018, by which the appellant was convicted under Section 6 of the POCSO Act, 2012 and sentenced to undergo Rigorous Imprisonment for life with a fine of Rs. 5,000/- and in default thereof, further R.I. for 2 months.
3. The prosecution story in brief is that an FIR was lodged by the aunt of the victim on 04.05.2018 with the Officer-in-charge, Champhai Police Station to the effect that her niece, who was 4 years old, had been taken by the appellant into his house and inside the bedroom. The appellant then kissed her private parts and inserted his finger therein. He even made her touch his private parts. The complainant also stated that she had reason to believe that the appellant had tried to rape her niece. On the basis of the FIR dated 04.05.2018, Champhai Police Case No. 46/2018 dated 04.05.2018 was registered under Section 10 of the POCSO Act, 2012. The victim was taken for medical examination on the same day and the medical report stated that the victim’s hymen had been torn and penetrated.
4. The investigating Officer thereafter took the statement of the victim girl, the witnesses and also had the statement of the victim recorded by a Judicial Magistrate. On completion of the investigation, the Investigating Officer found that a prima facie case had been established against the appellant under Section 6 of the POCSO Act, as he had touched and kissed the private parts of the victim on 03.05.2018.
5. After the charge sheet had been submitted and the case committed to the Special Court, POCSO Champhai, charge under Section 6 of the POCSO Act was framed against the appellant on 24.07.2018, wherein the appellant pleaded not guilty and claimed for trial.
6. The learned Trial Court thereafter recorded the evidence of four witnesses including the victim girl. After the prosecution led their evidence, the statement of the appellant under Section 313 Cr.P.C was recorded and upon hearing the parties, the learned Trial Court came to a finding that the appellant was guilty of having committed an offence under Section 5(n) of the POCSO Act, 2012, as he admitted that he touched the vagina of the victim. The learned Trial Court also recorded the fact that the appellant had been convicted under Section 12 of the POCSO Act in SC No. 85/2017 arising out of Champhai P.S. Case No. 10/2017 vide Judgment & Order dated 05.02.2017.
7. After hearing the parties on the question of sentence, the learned Trial Court sentenced the appellant to suffer Rigorous Imprisonment for life and to pay a fine of Rs. 5,000/-, in default Rigorous Imprisonment for a period of 2 months.
8. The learned Amicus Curiae submits that the case had been initially registered as Champhai Police Station Case No. 46/2018 under Section 10 of the POCSO Act, 2012. However, the appellant had been convicted under Section 6 of the POCSO Act, 2012 without altering the charge by adhering to the provisions of Section 216 of the Cr.P.C. He submits that he has got no other submission to make with regard to the facts of the case, as the evidence of the prosecution has not been rebutted and as the appellant, in his examination recorded under Section 313 Cr.P.C. admitted that he had confined the victim of 4 years in his residence on 03.05.2018 at around 3:30 PM and that he had touched her vagina.
9. Mr. C. Zoramchhana, learned Public Prosecutor, Mizoram on the other hand submits that the evidence of the victim clearly shows that the appellant had kissed the vagina of the victim and that he had made her touch his private parts. He accordingly submits that the said act clearly attracts the provisions of Section 3(d) of the POCSO Ac
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
