Page No.# 1/13 GAHC030002772023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRL.A(J)/14/2023 Sh. RM Lalnunhlima Vengthar, Kolasib, Mizoram VERSUS State of Mizoram and Anr. Aizawl2:Smt. Lalzarzov Advocate for the Petitioner : Advocate for the Respondent : P.P./Addl.PP, Mizoram for R1 ::: B E F O R E::: THE HON’BLE MR. JUSTICE NELSON SAILO THE HON’BLE MRS. JUSTICE MARLI VANKUNG Date of Hearing : 29.01.2025 Date of Judgment : 27.02.2025 J U D G M E N T & O R D E R (CAV) (Nelson Sailo, J) Heard Ms. Emily L. Chhangte, learned Amicus Curiae for the appellant, Ms. Mary L. Khiangte, learned Addl. Public Prosecutor for the State and Mr. Lalrokunga Pautu, learned Legal Aid Counsel for the respondent No. 2. Page No.# 2/13 [2.] This is a jail appeal filed by the appellant against the Judgment & Order dated 08.02.2023 and the Order of Sentence passed by the Addl. District & Sessions Judge -cum- Judge, Fast Track Court, Kolasib District in Criminal Trial No. 265/2021 corresponding to S.R No. 26/2021. By the said Judgment & Order, the learned Trial Court convicted the appellant under Section 6 of the POCSO Act and sentenced him to undergo Rigorous Imprisonment for 20 years and to pay a fine of Rs. 20,000/- with a default clause vide Order dated 27.02.2023. Aggrieved with the same, the appellant has filed the instant appeal from jail. [3.] The case of the prosecution in brief is the on 12.09.2021, a written FIR was received from Lalzarzovi, w/o Lalliansanga, r/o Dinthar Veng, Thingdawl stating that her minor daughter aged 11 years was sexually assaulted by the appellant from the date between 02.09.2021 to 05.09.2021 inside their residence during the night time. Accordingly, a case was registered i.e., KLB Police Station Case No. 46/2021 dated 12.09.2021 under Section 6 of the POCSO Act and investigated into. [4.] During the investigation, the case I/O examined the complainant, the victim and other witnesses. The appellant was arrested and sent to Kolasib Hospital for medical examination. The victim was also forwarded to Kolasib Hospital for medical examination. The statements of the complainant, the victim and the appellant were recorded under Section 164 Cr.PC. Upon finding a prima facie case under Section 6 of the POCSO Act to be well established against the appellant, the case I/O submitted the charge sheet. Charge was framed against the appellant by the Trial Court on Page No.# 3/13 23.02.2022 under Section 6 of the POCSO Act and to which, the appellant pleaded not guilty and claimed for trial. During the trial, the prosecution examined 7 prosecution witnesses including the victim while the appellant examined 2 defence witnesses in his defence. The appellant was also examined under Section 313 Cr.PC. Upon conclusion of the trial and after hearing the parties, the learned Trial Court passed the impugned Judgment & Order of conviction and the Order of Sentence against the appellant in the manner as already stated herein above. [5.] Ms. Emily L. Chhangte, learned Amicus Curiae submits that there are inconsistencies in the evidence led by the prosecution witnesses including the victim. The version of the prosecutrix before the trial and during the trial are also not consistent. In view of such inconsistencies and lack of corroboration of the version of the victim, the conviction and sentence of the appellant cannot be sustained and should be set aside. She further submits that the doctor who examined the victim was not examined during the trial by the prosecution. Therefore, merely exhibiting the Medical Examination Report without examining the doctor who had prepared the same cannot be the basis for convicting the appellant since the said document has not been proved. She submits that in order to accept the version of the victim, her version should be cogent, reliable and should inspire confidence. The victim as a witness should be in a position to withstand the cross-examination of any length and under no circumstance should there be any room for any doubt as to the factum of the occurrence. However, since there are discrepancies in the evidence led by the Page No.