Page No.# 1/16 GAHC030000272025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) CRIMINAL APPEAL (J) NO.1 OF 2025 Sh. Joseph Lalhmangaiha, Son of Vanlalhlima (L), Resident of New Chalrang, PA: Dawrpui South, Holy Cross bakery, Opposite, Aizawl, Aizawl District, Mizoram. ....Appellant -Versus- 1. The State of Mizoram, Aizawl. 2. Sh. Lalhmangaihzuala, Son of Lalduhliana, Resident of Chandmary West, Aizawl. ....Respondents – B E F O R E – HON’BLE THE CHIEF JUSTICE MR. ASHUTOSH KUMAR HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA For the Appellant(s) : Mr. Jonathan L. Sailo, Amicus Curiae. For the Respondent(s) : Ms. Venneihsiami, Additional Public Prosecutor, Mizoram for respondent No.1. : Ms. Emily L. Chhangte, Legal Aid Counsel for respondent No.2. Date of Hearing : 03.11.2025. Date of Judgment : 03.11.2025. Page No.# 2/16 J UDGMENT & O RDER ( O RAL) (Ashutosh Kumar, CJ) We have heard Mr. Jonathan L. Sailo, the learned Amicus on behalf of the appellant in this Jail Appeal and Ms. Venneihsiami, Additional Public Prosecutor, Mizoram for respondent No.1. Ms. Emily L. Chhangte, learned Legal Aid Counsel has also been heard on behalf of the respondent No.2, i.e. the informant on this case. 2. The appellant has been convicted under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter to be referred as the “POCSO Act, 2012”) vide judgment dated 30.09.2024 passed in Sessions case No.27/2023 arising out of Crl. T.R. Case No.633/2023 under Section 6 of the POCSO Act, 2012 read with Section 376AB of the Indian Penal Code and, on the same day, has been sentenced to undergo rigorous imprisonment for a term of 20(twenty) years with the stipulation that the period of his detention in judicial custody as an Under Trial Prisoner (UTP) would be set off from the terms of sentence as provided under Section 428 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as “Cr.PC, 1973”). 3. The appellant has been charged of having raped his 2(two) step-daughters, one being 11 years old and the other 7 years old. The FIR was lodged by the own uncle of the victims on 20.01.2023 alleging that in the night of 23.12.2022, his younger brother’s daughter “X”, who was 11 years old, was raped by her step-father, i.e. the appellant, at his residence in Dawrpui West. He also expressed his belief that perhaps the appellant had sexual relationship with his younger niece “Y”, a 7 year old Page No.# 3/16 girl before July, 2022. He, therefore, requested the Officer-in-Charge of All Women Police Station, Aizawl to take necessary action and bring the guilty to the book. Based on the afore-noted written report, the FIR was lodged and the investigation proceeded. 4. During the course of investigation, the appellant was arrested, the statements of the victims were recorded and they were sent for medical examination. Finding the charge to be correct, the appellant was sent up for trial. 5. The Trial Court, after having examined 12(twelve) witnesses on behalf of the prosecution and none on behalf of the defense, convicted the appellant, as aforesaid, under Section 6 of the POCSO Act, 2012 and sentenced him to undergo Rigorous Imprisonment for 20(twenty) years. 6. While assailing the judgment & order of conviction and sentence, Mr. Sailo, learned Amicus has argued that the Trial Court adopted a shortcut approach in accepting the evidence of the witnesses without application of mind. He has further submitted that the basic cannons of appreciating the evidence have been thrown to the winds by the Trial Court and the judgment of guilt arrived at is against overwhelming evidence. In order to buttress the afore-noted submissions, the learned Amicus has submitted that for weird reasoning, the Trial Court did not accord any hearing to the appellant on question of sentence as mandated under Section 235(2) of the Cr.PC, 1973. That apart, it has been argued that while recording the Page No.# 4/16 statement of the witnesses, especially the minor victims, no attempt was made by the Trial Court to ascertain the mental capabilities of the victims of deposing correctly as to what had happened to them, thereby seriously prejudicing the case of the appellant. Important witnesses, like the mother of the victims; the Doctor, who conducted physical examinations on the victims; the Judicial Officer, who had recorded the statements of the victims under Section 164 of the Cr.PC were not examined. Lastly, it has been submitted that all the incriminating circumstances against the appellant, as culled out from the evidence collected at the trial, were not put to the appellant during his examination under Section 313 of the Cr.PC. 7. Lalhmangaihzuala (PW-1), in his deposition before the Court though categorically stated that his two nieces, who were the daughters of his younger