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THE HIGH COURT OF GAUHATI (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
NELSON SAILO, J
Sh. Lalluahpuia Fanai - Appellant
Versus
State Of Mizoram And Anr. - Respondent
CRL.A(J) 9 / 2023
Decided On : 28-01-2025
(A) Protection of Children from Sexual Offences Act, 2012 - Section 10 - Appeal against conviction - Appellant convicted under Section 10 of the POCSO Act and sentenced to five years of rigorous imprisonment and a fine of Rs. 5,000/- - The prosecution established that the appellant committed aggravated sexual assault on the victim, a minor, by making her touch his private part and vice versa - The evidence of the victim and corroborating witnesses was consistent and credible - The appellant's claims of inconsistencies in the victim's testimony were found unsubstantiated - The court emphasized that the appellant was given adequate opportunity to explain his position during the trial - Appeal dismissed. (Paras 2 , 5 , 15 , 16 )
(B) Examination under Section 313 Cr.PC - The court noted that the appellant was given the opportunity to respond to the evidence against him, and his plain denial did not undermine the prosecution's case - The court reiterated that the failure to ask specific questions during examination does not automatically vitiate the trial. (Paras 5 , 16 )
Facts of the case:
The appellant was accused of sexually assaulting a minor victim, who was a guest in the same household. The incident was reported after the victim's mother learned of it from a neighbor. The FIR was filed on 14.07.2020. (Paras 3 , 10 )
Findings of Court:
The court found the evidence of the victim and corroborating witnesses credible and consistent, establishing the appellant's guilt beyond reasonable doubt. The conviction and sentence were upheld. (Paras 15 , 16 )
Issues: The main issues included the credibility of the victim's testimony and whether the appellant was deprived of the opportunity to explain the circumstances of the alleged incident. (Paras 5 , 15 )
Ratio Decidendi: The court ruled that the consistent testimonies of the victim and corroborating witnesses established the appellant's guilt, and the appellant's denial did not provide a valid defense. The court emphasized the importance of the victim's age and the nature of the assault under the POCSO Act. (Paras 15 , 16 )
Result: Appeal dismissed.
JUDGMENT :
NELSON SAILO, J.
Heard Mr. Jonathan L. Sailo, learned Amicus Curiae for the appellant, Ms. Mary L. Khiangte, learned Addl. Public Prosecutor for the State and Mr. C. Tlanthianghlima, learned Legal Aid Counsel for the respondent No. 2.
[2.] This is an appeal filed by the appellant against the Judgment & Order dated 01.03.2022 passed by the Presiding Officer, Fast Track Special Court, Rape & POCSO Act, Aizawl, Mizoram in Criminal Trial No. 880/2020 whereby, the appellant has been convicted under Section 10 of the POCSO Act and sentenced to Rigorous Imprisonment for five (5) years and to pay a fine of Rs. 5,000/- with a default clause.
[3.] The case of the of the prosecution is that a written FIR was received by the Officer-in-Charge, All Women Police Station, Aizawl from the mother of the victim to the effect that the appellant who as the guest of the victim’s father in the month of January, 2020 made her touch his penis and he also touched her private part. She therefore requested that appropriate action be taken against him as per law for having sexually molested her minor daughter. It was also stated that the FIR was submitted late because of discussion on the issue amongst the family members. As a result of the FIR, All Women P.S Case No. 21/2020 dated 14.07.2020 under Section 10 of the POCSO Act was registered and investigated into. During the investigation, the case I/O examined the complainant, recorded her statements and seized the Birth Certificate of the victim from the possession of the complainant to ascertain the age of the victim in the presence of two (2) reliable witnesses. The statements of the victim was also recorded along with the statements of the two (2) seizure witnesses. The victim was also forwarded to the Civil Hospital, Aizawl for medical examination and to the Judicial Magistrate, Aizawl for recording her statements under 164 Cr.PC. Upon finding a prima facie case well established against the appellant, the case I/O submitted the charge sheet naming as many as 10 prosecution witnesses to prove the charge.
[4.] After the charge sheet was submitted, charge was framed against the appellant under Section 10 of the POCSO Act on 24.11.2020 and to which, he pleaded not guilty and claimed for trial. During the trial, the prosecution examined 7 out of 10 cited prosecution witnesses in the charge sheet. The prosecution witnesses examined were PW- 1, 2, 3, 4, 7, 8 & 10. After the evidence of the prosecution was over, the appellant was examined under Section 313 Cr.PC wherein, he plainly denied the questions put to him from the evidence led against him by the prosecution. The appellant did not examine any defense witness in his defense but cross examined the prosecution witnesses through his appointed counsel. Consequently, the learned Trial Court after hearing the parties decided the case vide the impugned Judgment & Order by convicting and sentencing the appellant in the manner as already stated above.
[5.] Mr. Jonathan L. Sailo, learned Amicus Curiae submits that there are in consistencies in the evidence of the prosecution including that of the victim. What the victim stated in her 164 statements are not similar to what she had stated during the trial and under the circumstance, her version is unreliable for convicting the appellant under Section 10 of the POCSO Act. The learned Amicus Curiae further submits that all the evidence that appeared against the appellant during the trial was not put to him in question during his examination under Section 313 of the Cr.PC. The evidence of the prosecution goes to show that the appellant asked the victim to touch his penis and the appellant touched the private part of the victim as well. However, the appellant was not asked as to whether he touched the private part of the victim or not. He submits that Section 313 Cr.PC is a provision conferring a valuable right upon the accused to establ
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