Page No.# 1/16 GAHC030002802024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./18/2024 Rochangliana Khawhai, Champhai District, Mizoram VERSUS The State of Mizoram and Anr. Aizawl2:Sh. Lalnunthar Advocate for the Petitioner : Mr. Johny L Tochhawng Advocate for the Respondent : P.P./Addl.PP, Mizoram B E F O R E HON’BLE MR. JUSTICE NELSON SAILO HON’BLE MRS. JUSTICE MARLI VANKUNG Date of hearing : 19.02.2025 Date of Judgment : 27.02.2025 J U D G M E N T & O R D E R (CAV) (Nelson Sailo, J) Heard Mr. Johny L Tochhawng, learned Legal Aid Counsel for the appellant, Mrs. Mary L Khiangte, learned Addl. Public Prosecutor, Mizoram for respondent No. 1 and Mr. Roshan Subedi, learned Amicus Curiae for respondent No. 2. This is an Page No.# 2/16 appeal against the Judgment & Order dated 14.08.2023 passed by the Presiding Officer, First Track Special Court (R&P), POCSO Act, Champhai in FT SC (CPI) POCSO No. 54/2023 corresponding to Crl. Tr. No. 168/2021 whereby, the appellant was convicted under Section 6 of the POCSO Act and sentenced to undergo Rigorous Imprisonment for a period of 20 years and to pay a fine of Rs. 5000/- with a default clause. [2.] The case of the prosecution in brief is that an FIR was received from one Sh. Lalnunthara (father of the victim and PW-1) to the effect that while his wife was giving a bath to their daughter/victim aged 3 & ½ years on 26.09.2021, their daughter complained of pain in her navel, private part and lips. On asking as to what was the reason for the pain, she informed her mother that the appellant used to lubricate her private part, her navel and also put his finger in her mouth. According to him it was evident that the appellant had assaulted her daughter sexually sometime in the month of September 2021 and therefore he filed the FIR requesting legal action be taken against the appellant. As a result, Khawzawl P.S Case No. 31/2021 dated 29.09.2021 under Section 6 of the POCSO Act was registered and investigated into. During the investigation, the Investigating Officer examined the complainant, the victim and other witnesses while sending the victim for medical examination to the Medical Officer in Khawzawl hospital. Upon completing the investigation, the Page No.# 3/16 Investigating Officer found a prima facie case well established against the appellant and accordingly, filed the charge-sheet. [3.] Charge was framed against the appellant under Section 6 of the POCSO Act and it was read over and explained to him. The appellant pleaded not guilty and claimed to be tried. Accordingly, trial was held against the appellant. During the trial, the prosecution examined as many as 7 prosecution witnesses including the victim, whereas the defence did not examine any defence witness. The appellant was examined under Section 313 Cr.P.C and upon hearing the parties, the Trial Court passed the impugned judgment & order in the manner as already stated herein above. Mr. Johny L Tochhawng, learned Legal Aid Counsel by referring to the examination of the appellant under Section 313 Cr.P.C submits that only 3 (three) questions were put to the appellant and that he was not asked as to whether he would like to examine any witness in his defence. The learned Trial Court on the other hand in the impugned judgment & order recorded that the appellant was asked as to whether he would like to produce and examine defence witnesses. He submits that the same has been recorded without the appellant actually being asked and therefore wholly misquoted. [4.] Mr. Johny L Tochhawng, learned Legal Aid Counsel further submits that Page No.# 4/16 the evidence on record goes to show that the victim was examined by a male doctor and that the same is in violation of Section 27 of the POCSO Act. Therefore, even on this count, the impugned judgment & order is not sustainable. He also submits that the victim was said to have been interrogated by the male police which is again in violation of Section 157 of the Cr.P.C. He submits that since there are no consistency in the evidence made by the victim and the prosecution as a whole, the impugned judgment & order should be set aside. [5.] Ms. Mary L Khiangte, learned Addl. Public Prosecutor, on the other hand, submits that Section 157 of the Cr.P.C provides that in relation to an offence of rape, the recording of the statement of the victim is to be conducted by a women police officer in the presence of her parents or guardian or near relatives as far as practicable. Therefore, it is not mandatory that in every case it must and should be recorded only by a women police officer. She submits that from the evidence of PW-6, who is the case I.O, the victim was examined through a women constable C. Vanlallawmi and therefore, Section 157 Cr.P.C has not been violated as alleged by the learned Legal Aid Counsel. She further submits that Section 24 of the POCSO Act likewise provides that the statement of the victim child shall be recorded as far as practicable by a police officer not below the rank of Sub-Inspector. The same, therefore, does not make it Page No.