brother, born out of his wedlock with Andy Lalramliani, were raped by the appellant but candidly admitted that such information was based on what his sister [Emmie Lalengzami (PW-4)] had told him about the occurrence. In his examination-in-chief, PW-1 has asserted that the mother of the victims married the appellant on the same day of her divorce with the father of the victims. Thereafter, the two victims started living with the appellant. The appellant was a poor person and, therefore, his sister [Emmie Lalengzami (PW-4)] had taken upon herself to look after the younger daughter. This decision was taken also for the reason that she did not have a daughter of her own. PW-4 took good care of the children. Since the younger of the nieces (one of the victims) was very Page No.# 5/16 young, she was always given bath by PW-4 and during one such exercise, she found something unusual in her private parts, sending her doubting whether she was physically abused. When she questioned the victim, the victim initially was reluctant to divulge anything as if she was scared or was asked not to divulge any secrete. On further probe by PW- 4, she broke down and revealed that the appellant used to touch her private parts but such an incident had occurred before the Christmas in the year 2022. PW-4 told PW-1 that she also learnt from “Y” that the appellant used to touch “Y” also inappropriately. All these facts came to be known by PW-4 sometimes before Christmas of 2022. Since the appellant and the mother of the victims were spending Christmas somewhere else, the family, namely, PW-4 and PW-1, decided to wait for a while. The mother of the victim was later confronted with such disclosure of the victims but her response was non-committal. PW-4 was also told by “X” that she was also, on several occasions, inappropriately touched. Both PW-4 and PW-1 could gather that the mother of the victims was not very forthcoming in taking any action against her husband (appellant), so a decision was taken to bring “X” also to the house of PW- 4. All these facts were disclosed to PW-1 and a conscious decision was taken by the family to lodge an FIR against the appellant at All Women Police Station, Aizawl on 20.01.2023. He has also deposed before the Trial Court that the Child Welfare Committee took the victims to the Child Home. An attempt was made by the appellant and his mother to Page No.# 6/16 have the case compounded, seeking forgiveness. 8. During cross-examination, PW-1 very fairly admitted that he had no idea about the medical report nor did he make any attempt to himself probe the victims to ascertain the truth. In fact, the victims did not disclose anything to him and his information was only based on the disclosure made by his sister (PW-4). It was for the first time that PW-4, according to the PW-1, learnt that “Y” could have been abused physically when she had noticed something unusual while giving her a bath. He denied that there was any personal grudge between the appellant and his family. The deposition of the victims, who have been examined as PW- 2 and PW-3, respectively, revealed much more that what meets the eye. Both of them have referred to the physical encounters which they had suffered at the hands of their step-father (the appellant) but both of them did not say anything to suggest that they were scared to reveal any information to anybody outside the family. All that they have said is that they were asked not to divulge anything and that they obeyed. It was only on enquiry and persistent probe by PW-4 that such facts were revealed. 9. The sequence of events narrated by both the victims are surprisingly very similar. Both of them have also stated that the appellant adored them and never scolded or physically assaulted them. In fact, their statements disclosed that their step-father and biological mother had good marital relationship. Both of them have denied that any part of their statement before the Court was on the tutoring by their mother. Some Page No.# 7/16 insignificant details which were asked of them were not answered. Both of them denied that they had deposed falsely before the Trial Court. 10. PW-4, about whom it has been discussed earlier that it was her information which made PW-1 lodge the FIR, in her cross-examination stated that she did not know the appellant; neither was she aware of the reason of divorce between the appellant and the mother of the victims. It was she who disclosed before the Trial Court during cross-examination that the mother of the victims married the same night to the appellant after her divorce. She did not have any idea as to when the victims were born but she admitted that the victim “Y” stayed and lived with her since July, 2022, whereas the victim “X” lived with her mother and step-father. 