# 4/13 prosecution including the victim herself, the prosecution has not been able to discharge the burden of proving the case against the appellant with proof beyond reasonable doubt. Therefore, the impugned Judgment & Order of conviction and the Order of Sentence should be set aside and the appellant be acquitted of the charge. In support of her submissions, the learned Amicus Curiae relies upon the following authorities:- (1) Rai Sandeep @ Deepu Vs. State (NCT of Delhi) (2012) 8 SCC 21 and (2) Judgment & Order of this Court dated 20.11.2024 passed in Criminal Appeal (J) No. 2/2024 (Sh. Laldingluaia Vs. State of Mizoram & Anr.) [6.] Per contra, Ms. Mary L. Khiangte, learned Addl. Public Prosecutor submits that the victim was examined as PW-4 and that her statements have been duly corroborated by the case I/O, who was examined as PW-7. She submits that although the doctor who conducted the medical examination of the victim may not have been examined during the trial but the Medical Report of the doctor was exhibited by the case I/O. In absence of any dispute or denial from the defence, the same can be accepted as a reliable material to convict the appellant. She also submits that the version of the victim is reliable and trustworthy and the fact that the appellant having committed the crime can be appreciated from the facts and circumstances leading to the crime as narrated by the prosecution witnesses. She therefore submits that the appellant has been rightly convicted and sentenced by the learned Trial Court and the same may not be interfered with by this Court. In support of her submission, she Page No.# 5/13 relies upon the case of Phool Singh Vs. State of Madhya Pradesh (2022) 2 SCC 74. [7.] Mr. Lalrokunga Pautu, learned Legal Aid Counsel for the respondent No. 2 adopts the arguments made by the learned Addl. Public Prosecutor and submits that the Trial Court has rightly convicted and sentenced the appellant and for which, no interference is called for by this Court. [8.] We have heard the submissions made by the learned counsels for the rival parties and we have perused the materials available on record. In order to find out as to whether the prosecution has been able to establish their case against the appellant, the evidence led by the parties may be examined. [9.] PW-1, who is the complainant and mother of the victim in her examination-in- chief stated that the appellant was working in their under construction house at Thingdawl, Dinthar Veng and he was staying with them during the period 02.09.2021 to 05.09.2021. That on the night of 11.09.2021, they came to learn from their minor daughter that the appellant used to remove her panty at night and sexually assault her by touching her private part in the sitting room where she used to sleep. They also came to learn that the appellant threatened her with dire consequences. She therefore lodged a FIR at Kolasib Police Station on 12.09.2021. In her cross- examination, she stated that her husband is blind since the year 2020 and that they earned their living by making local liquor. The appellant who was employed by them stayed in their house. She also stated that it was a fact that she had an affair with the appellant and that they used to sleep together and have sex. She stated that she did Page No.# 6/13 not know whether her daughter used to kiss the appellant on his cheek while going to tuition and that she did not see the incident as she was inside their bedroom at that time. [10.] PW-2 is the maternal grand-mother of the victim and in her examination-in- chief, she stated that the appellant used to stay with them and he used to sleep in the sofa in the sitting room. She also stated that her two (2) granddaughters including the victim also used to sleep on the floor in the sitting room. She saw the appellant sleeping in between her two (2) granddaughters while she went out early in the morning to answer nature’s call. She suspected him of sexually assaulting her granddaughters and she informed the matter to her daughter i.e., the mother of the victim. In her cross-examination, PW-2 stated that she merely suspected the appellant of having committed the alleged crime. [11.] PW-3 is the cousin of the victim who used to sleep on the floor with the victim. In her examination-in-chief, she stated that she has been staying with the family of the victim for more than one (1) year and before she stayed with them, the appellant was already staying in the house of her aunty. She stated that one night while she and the victim were sleeping on the floor in the sitting room, the appellant came besides them and touched the cheek of the victim. She saw him doing this as she was browsing on her mobile phone. She stated that whenever she turns towards the appellant, he pretended not to touch her. The victim was also awake and at one Page No.