# 5/16 mandatory that the statement of the victim child must and should be recorded only by a women police officer. In the cross-examination of the case I.O, it clearly stated that the victim was examined by a female constable under his supervision. [6.] She further submits that from the medical examination report of the victim it can be seen that the examination was done in the presence of a staff nurse who had given her signature in the report as a female witness. At any rate, the appellant has not been prejudiced in any manner and therefore, mere technicalities cannot have an adverse effect on the case of the prosecution when the foundational facts have been established. The learned Addl. Public Prosecutor further submits that the victim was examined as PW-7 and before her statements were recorded, the learned Trial Court had asked her several preliminary questions to see as to whether she was able to answer to the questions rationally. Upon finding that the victim had no difficulty in answering the questions put to her, her deposition was recorded. The learned Addl. Public Prosecutor therefore submits that under the facts and circumstances, the impugned judgment & order of conviction and sentence may not be interfered with by this Court. [7.] Mr. Roshan Subedi, learned Amicus Curiae appearing for the Page No.# 6/16 respondent No. 2 adopts the argument of the learned Addl. Public Prosecutor and also submits that the evidence of the prosecutrix is corroborated by the evidence of her mother who was examined as PW-4. Referring to the judgment & order, the learned Amicus Curiae submits that the learned Trial Court not only took into consideration, the statements of the victim recorded under Section 164 Cr.P.C but also those recorded under Section 161 Cr.P.C and found them to be similar throughout the entire proceedings. Such being the case, the victim clearly qualifies to be a sterling witness and the appellant can be convicted even solely on the basis of the statements made by the victim. In support of his submission, the learned counsel relies upon the case of Ganesan vs. State represented by its Inspector of Police, (2020) 10 SCC 573. [8.] Referring to Section 30 of the POCSO Act, the learned Amicus Curiae submits that a presumption of culpable mental state can be drawn against the appellant and when there is such presumption, it is for the appellant to prove that he had no such mental state. The appellant having not discharged such burden, he has rightly been convicted and sentence by the learned Trial Court. The learned Amicus Curiae further submits that insofar as the submission made on behalf of the appellant that he was denied the opportunity of producing defence witnesses, there is clearly a provision under Section 315 Cr.P.C wherein, the accused can make a request in writing for being called as a witness. He Page No.# 7/16 submits that the appellant could have availed of the provision if he wanted to but as he failed to do so, no such plea can be taken at this stage. He thus submits that since there is no merit in the appeal, the same should be dismissed. [9.] We have heard the submissions made by the learned counsels for the rival parties and perused the materials available on record. In order to see as to whether the conviction and sentencing of the appellant by the impugned judgment & order can be sustained, the evidence presented before the Trial Court may be examined. [10.] PW-1 is the father of the victim and also the complainant. In his examination-in-chief, he stated that on 26.09.2021 his wife gave their daughter who was 3 years of age a bath and the child complained of pain on her navel and vagina. His wife asked her why she felt the pain and to which she replied that the appellant had touched her vagina with his finger and spread fluids around her navel. He then suspected that the appellant had committed sexual assault upon his daughter and filed FIR at Khawzawl Police Station on 29.09.2021 requesting for legal action be taken against the appellant. In his cross-examination, PW-1 stated that he has no blood relation with the appellant and he cannot say the exact time of occurrence of the alleged offence. He Page No.# 8/16 stated that his daughter is not scared of the appellant and when they submitted the FIR to the concerned Police Station, he and his daughter were interrogated by male Police personnel. [11.] PW-2 and PW-3 are the seizure witnesses who deposed before the Court that the original birth certificate of the victim was seized by the Police in their presence and date of birth of the victim was 14.03.2018. [12.] PW-4 is the mother of the victim who stated in her examination- in-chief that she knows the appellant and she resides at Khawhai Venglai and has three sons with her husband (PW-1). The appellant was residing near their residence and often visited their house. On 26.09.2021, which was a Sunday, after taking breakfast she gave her 3 ½ year old daughter a bath. When she touched her navel she felt pain and she therefore asked her what was the reason. The child then replied that the appellant used to touch her vagina and he inserted his penis inside her vagina and spread fluids on her buttock. She then realized that the appellant had sexually assaulted her daughter and had sexual intercourse in her residence several times. After approaching the MHIP and the Village Council of Khawhai seeking their help, they submitted a FIR in Khawzawl Police Station. In her cross-examination, she stated that the victim did not disclose the date and time when she was touched/assaulted by the Page No.