The trial court can convict for a cognate offence without altering charges if evidence supports the conviction, as per Section 222 Cr.P.C.

JUDGMENT :

B. BHATTACHARJEE, J.

1. This Criminal appeal is directed against the Judgment and order of conviction dated 24-03-2022 and sentence dated 24-03-2022 passed by the learned Special Judge (POCSO)/ Addl D.C(J), East Jaintia Hills District, Khliehriat in POCSO Case No. 2/2020 by which the accused/appellant was convicted under Section 7/8 of POCSO Act, 2012 and awarded a sentence of 5 (five) years of rigorous imprisonment and a fine of Rs.5,000/- (five thousand rupees) only and in default to undergo one month’s simple imprisonment.

1.1 The fact of the case as can be gathered from the materials on record is that a written FIR dated 23-09-2019 was lodged by the complainant (PW-1) before the Officer-in-Charge, Lumshnong P.S, East Jaintia Hills District, alleging that the appellant Shri. Wanlang Phawa has sextually assaulted his son (PW-2), aged about seven years, on 23-09-2019 at 11.00 A.M. The said FIR was received vide GDE No. 8 dated 23-09-2019 and a case was registered as Lumshnong P.S C/No. 46(9)2019 u/S 3(a) POCSO Act and the matter was investigated into. Upon completion of the investigation, a charge-sheet bearing No. 32/19 dated 16-11-2019 u/S 377 IPC R/W Section 3(a)/5(m)/6 of POCSO Act was filed against the appellant with a prayer for allowing submission of FSL report on a subsequent date. Thereafter the FSL report was submitted to the Trial Court vide a supplementary charge-sheet dated 11-11-2020.

2. On production of the appellant before the Trial Court, a Legal Aid Counsel was provided to him and after hearing both the sides, the charge under Section 5(m)/6 of POCSO Act read with Section 377 IPC was framed against the appellant on 15-01-2020. The appellant pleaded not guilty and claimed to be tried. In support of the charges, the prosecution examined 11 (eleven) PWs and exhibited 9 documents and also produced 29 material exhibits. After the closure of the prosecution evidence, the statement of the appellant u/S 313 Cr. P.C was recorded on 18-02-2022. On the refusal of the appellant to adduce defence witness, the matter was finally heard on 10-03-2022 and thereafter vide impugned judgment and order dated 24-03-2022, the Trial Court convicted the appellant u/S 7/8 of POCSO Act and also passed the order of sentence on the same day awarding five years rigorous imprisonment and a fine of Rs. 5,000/- only and on default to undergo one month’s simple imprisonment to the appellant.

3. Mr. R. H. Alice, the learned Legal Aid Counsel, appearing for the appellant submits that the charges against the appellant was framed under Section 5(m)/ 6 of POCSO Act read with Section 377 IPC but the learned Trial Court has convicted the appellant under Section 7/8 of POCSO Act by altering the charges while delivering the impugned judgment and order of conviction. He contends that as per the mandate of Section 216 (1) Cr. P.C, a Court may alter or add to any charge at any time before judgment is pronounced and not at the time of pronouncing of judgment. He further contends that the alteration of a charge was also not read and explained to the appellant by the Trial Court which also violated the stipulation made in Section216(2) Cr. P.C. The other point raised by the learned counsel for the appellant is that the statement of the survivor is not corroborated by any other piece of evidence and hence, the impugned judgment and order and the order of sentence cannot be sustained in law and is liable to be set aside and quashed. In support of his argument the learned counsel has placed reliance on the judgment of the Apex Court reported in the following cases: -

i) Hasa