Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Gau) 819

IN THE HIGH COURT OF GAUHATI, AIZAWL BENCH
MICHAEL ZOTHANKHUMA, J.
Ramvanneia - Appellant
Versus
State of Mizoram and Another - Respondents
Crl. A. No. 7 of 2021 and I.A.(Crl.) No. 18 of 2021
Decided On : 09-11-2021

Advocates Appeared:
For the Appellant : Mr. Aldrin Lallawmzuala.
For the Respondents: Mrs. Linda L. Fambawl.

The main legal point established in the judgment is the significance of the reliability of the victim's testimony, the delay in filing the FIR, and the court's power to recall and re-examine witnesses under Section 311 of the Cr. P.C.

Headnote:
POCSO Act - Rape Allegation - Section 6 of the POCSO Act, 2012 - Summary of Acts and Sections: POCSO Act, 2012, Section 6 - The court discussed the evidence of the victim, the re-examination, and the contradictory statements, and analyzed the legal provisions related to the reliability of the victim's testimony and the significance of the delay in filing the FIR. The court invoked Section 311 of the Cr. P.C. to consider recalling the witness and re-examining her, and ultimately found the evidence of the victim to be suspect due to contradictions and lack of trustworthiness.
Fact of the Case:
The appellant was convicted under section 6 of the POCSO Act, 2012 for allegedly raping a minor. The victim initially accused the appellant but later retracted her statement, citing pressure from her sister. The defense argued that the delay in filing the FIR and the contradictory statements raised doubts about the allegation.
Finding of the Court:
The court found the evidence of the victim to be suspect due to contradictions and lack of trustworthiness. It held that the delay in filing the FIR was fatal to the prosecution's case and granted the benefit of doubt to the appellant, setting aside the impugned judgment and ordering the appellant's release.
Issues: Reliability of victim's testimony, significance of delay in filing the FIR, invocation of Section 311 of the Cr. P.C. for recalling and re-examining the witness.
Ratio Decidendi: The court's decision was based on the lack of trustworthiness in the victim's testimony, the fatal significance of the delay in filing the FIR, and the invocation of Section 311 of the Cr. P.C. to consider recalling and re-examining the witness.
Final Decision: The court set aside the impugned judgment, allowed the appeal, and ordered the appellant's immediate release from jail.

ORDER :

1. Heard Mr. Aldrin Lallawmzuala, learned, counsel for the appellant. Also heard Mrs. Linda L. Fambawl, learned Additional Public Prosecutor for the State.

2. This appeal has been filed against the judgment and order dated 19.1.2021 passed by the Special Court, POCSO Act, 2012 in SC No. 80/2018 arising out of Criminal Trial No. 837/2018, by which the appellant was convicted under section 6 of the POCSO Act, 2012 and sentenced to undergo Rigorous Imprisonment for 10 years and to pay a fine of Rs. 5000, in default Simple Imprisonment for I year, vide Sentence Order dated 2.2.2021.

3. The prosecution case in brief is that an FIR was filed by one Mrs. M.S. Dawngliani, w/o Mr. L. Rinmawia, stating that her 15 years old sister “X” had been raped by the appellant in July/August 2016 at Ar Farm Veng, Phullen village in their jhum hut and in November 2017. He again raped the victim at Ar Farm Veng, Phullen village and once behind the Anganwadi building in Phullen village. On the basis of the FIR submitted by [he victim's sister, Saitual Police Station Case No. 8/2018 dated 13.3.2018 was registered under section 6 of the POCSO Act, 2012 and investigation was initiated.

4. During investigation, the victim X and other witnesses were examined. Victim X was also sent to the Sub-District Hospital at Saitual for medical examination on 13.3.2018, wherein the medical examination report stated that no hymen could be seen. The victim X was also produced before the Judicial Magistrate, who recorded her statement, which was to the effect that the appellant had raped her. The Birth Certificate of victim X showed that she was born on 29.9.2003 and the appellant was arrested on 13.3.2018. As the Investigating Officer (I.O.) found a prima facie case under section 6 of the POCSO Act well established against the appellant, charge sheet was filed in the court of the Chief Judicial Magistrate, Aizawl who then committed the case for Trial before the Special Court, POCSO Act.

5. On 30.7.2018, charge under section 6 of the POCSO Act, 2012 was framed against the appellant, to which he claimed trial, stating that he was not guilty. The trial court thereafter examined 7 prosecution witnesses and 3 defence witnesses which included the appellant himself. After examination of the appellant under section 313, Cr. P.C., the learned trial court convicted the appellant under section 6 of the POCSO Act vide the impugned judgment and order dated 19.1.2021 and sentenced the appellant to undergo 10 years rigorous imprisonment along with a fine of Rs. 5,000, in default Simple Imprisonment for 1 month, vide Sentence Order dated 2.2.2021.

6. Being aggrieved by the impugned judgment and order and the sentence order as indicated above, the present appeal has been filed by the appellant/convict.

7. The learned counsel for the appellant submits that the victim X (PW-6) was examined by the trial court on 10.9.2018, wherein the victim stated that the appellant had raped her in the year 2016 and also in November, 2017. However, in the re-examination conducted upon the victim by the trial court on 12.11.2020, the victim stated that she had fabricated the story of rape against the appellant due to the fact that the victim's sister, M.S. Dawngliani wanted her mother and the appellant to separate.

8. The learned counsel for the appellant further submits that the FIR had been filed only on 13.3.2018, while the alleged rapes had occurred in the years 2016 and 2017. He submits that due to the delay in filing the FIR, the allegation of rape made against the appellant is suspect. The appellant's counsel submits that the victim girl's mother had separated from her husband Vanlalsiama. Thereafter, the victim girl's mother started living with the appellant as man and wife, though there was no proper marriage between them. He submits that there is no question of the appellant having raped his lover's daughter, who was a minor.

9. The appellant's counsel further submits that the evidence of DW-1,