# 9/16 appellant and whatever she had narrated was what she heard from, her daughter. Upon hearing about the incident from her daughter, she checked her private part but did not see any injury and she thought maybe she was unable to understand if any injury was sustained by her daughter on her private part. [13.] PW-5 is the Medical Officer who examined the victim. In his examination-in-chief he stated that the victim was brought to him on 29.09.2021 at 12:40 PM and her father told him that she was sexually assaulted many times by the appellant sometime in the month of September, 2021. According to the father of the victim, the sexual act was committed upon his minor daughter on 26.09.2021. The clothes of the victim had already been changed and she had also been given bath after the incident. On examination, he found the physical mental health of the victim to be normal and there was no influence of alcohol or drugs on her. No seminal stains or other stains were present in her clothes and no marks of violence present in her body. The hymen of the victim was ruptured and there was no sign of discharge or infection present. Since the physical appearance of the victim showed that she was a minor and that her age was also disclosed by her father, he found no requirement to have clinical examination to determine her age. PW-5 exhibited the medical report and his signature as P-3 and P-4(a). Page No.# 10/16 [14.] PW-5, on being cross-examined, stated that in his opinion there can be traumatic effect on victim of sexual assault but however, at a very young age of 3 & ½ years it was possible that there may not be any effect as the child will be too young to understand what had happened to her. He further stated that in his opinion there may not be any mental effect on the victim and even though the hymen is ruptured, it is possible that there will be no sign or effect on the labia minora of the victim as penis is made up of soft tissue. Effect will be less in case of fingering but due to sharpness of nails it is possible that there can be minor effects. He also stated that the rupture of the hymen can happened due to accident but in such case, there would be bruise or scars in the surrounding areas. [15.] PW-6 is the case I.O and in his examination-in-chief, he stated that on 29.09.2021 at around 11:30 AM, a written FIR was received from PW-1 to the effect that on 26.09.2021 his daughter who was of 3 years of age (the victim) disclosed to her mother that the appellant had sexually assaulted her by touching her private part. On being endorsed to take up the investigation, he examined the complainant by visiting the place of occurrence and seized the original birth certificate of the victim in the presence of seizure witnesses. As per the birth certificate of the victim, she was born on 14.03.2018. He examined the victim through woman Constable C. Vanlallawmi and recorded her Page No.# 11/16 statements. [16.] The victim stated that she often went to the house of the appellant and sometimes he himself used to come to their residence where he used to lay her down on the bed and played with her private part by touching her vagina and after taking off his underpants, he pushed her vagina and her navel with his penis. He forwarded the victim to the Medical Officer at Khawzawl for medical examination and the medical report revealed that the victim was physically and mentally healthy and her hymen was ruptured. He also forwarded the appellant for medical examination and on being examined, he was found fit to be kept in Judicial Custody or Police Custody and free from COVID-19. He arrested the appellant and recorded his statements. The appellant stated that he divorced his wife in the year 1999 after having two children from their marriage. He stayed alone at Venglai, Khawhai and the children in the neighborhood were very fond of him and often came to his residence. He used to play with them and sometimes they entered in the bedroom and played on his bed. [17.] PW-6 further stated that he also examined the mother of the victim and recorded her statements. His investigation revealed that the appellant sexually assaulted the victim in his bed by touching her navel and vagina with his fingers and penis. He therefore found a prima facie case under Page No.# 12/16 Section 6 of the POCSO Act well established against the appellant, and prayed the Court to try the appellant under the said Section of law. PW-6 exhibited the birth certificate of the victim, medical examination report of both victim and the appellant amongst others. In his cross-examination, he stated that it was a fact that the victim was examined by a female constable under his supervision. At first the victim could not properly narrate about the incident but gradually she was able to do so. [18.] PW-7 is the victim herself and in her examination-in-chief, she answered certain preliminary questions put to her by the Court. The Court, after conversing with her for sometime, found her to be fit to give her statements. PW-7 stated that the appellant made her lie down and then he touched her private part with his private part and inserted his private part into hers. On being asked as to in what other manner the appellant touched her, the victim replied that the appellant kissed her on her lips and he removed his pants and she saw his buttocks. [19.] It is seen that prior to the examination of the victim as PW-7 on 25.04.2023, an attempt was made earlier on 08.07.2022 to examine her before the Court as the prosecution witness but however, she could not say anything when she heard the name of the appellant being mentioned despite the Page No.