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2022 Supreme(Gau) 1214
IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
MARLI VANKUNG, J.
Sh. Lalthangliana - Appellant
Versus
State of Mizoram – Respondent
Crl. A. (J) No. 40 of 2019(J)
Decided on : 04-11-2022
Advocate Appeared:
For the Appellant : Mr. Johny L. Tochhawng, Amicus Curiae.
For the Respondent: Mr. C. Zoramchhana, P.P, Mizoram.
Headnote:
Code of Criminal Procedure, 1973 – Section 54, 164, 313 – Protection of Children from Sexual Offences Act, 2012 – Section, 4 – contemplates that statement which is either written by the witness himself or reduced to writing by someone – envisages power of trial court to examine accused to explain evidence adduced against him – This is a Jail appeal against Judgment and Order passed by learned Judge, Special Court, POCSO Act, Judicial District, in Sessions Case arising out of Criminal Trial, vide CPI PS Case under Section of POCSO Act – Held, In light of above decisions of Apex Court, on perusal of prosecution evidence, it is also seen that victim prosecutrix is not able to tell date or time when appellant had raped her however she remembers that once it was and second time it was – statement of victim prosecutrix recorded under section Cr.P.C is also not enclosed with charge sheet, however, what she has stated is same as her statement she made before case I.O as confirmed by case I.O in his deposition – For above reasons, this Court finds no reason to interfere with Judgment & Order passed by learned Judge, Special Court POCSO convicting appellant under Section of POCSO and sentencing him to undergo with fine of in default S.I. month – Petition dismissed.
JUDGMENT :
Heard Mr. Johny L. Tochhawng, learned Amicus Curiae alongwith Mr. C. Zoramchhana, learned Public Prosecutor for the State respondent.
2. This is a Jail appeal against the Judgment and Order dated 26.07.2019 passed by the learned Judge, Special Court, POCSO Act, Aizawl Judicial District, Champhai in Sessions Case No. 78/2015 arising out of Criminal Trial No. 1142/2015, vide CPI PS Case No. 158/2014 dated 08.12.2014 under Section 4 of the POCSO Act.
3. The appellant was convicted under Section 4 of the POCSO Act and sentenced to undergo Rigorous Imprisonment for 7 years and to pay a fine of Rs. 5000/-, in default, Rigorous Imprisonment for one month vide, its Sentence Order dated 09.08.2019.
4. Brief facts of the case is that on 08.12.2014, one Mr. V.L. Chama Hnamte, Chairman, Child Welfare Committee, Champhai District submitted a written First Information Report (FIR) to the Champhai Police Station to the effect that one minor girl aged about 11 years was sexually assaulted by Mr. Lalthangliana/the appellant. As the mother and the appellant, who is the stepfather of the girl are both alcoholics, there was no one to submit the FIR and therefore, the complainant on being informed about the incident, had filed the FIR for taking necessary action. A case was duly registered vide Case No. CPI/PS Case No. 158/2014 under Section 4 of the Protection of Children from Sexual Offences Act (POCSO Act) against the appellant R/o Hnahlan Village, Champhai District. During investigation of the case, the case I.O examined the complainant and other witnesses; he visited the place of occurrence, seized the birth certificate of the prosecutrix and sent the prosecutrix for medical examination. She was also sent to the District Court, Champhai for recording her judicial statement. The case I.O. arrested the appellant and sent him to the Medical Officer for medical examination as per the requirement under Section 54 CrPC. On interrogation of the appellant and on perusal of the other evidences collected, the case I.O found prima facie case against the appellant under Section 4 of the POCSO Act and submitted the charge sheet.
5. The learned Judge, Special Court, POCSO Act framed charge against the accused under Section 4 of POCSO Act on 08.12.2015 to which the appellant pleaded not guilty and claimed for trial. The learned Trial Court examined as many as three(3) prosecution witnesses. The accused was examined under Section 313 CrPC, wherein he denied all the evidence adduced against him and denied sexually molesting his stepdaughter/prosecutrix. After hearing both the parties, the learned Trial Court passed the impugned Judgment and Order dated 26.07.2019 and the Sentence Order dated 09.08.2019. Aggrieved, the appellant has filed the instant Jail appeal.
6. Mr. Johny L. Tochhawng, learned Amicus Curiae submits that the Judgment and Order dated 26.07.2019 passed by the learned Judge, Special Court, POCSO Act is liable to be quashed and set aside for the reasons that there was a delay in filing the FIR for which no explanation was given whatsoever. He further submits that there is discrepancy in the deposition of the witnesses with regard to the place of occurrence. From the evidence on record, PW1 mentioned that the place of occurrence was at Serchhip and Hnahlan whereas PW4 and PW5 mentioned that the place of occurrence was at Hnahlan and Champhai.
7. The learned Amicus curiae also submits that the doctor, who conducted the medical examination of the victim girl/prosecutrix did not depose in the Court to prove the medical examination report of the prosecutrix and mere exhibit of a document will not prove the contents of the document and thus the appellant is entitled to get the benefit of doubt since the medical report has not been proved.
8. The learned Amicus Curiae further mentioned that the testimony of the victim girl/prosecutrix does not inspire confidence since he has not mentioned the date and time when the appellant was supposed to have al