# 7/13 point of time, she threw away the hand of the appellant but the appellant repeatedly touched and caressed the victim. She stated that the appellant used to do these things on different night and sometimes, he even used to switched off lights. However, the appellant did not touch her and they did not inform about the incident to others as they were afraid of being scolded. In her cross-examination, PW-3 stated that she does not know whether the appellant and the mother of the victim were having an affair or not and that she did not see the appellant committing the alleged offense on the victim. [12.] The victim was examined as PW-4 during the trial and in her examination-in- chief, she stated that she knows the appellant who was present in the Court. He used to stay with them as a laborer. While he was with them, he used to sleep in the sofa in the sitting room while she and her cousin sister (PW-3) who stayed with them used to sleep together on the floor in the sitting room. That while she and PW-3 were sleeping together, the appellant shifted from the sofa and slept with them. He then touched her breast and vagina. He did this to her several times and he also inserted his penis inside her vagina. The appellant threatened her not to inform the matter to anybody and therefore, she did not tell her parents about the incident. She also stated that she did not remember the exact date of the incident. In her cross-examination, PW-4 stated that the appellant has been living with them for quite some time and that neither her mother nor her grandmother tutored her to make the statements that she had made. Page No.# 8/13 [13.] PW-5 and PW-6 are the seizure witnesses who stated that on 12.09.2021, the police had seized the Birth Certificate of the victim and they had witnessed the same. [14.] PW-7 is the case I/O and in his examination-in-chief, he stated that he was posted at Kolasib Police Station since June, 2019 till February, 2022 and currently, he was posted at Vairengte Police Station. He stated that on 12.09.2021 at around 08:15 AM, a written FIR was received from PW-1 stating that her minor daughter was sexually assaulted by the appellant in between 02.09.2021 to 05.09.2021 inside their residence during the night time. A case was therefore registered under Section 6 of the POCSO Act and he was endorsed to investigate the case. During the investigation, he had visited the place of occurrence and examined the complainant and the witnesses. He arrested the appellant on 12.09.2021 in the presence of seizure witnesses and the mother was given the intimation. On interrogating the appellant, he admitted of having sexually assaulted the victim. He however stated that he was too drunk at the time of the incident and did not know whether he actually penetrated his penis inside the private part of the victim or not. The appellant and the victim were both sent to the Medical Officer in the District Hospital, Kolasib for medical examination. The medical examination of the victim revealed that her hymen was torn and there was small laceration at the fourchette. Medical examination of the appellant also revealed that he was mentally and physically fit and his genital organ was well developed. Intimation of the incident was sent to the Chairman, CWC, Kolasib and he seized a photo copy of the Birth Certificate of the victim in the presence of witnesses. Page No.# 9/13 He also sent the appellant before the CJM, Kolasib for recording his confessional statement. Likewise, he also sent the victim for recording of her judicial statement. Having found a prima facie case under Section 6 of the POCSO Act to be well established, he therefore filed the charge sheet before the Court. PW-7 exhibited the charge sheet, seizure memo, photo copy of the Birth Certificate, arrest memo, statements of the victim, statements of the complainant, confessional statement of the appellant, Medical Examination Report of the victim and the appellant as Exhibit P-II to P-XI. [15.] PW-7 in his cross-examination stated that the parents of the victim used to earn their living by selling liquor. That he was not sure as to whether the appellant and the mother of the victim had a love affair. He also stated that his investigation revealed that the victim was sexually assaulted by the appellant but he was drunk at the time and he did not know whether he had sexually assaulted the victim or not. [16.] The appellant in his defence examined two (2) defense witnesses. DW-1 in his examination-in-chief stated that he was the childhood friend of the appellant and he knew the family of the appellant as well as the victim well and that the accusation made against the appellant was false. He stated that the appellant loved the victim as his own daughter and would never do any such thing as alleged. The allegation made against him was therefore false and it was due to complicated relationship with the victim’s mother. In his cross-examination, he stated the he was at Kolasib in between 2nd to 5th September, 2021 and did not believe the allegation made against the Page No.