11. Another startling fact revealed by PW-4 was that the victim “Y” was brought to her home on the asking of the mother of the victims and that it was primarily because of the straitened financial circumstances of the appellant and the mother of the victims. In fact, the mother of the victims wanted to put victim “Y” at a Special Care Home. There is no disclosure of her about the whereabouts of the biological father of the victims – whether he is alive or dead and whether he was also approached for filing the case against the appellant. There is yet another fact which ought not to escape our notice, namely, it was not while PW-4 was trying to help “Y” take bath that she discovered something unusual about her private parts but it was only on the prodding of the house-maid who had detected such abnormality in the physiognomy of the of the victim “Y”. When the house-maid pointed out something unusual, the victim “Y” was taken to a Doctor at Seventh Page No.# 8/16 Day Hospital, Aizawl but PW-4 has not stated anything about the opinion of the Doctor who had examined her nor any report has been brought on record. That Doctor also has not been examined at the trial. She concluded her evidence by stating that the first information about such unusual sight of the body part of the victim “Y” was noticed by the house-maid. But the house-maid surprisingly has neither been cited as a prosecution witness nor examined at the trial. 12. C. Vanlalrimawii (PW-5) and C. Lalrintluangi (PW-6), the Superintendent of CPD Transitional-cum-Children’s Home and a Case Worker in CPD Transitional-cum-Children’s Home, respectively, have not offered anything substantial or important in their depositions before the Trial Court, except that the victims were admitted in the CPD Transitional- cum-Children’s Home and were residing there. Since they were young girls, both PW-5 and PW-6, tried to enquire at their level whether they were actually sexually assaulted by the appellant. They claimed to have been told by the victims that they had been physically abused. 13. Charlie Lallawmzuala (PW-7) had accompanied PW-1 along with others to the Police Station for lodging the FIR. In her presence, the original Birth Certificates of both of the victims were taken possession of by the police and she stood as a witness to the afore-noted seizure. She but did not remember the exact date of birth of the victims. In fact, she is no stranger but related to the victims through her husband’s side. 14. Similar statement has been made by Darrochami (PW-8). 15. This now takes us to the deposition of the Investigating Officer (PW-12), who, in his examination-in-chief has stated that during the course Page No.# 9/16 of his investigation, he had visited the place of occurrence; had drawn the sketch-map of the same; had examined the complainant, both the victims and 5(five) prosecution witnesses. The victims were examined by him at the Police Station only but he took care to be in his civil dress while examining the victims. He gave intimation regarding the same to the Chairman of CWC, Aizawl and the Special Judge, POCSO. According to him, both the victims were medically examined by a Medical Officer in the Department of Obstetrics and Gynecology at Civil Hospital, Aizawl on 20.01.2023 at different times, the reports of which had been exhibited in the evidence. Both the victims were made to give their statements under Section 164 Cr.PC on 25.01.2023 which was recorded by a Judicial Magistrate, First Class, Aizawl District Court, namely, Smt. Julie Lalhlupuii, who too has not been examined. According to PW-12, the appellant was arrested on 20.01.2023 and was produced before the Medical Officer for his medical examination, which report also is stated to have been exhibited (Exhibit P- 5). On cross-examination, the Investigating Officer claims to have arrested the appellant in the Police Station. No attempt was made by him, he admitted, about arraigning the mother of the victims as a prosecution witness. At the time of lodging of the FIR and also during his investigations, the victims were residing in CPD Home. No attempt was made to subject the victims to any psychiatric examination for ascertaining their mental health. He did not find any past history of such sexual misdemeanor by the appellant. Page No.