IN THE COURT OF SPECIAL JUDGE, PROTECTION OF CHILDREN FROM SEXUAL OFFENCE ACT (POCSO) MIZORAM, AIZAWL

Transcription

1 1 IN THE COURT OF SPECIAL JUDGE, PROTECTION OF CHILDREN FROM SEXUAL OFFENCE ACT (POCSO) MIZORAM, AIZAWL BEFORE Mrs. Lucy Lalrinthari Special Judge, POCSO Act Aizawl Judicial District, Aizawl SC. No.56 of 2015 Criminal Trial No.503/2015 u/s8 of POCSO Act,2012 Ref: W.PhailengPS C/No.1/15 dt State of Mizoram Vrs RodinglianaS/o Samuela (L) of HaleluiVeng, W.Phaileng - Accused PRESENT For the Prosecution : Mrs.K.Lalremruati,Ld.Spl.P.P. For the Accused : Mr.C.Zoramchhana,Ld.Counsel. Date of Hearing : Date of Judgment : JUDGMENT & ORDER 1. The prosecution story of the case is that on 8 th Jan. 2015PC.Lalramthara S/o Ringliana, W.Phaileng, Halleluiveng lodged First Information Report to the Offficer-in-Charge of West Phaileng Police Station stating that on (Thursday) at about 2:00 pm one Page 1 of 9

2 2 Rodingliana of W.Phaileng, Halleluiveng had sexually assaulted his daughterx 15 yrs at their residence to dishonor her modesty. He forcibly grabbed her breast and also kissed her lip. Hence, W.Phaileng-PS C/No. 1/15 dt u/s 354-A IPC R/w 8 of POCSO Act was registered against the suspected accused Rodingliana. 2. During the course of investigation, the complainant PC.Lalramthara 42 yrs S/o Ringliana, W.Phaileng, Halleluivengwasthoroughly examined and recorded his statement. The place of occurrence i.e, residence of complainant was also visited and drawn a rough sketch map. The statement of the minor victim Vanhmingliani 15 yrs D/o PC.Lalramthara was carefully recorded as well as the statement of witnesses namely (I) Lalrinpuii 43 yrs (mother of the victim) and (II) Lallawmawmi 18 yrs (sister of the victim). On , the victim Vanhmingliani was forwarded to the Chief Judicial Magistrate, Mamit Court with a prayer for record of her statement as required by section 164 IPC. Her statement was recorded by Julie Lalrinzami, Judicial Magistrate, 1 st Class, Mamit Court which corroborated her statement made before police. Therefore, it has been ascertained from investigation that on at about 2:00 pm while the victim Vanhmingliani was alone at their house in the bedroom, the suspected accused Rodingliana 19 yrs S/o Samuel-a (L), W.Phaileng, HalleluiVeng entered in the bedroom and came to her. On entering, he then sexually assaulted her by touching her breast and kissing her lip in order to outrage her modesty. While they were struggling, the victims mother Lalrinpuii came inside the room and stopped the accused from his shameful doing. 3. On , the suspected accused Rodingliana was arrested after informing him the ground of his arrest. He was thoroughly interrogated and he admitted his guilt in the case. On , he was forwarded to the Chief Judicial Magistrate, Mamit Court with a prayer for judicial remand. 4. Therefore, from the above mentioned investigation and circumstances, a prima facie case under sections 354-A IPC R/w 8 of POCSO Act are found well established against the accused Rodingliana 19 yrs S/o Samuel-a (L), W.Phaileng, Halleluiveng. Hence, case I/O submitted charge-sheet against accused Rodingliana. 5. As per procedure u/s 207/208 of Cr.P.C., all the police reports and its connected documents were furnished to the accused. The accused being a poor villager, having no Page 2 of 9