# 10/13 appellant to be true. [17.] DW-2 in his examination-in-chief made similar statements like that of DW-1. In his cross-examination, he stated that during 2nd to 5th September, 2021, he was at Kolasib and he has no knowledge of what had happened in the residence of PW-1 at Dinthar Veng, Thingdawl. He also stated that he cannot say as to whether the appellant had any involvement in the matter or not. [18.] It may be noticed that both the victim and PW-3 used to sleep together on the floor of the sitting room of the house while the appellant used to sleep on the sofa. The appellant was staying in the house of the victim and her family as a worker/laborer. According to PW-4, who is the victim, the appellant shifted himself from the sofa where he was sleeping and slept besides her and PW-3 on the floor. He then touched the victim on her breast and vagina several times and he inserted his penis in her vagina. He also threatened her not to inform the matter to anyone and therefore, she did not tell her parents about the incident. [19.] PW-3, who was sleeping with PW-4 on the floor of the sitting room, stated that one night while she and the victim were sleeping, the appellant came besides them and touched the cheek of the victim. That whenever she turned towards him, the appellant pretended not to touch the victim. She noticed that the victim was awake and threw away (moved away) the hand of the appellant but the appellant repeatedly touched and caressed the victim. She also stated that the appellant did such things many times on different nights and sometimes, he even used to switch off Page No.# 11/13 the light. Both PW-3 and PW-4 stated that they did not inform about the incident to others. [20.] The incident came to light when PW-2 noticed the appellant sleeping between her two (2) grand-daughters i.e., PW-3 & PW-4. She then informed PW-1 who stated in her examination-in-chief that they had come to learn from their minor daughter (the victim) that the appellant used to remove her panty at night and touch her vagina while she was sleeping in the sitting room. She also learned that the appellant had threatened her with dire consequences. The narration of PW-3, PW-4 and PW-1 are only with a slight variance. While PW-4 stated that the appellant touched her breast and vagina and inserted his penis insider her vagina but PW-1 only stated that the appellant used to remove the panty of the victim at night and sexually assaulted her by touching her private parts. However, in the statements of the victim, PW-3 and PW-1 recorded under Section 164 Cr.PC, the victim had made a similar narration like what she had stated during the trial. Similarly, PW-3 also made similar statements during the trial as well as in her statements recorded under Section 164 Cr.PC. [21.] The Apex Court in Phool Singh (supra) in the given facts and circumstances of that case held that there can be conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished and her evidence is of sterling quality. As a general rule, if credible, conviction of the accused can be based on sole testimony, without Page No.# 12/13 corroboration. Sole testimony of the prosecutrix should not be doubted by the Court merely on the basis of assumptions and surmises. The testimony of the victim is vital and unless there are compelling reasons which necessitate looking for corroboration of her statements, the Courts should find no difficulty to act on the testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Further, seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. [22.] In the present case, the victim before the trial and during the trial maintained that she was raped by the appellant who was also sleeping in the Sitting Room. Her statements is corroborated by the statements of the PW-1 and PW-3. The medical report which was exhibited by the case IO also reveals that the hymen of the victim is torn and there was small laceration at the fourchette. The same was exhibited without any objection for any quarter. There is also no objection raised with regard to the age of the victim. The Birth Certificate which was exhibited as exhibit P - IV shows that the victim was born on 02.10.2010 and the incident happened sometime between 02.02.2021 and 05.09.2021. Therefore, the victim was admittedly below twelve (12) years of age. [23.] The appellant in his appeal filed from Jail although denied of having committed the crime by saying that he has been wrongly implicated, but however, he has concluded his appeal by praying for leniency and for reduction of the sentence. Page No.# 13/13 We have noticed that the version of the victim is consistent before and during trial and also in her statements recorded under Section 164 Cr.PC. Her version has also not been shaken during her cross-examination. Under the facts and circumstances, we have no reason to doubt the truthfulness of her version that the appellant had committed rape upon her. We therefore find no merit in the appeal and the same is accordingly dismissed. [24.] In appreciation of the assistance rendered by the learned Amicus Curiae, she shall be given a fee of Rs. 8500/- by the Mizoram State Legal Service Authority. The fee of the Legal Aid Counsel shall be given as per the prescribed norms. JUDGE JUDGE Comparing Assistant