# 10/16 16. From a conspectus of the evidence collected at the trial, few facts appear to the fore, which have to be noticed in sequence. They are – (a) The mother of the victims had not come forward either during the course of investigation or during the trial to give her version. This may be understandable for the reason that her present husband was being prosecuted with whom she had married on the same day of her divorce with her earlier husband, who was the father of the victims and with whom she was having good relations; (b) The house-maid of PW-4 was the first person to notice some abnormality on the person of “Y”, which actually led PW-4 to probe further from “Y”; where after the disclosure was made that she was inappropriately touched on one occasion by the appellant. The house-maid has not been questioned by the Investigating Officer (PW-12) nor has she been cited as a witness; (c) Prior to the lodging of the case, victim “Y” was taken to a local lady Doctor and there is nothing on record to indicate as to her observations that there was some evidence of physical abuse of the victim. Though the name of the Doctor was known to PW-4, which she had disclosed in her cross-examination but no effort was taken by the Investigator to have her examined at the trial or to question her during the course of the investigation; (d) The victims were admittedly not in the parental house or in the house of the PW-4. They were, at the time of investigation, which Page No.# 11/16 was shortly after the FIR was lodged, living in the Children’s Home. This raises some doubt about the genuineness of PW-4, who claimed to have brought “Y” on the asking of her mother to her home and one of the reasons was that the mother of the victim was poor and the other reason was that she did not have a child of her own. What would have happened then for her to agree to send “Y” or for that matter “X” to the Children’s Home? (e) As noted above, no attempt was made by the Investigator (PW-12) or PWs-1 & 4 to disclose the whereabouts of the biological father of the victims. Whether he is dead or alive is also not known. Had he been dead, PW-4 while talking about the divorce, would have stated so. 17. This, therefore, brings us to the question whether the victims were minors. There is no specific finding of the Trial Court for the reason that their date of birth certificates were seized and exhibited. Such seizure was from which place also remains unknown. 18. We have already noted that neither the Doctor nor the Judicial Officer, who recorded the 164 Cr.PC statements of the victims were examined at the trial. 19. The reports by the Doctor are absolutely perfunctory. It appears that the Doctor only looked for the condition of the hymen which is no determinative factor for coming to any specific conclusion regarding physical abuse. The hymen of “X” was not intact, whereas the Page No.# 12/16 hymen of “Y” was found to be intact. What does all this lead to? 20. The question would arise whether the victims were narrating the truth or were tutored by the mother? 21. They could not have been tutored by the mother because the mother never chose to stand up against the appellant. Did they then toe the line of PW-1 and PW-4? Nothing can be said conclusively as there is no evidence on record to indicate any bad blood between PW-4 and PW-1 on one side and the appellant and the mother of the victims on the other. 22. In such a scenario, whether it would be imprudent to discard the evidence of the two victims, who (though there is no evidence of either the Doctor or the Trial Court or the Investigator of their stable mental faculties to depose when they had spoken about the appellant having inappropriately touched them) supported the allegation. Though there is some discrepancy in their statements but those discrepant statements do not go to the root of the allegation. What is surprising to us is that at every time, both the victims unequivocally spoke about the good conduct and behaviour of the appellant towards them. 23. Was the appellant playing "Dr. Jekyll and Mr. Hyde"? 24. We have no idea. 25. Under such circumstances, we would be constrained to look for other indices/evidence to test the correctness of the prosecution version. We have been extra cautious in assessing the evidence for the reason of the consistency of the statement of the victims, who do not Page No.# 13/16 appear to be tutored in any particular way. Though they have alleged physical abuse at the hands of the appellant but both of them did not have anything to complain against his behaviour towards them. It was a happy family where the mother of the victims also was treated well. 26. The arrest of the appellant in the Police Station is also rather surprising. 27. Did he accompany the victims to the Police Station? 28. Was he asked by the Investigator to come to the Police Station for interrogation? 29. Nothing is known because of the taciturn statement of PW-12 and almost near mechanical recording of the evidence by the Trial Court, who perhaps was under the impression that he was only an umpire, recording evidence as it came and not behaved or judged robustly by looking for evidence in a pro-active manner. 