# 13/16 presence of her mother. She started shivering and from her gesture it was seen that she was still traumatized. Her statements could not be taken as she started crying even when a simple question was being asked. Therefore, her evidence could not be recorded and the Court decided to appoint a support person and give her another chance. [20.] From the evidence led by the prosecution, it may be seen that the first person to whom the act of sexual assault on the victim came to light was with her mother (PW-4) when she gave her a bath on 26.09.2021. According to the PW-4, while bathing her daughter she felt pain when she touched her navel. When she enquired about it, the victim stated that the appellant used to touch her vagina and inserted his penis and he spread fluid on her buttock. The victim was also examined as PW-7 and she easily answered the preliminary questions put to her rationally. On being asked as to why she considered the appellant to be a bad person, she stated that he made her lie down and then touched her private part with his private part and also inserted the same in her private part. [21.] It is also seen that the victim was even asked preliminary questions while she was being examined under Section 164 Cr.P.C and to which she had given rational answers. On being asked as to how the appellant had Page No.# 14/16 touched her, she replied that she had gone to his house where he made her lie down on the bed and then pointing her navel and private part, she said that the appellant touched her there. In respect of the other queries made to her, she gave answers which she reiterated during trial before the Court. The learned Trial Court in the impugned judgment & order also came to a finding that the statements made by the victim under Section 164 and Section 161 Cr.P.C were similar throughout the length of the recording. The medical report of the victim showed her hymen to be ruptured. Although the Medical Officer stated that rupture of the hymen can be caused due to accident but in such case, there would be bruises or scars in the surrounding areas. There is no material on record to show that the victim had met with an accident at any point of time resulting in the tear of the hymen. Therefore, there is absolutely no reason to disbelief her version that she was sexually assaulted by the appellant by inserting his finger and penis in her vagina. [22.] The learned Legal Aid Counsel has strenuously argued that the appellant was not given an opportunity to examine witness/witnesses in his defence and which could be seen from the limited questions put to him in his examination under Section 313 Cr.P.C. However, from a perusal of the order sheet of the Trial Court, it is seen that when the matter was taken up on 07.07.2023, the appellant on being produced from Judicial Custody stated Page No.# 15/16 before the Court that he did not have any defence witness to be examined. [23.] From the Order Sheet dated 11.04.2023, the appellant was examined under Section 313 Cr.P.C and thereafter, the case was fixed on several dates including 09.05.2023, 23.05.2023 & 06.06.2023 for defence witness but the appellant did not lead any evidence in his defence. As already stated, he informed the Court that he had no evidence to lead in his defence when the matter was fixed on 07.07.2023. Under such circumstance, the submission made by the learned Legal Aid Counsel that no opportunity was given to the appellant to defend himself cannot be accepted. Even if the same was to be considered at this stage, there is no mention in the appeal memo as to who are the witnesses that he wishes to examine in his defence. Therefore, we find no force in the argument advance on his behalf in this regard. [24.] It is a settled law that minor discrepancies in case of an offence of rape can be ignored when the foundational facts are established. The victim in the instant case has consistently narrated what the appellant had done to her and therefore, having regard to the provisions of the POCSO Act, more particularly Sections 7, 9(l)(m) & 6 of the POCSO Act, the appellant under the facts and circumstances of the case in our considered opinion has rightly been convicted by the learned Trial Court. The authority relied upon by the learned Page No.# 16/16 Legal Aid Counsel i.e., Krishnan Kumar Malik vs. State of Haryana, (2011) 7 SCC 130 is also found to be not applicable in the given facts and circumstance of the case. [25.] We, therefore, find no ground to interfere with the impugned judgment & order of conviction and sentence. The appeal is without merit and the same is dismissed. In appreciation of the assistance rendered, Mr. Roshan Subedi, learned Amicus Curiae for respondent No. 2, the Mizoram State Legal Services Authority shall pay him a sum of Rs. 8500/- (Rupees Eight Thousand and Five Hundred) only as his fee. JUDGE JUDGE Comparing Assistant