3 3 regular income and being a scheduled tribe, Advocate C.Zramchhana is appointed to defend the accused u/s 304 Cr.P.C. 6. The Ld. Spl. P.P. Mrs.K.Lalremruati opened her case and stated that the prosecution established a strong prima facie- case against the accused and there is sufficient ground to frame charge u/s 8 of POCSO Act Also heard the Ld. Counsel for the accused Mr. C.Zoramchhana, who mildly objected to framing of charge. After hearing both parties this court found there is sufficient reason to proceed with the case. So charge u/s 8 of POCSO Act 2012 has been framed, read over to the accused in the language known to him, to which the accused pleaded not guilty and claimed for trial. 7. Trial proceeds. In order to bring home the charge against the accused the prosecution examined the following PWs before the court. 8. PW No.1 PC. Lalramtharaidentified the accused Rodingliana, who is also hailing from their village, West Phaileng and he stated that he is a daily labourer and hehas three children. The victim is the middle one and she is about 15 years old. On he went to work at their neighbor s house and at about 5:00PM he returned home. When he returned home his wife informed him that while he was away at work, she attended functions of memorial stone of death persons being performed in the neigbourhood. She left the victim alone at home and when she came back she called for the victim but she did not reply. She look for her and she found the victim and the accused at their bedroom and she show the accused was being pushed away by her daughter and she enquired what was going on the victim informed her that the accused tried to sexually assaulted her by touching her breast and kiss her, she could not shout as the accused strangled her on the neck. The victim was still crying and when he asked her about the incident she could not make any reply to him. And so he decided to go to the police and report the matter, he, on the same night they went to West Phaileng police station and submitted FIR.Exbt-P-1 is the FIR submitted by him and Exbt-P-1-A is his signature. On Cross-examination PW No.1 stated that he was not present at the PO when the incident happened. Whatever hehas stated above was what was told to him by his wife and hehas no receive any information directly from his daughter.as far as he know he did not find any marks of violence/assault on the body of his daughter when he went home on the day of incident.he also did not receive any statement/confession admitting his guilt regarding the incident from the accused. It is not a fact that Exbt-P-1 is false and Exbt-P-1-A is not his signature. 9. PW No.2 Victim (X)identified the accused and stated that on her father was working away from home and her mother attended a ceremony of erecting stone for death person in the neighborhood. Her elder sister had gone to carry water from the water point. At that time, accused Rodingliana had come to their house and asked her elder sister to carry water from the water point. She thought Rodingliana had gone to the water point with her elder sister. Her elder sister asked her to clean the bedroom and bathroom. Their bed room is in the upper storey of her house and the kitchen is in the down floor. She went up to the upper storey and entered into her bedroom to clean the bedroom. The accused Rodingliana immediately entered the bedroom and sexually assaulted her by touching Page 3 of 9

4 4 herbreast and kissing her on her lips. She resisted and do not want to have any sexual relation with him. But he strangled her throat and she could not breathe. At the same time the accused Rodingliana told her if she did not surrender to his sexual desire he would make public and her reputation would suffer. However, she gathered her strength and kicked him with her leg. Luckily her mother came home and called for her then the accused stop assaulting her. She then narrated the whole incident to her mother. Her mother scolded the accused and the accused begged the forgiveness of her mother. However, her mother replied that they will discuss the matter in the family circle they only they will decide. Her father then submitted FIR to the O/C, West Phaileng PS. On Cross-examination PW No.2 stated that she hasno affair with the accused.it is a fact that there was no eye witness to the incident. The accused is used to come to their house quite often and he was courting her.there are three bedrooms and sitting room in the upper floor of their house. It was not unusual on the part of the accused to come up to the upper floor of their house.she did not know whether her elder sister saw the accused coming up to the upper floor after her. She had no secret liking for the accused but the present case was initiated only after her mother came to know about the same.it is not a fact that the accused simply sit by her side without committing an offence.she did not know whether the accused used to enter the bedroom even on previous occasions with the cognizance of her family members. 10. PW No.3 Lalrinpuiiis mother of victim X, sheidentified the accused present in the court this day who is also hailing from their village West Phaileng. Shehas three children and the victim in the instant case is the middle one. She was born on 6 April On she went to attend a ceremony of erecting stone of a dead person in their neighborhood. The victim and her elder sister were staying at home. At around 2 pm she went back home but she saw no one inside the house. Their bedroom is in the upper storey of the house and she went up in the bedroom and search for her daughter and when she entered her daughter s bedroom she saw her victim daughter sitting on the bed and the accused was standing beside the bed. Her victim daughter was crying and when she saw her she called her and told her that the accused had sexually assaulted by touching her breast and also kissed her. She scolded the accused and the accused stated to her that he did not do any harm to the victim. She was very angry and when her husband return from work she inform him about the incident and after having discussion with their other family member they decided to submitted FIR to the police and submitted FIR to the police. On Cross-examination PW No.3 stated that she did not see the accused committing any sexual offence on her daughter when she reached the PO. It is not a fact that her daughter was having an affair with the accused for quite a long time. It is not a fact that the victim turned hostile towards the accused only after she caught them staying together red handed. It is a fact that she did not hear any sound or cry for help even from her daughter before she entered the bedroom. It is a fact that the age difference of her daughter with that of the accused is only three years and as such both of them are teenagers. It is not a fact that her daughter did not tell her why she was crying. She did not find any mark or sign of violence or assault on the clothes of her daughter even when she entered the bedroom. None of her clothes were also opened to show that she recently was touch on her breast by the accused. It is not a fact that she depose wrongly before the court today just to save the case of her daughter without any basis. 11. PW No.4Lallawmawmiis the elder sister of victim X, she identified the accused Rodingliana who present in the court this day. On , her mother went to attend a ceremony erecting tomb stone at their neighborhood. Her younger sister and she stayed at Page 4 of 9