30. There is yet another aspect which is not explicable to us, which is that though the appellant was arrested in the Police Station and was also sent for medical examination, but no forensics were applied. No effort was made to go for any DNA test of the appellant. 31. Section 53A of the Cr.PC, which was inserted in the Code in the year 2005, is not to be understood as a mere formality. Without collecting the evidence, which could have been used for forensic testing, such medical examination was of no use. It would have otherwise provided corroborative evidence connecting the crime with the criminal. Doing no further than putting the victim to medical examination in accordance Page No.# 14/16 with Section 53A of the Cr.PC thus left the investigation absolutely deficient, forcing us to look at the evidence with a different lens. This has left a complete evidentiary vacuum in the case which is a serious investigation lapse. 32. Coming now to the statement of the appellant under Section 313 of the Cr.PC, only 4(four) questions were put to him, namely, (i) what was his age; (ii) whether he had sexually assaulted the victims; (iii) whether such sexual assault was made when the mother of the victims was away, and (iv) whether he had threatened the victims of dire consequences in case the misdemeanor was reported. There were certain other circumstances, which were required to be put to the appellant, like whether he married the mother of the victims on the same day when she was divorced to ascertain that the mother did not have any qualms of leaving her earlier husband; whether he had agreed, despite his penury, to keep the victims in his house; whether the younger of the victims was sent to the Children’s Home on the asking of the mother and when did “X” left his house for Children’s Home? 33. These were important facts which would have revealed circumstances for coming to a definitive conclusion about the guilt of the appellant, about which the only evidence today is the statements of the 2(two) victims, the step-daughters of the appellant. 34. We are conscious of the fact that the statements of the victims are not to be discarded lightly because it assumes the character of the testimony of the injured. A child witness cannot be taken as an Page No.# 15/16 accomplice. They are the victims of the crime. Even though the victims are of tender age, but their statements can be the basis for conviction if it is found to be credible and confidence inspiring. 35. It is not easy for a girl of any age to allege physical abuse by her father/step-father. 36. The situation may have been compelling. This read with the caution under Section 29 of the POCSO Act, 2012, which raises a presumption against the wrongdoer, unless the contrary is proved, makes us again wary of discarding the prosecution case altogether. 37. The Trial Court surprisingly has ignored the specific mandate under Section 235(2) of the Cr.PC, which makes it compulsory for the Trial Judge to accord separate hearing, unless he is proceeding in accordance with the provisions of Section 360 of the Cr.PC, to the accused on the question of sentence and then only pass sentence on him according to law. 38. This also is not an idle formality. It is a humanitarian concept for looking at whether and what sentence would fit the crime and the criminal; whether it would be meaningful to convict and sentence him in a particular way. The defect of no hearing on sentence even though minimum sentence has been provided, is not a curable defect. The circumstances of mitigation; the background of the accused; his age; the family situation; financial circumstances; the possibility of reform are all aspects which have remained untested because of the approach of the Trial Court in giving a short-shrift to the established procedure of law of giving a hearing on sentence before pronouncing the sentence. Page No.# 16/16 39. On these issues, we set aside the conviction and sentence of the appellant and remand the matter to the Trial Court for recording the evidence of the mother of the victims and other witnesses, who might be necessary for unraveling the truth and thereafter, to put all the incriminating circumstances to the appellant under Section 313 of the Cr.PC and give an opportunity to him to argue on the sentence and also to record the evidence in defence, if so desired. 40. This exercise is directed to be completed by the Trial Court within a period of 6(six) months positively. 41. The appeal stands allowed to the extent indicated above. 42. The Trial Court records be sent forthwith. 43. Mr. Jonathan L. Sailo, learned Amicus and Ms. Emily L. Chhangte, learned Legal Aid Counsel representing the respondent No.2 have rendered their valuable assistance and they may be paid their fee in accordance with the Rules. JUDGE CHIEF JUSTICE Comparing Assistant