5 5 home. She asked her younger sister to clean the bedroom. Their bedroom is in the upper storey of the house. Her victim sister went up to their bedroom for cleaning. At that time the accused was also present at their house. Meanwhile she was cleaning a kitchen and she saw the victim went up to their bedroom and she went out of the house to fetch water. When she returned home her mother was already at home and her mother told her that the accused had sexually assault her younger sister by touching her breast and kissing her. On Cross-examination PW No.4 had stated that it is a fact the accused used to come to their house very often and it was not unusual for the accused to go up-stair in their house. It is not a fact that the reason why she did not too much care when she saw the accused going up-stair was that he was having an affair with the victim. Whatever story she stated about the story was told to her by her mother and she have not personally seen the accused committing the alleged offence on her sister victim. It is not a fact that she deposed falsely in the court this day. 12. PW No. 5 LalsangberaSailo case I/O had stated that he know the accused Rodingliana present in the court this day. During the year 2015 he was posted at W.Phaileng Police Station as O/C. On an FIR was received from PC.Lalramthara S/o Ringliana, W. Phaileng, Hallelui Veng and in the FIR he stated that on around 2:00pm the accused Rodingliana had sexually assaulted his daughter aged about 15 yrs old at their resident by touching her breast and kissed her on her lip. W.Phaileng PS C/No 1/15 dt u/s 354A IPC r/w 8 of POCSO Act was registered against the accused. He took up the case for investigation. During the course of his investigation, the complainant PC. Lalramthara was examined and recorded his statement. He also visited the PO and drawn a sketch map. The minor victim girl was also examined and recorded her statement. He also recorded the other civilian witnesses. He sent the victim to Judicial Magistrate for recording her statement. He arrested the accused and he admitted his guilt before him. On completion of his investigation, he found prima facie case against the accused u/s 354A IPC r/w 8 of POCSO Act and he submitted charge-sheet before the court.exbt-p-2 is the charge-sheet submitted by him andexbt-p-2-a is his signature. On Cross-examination PW No.5 had stated that it is not a fact that the accused did not admit the commission of the alleged offence during his investigation. It is a fact that there was no statement from the witnesses examined by him during his investigation regarding the cry for help on the part of the victim before mother of the victim entered the bedroom.it is not a fact that there is no statement from mother of the victim that she saw the accused committing the charge offence.it is not a fact that he did not find prima facie case against the accused. It is a fact that the prima facie in the present case was based on the statement given by the accused, the victim and other witnesses. It is a fact that no medical examination of the victim was conducted. It is not a fact that there would not be any case regarding in the present incident had they not been caught by mother of the victim inside the bedroom. It is a fact that he was not present at the PO at the time of the incident and as such he did not see the accused committing the alleged offence.it is not a fact that Exbt. P-2 is false and Exbt. P-2-A is not his signature.it is not a fact that he deposed falsely in the court this day. Page 5 of 9

6 6 13. After the prosecution evidence is closed, the accused is examined u/s 313 of Cr.P.C. as follows:- Examination of Accused u/s 313 Cr.P.C: Q.1. The evidence against you is that the victim is well acquainted with you and she is your neighbour. What do you say? Ans :Yes, I have visited the residence of victim almost every day. Q.2.The evidence against you is that on at about 2:00 pm, you visited the house of victim. What do you say? Ans :Yes, it is true. Q.3.On this day at about 2:00 pm, the victim was alone in the house mopping the 1 st floor of the house her elder sister was carrying water from water point, so seizing the opportunity you had sexually assaulted her, by touching at her breast through her clothing, kiss her at her lips, embraced her. What do you say? Ans :Yes, it is true, we often had private moments like this, but on this day her mother came home and caught us so they made a complaint. Q.4. Do you have any other thing to say before the court? Ans :Yes, I do not forced her in any manner. Now his parents pardoned me before the YMA & VCP. Hence, I made a prayer before the court to sentence me to imprisonment already undergone. I did not have any sexual intercourse with her. Q.5. Do you want to adduce defence evidence? Ans :No. 14. After examination of accused is over, the parties are heard on the point of argument. The Ld. Spl. P.P. submitted that the accused did not denied that he had kiss the victim, and touched at her breast, which is an offence under POCSO Act 2012 as the victim X is only 17 years and did not attained 18 years and hence the accused be punish accordingly. On the other hand, the Ld. Counsel for the accused submitted that the accused and the victim had love affair, and the complainant had submitted compromise letter written in the presence of local leaders like Village council secretary and the President of YMA. The complainant fully forgive the accused and does not want his detention in the judicial custody any longer, as the complainant had no grievance with the accused and they reach amicable settlement being in the same village and in the neighbourhood. Also, the accused and the victim girl are being teenagers, i.e victim 17 years and accused 19 years only, the accused Page 6 of 9

7 7 may be forgiven. Criminal case is filed when the complainant had grievances against the accused. Now they have settled their grievances and it is confirmed by the compromise letter submitted by the complainant. Hence, he prayed the court that the imprisonment already undergone by the accused might satisfied the court. 15. After hearing both parties on the point of argument, and on perusal of the case record and in consideration of all the evidences on record, and on the accused own admission, I am convinced that the accused had really kiss the victim and touch at her breast, and thereby committed offence u/s 8 of POCSO Act. And I therefore convicted him accordingly. On the question of sentence, the accused and the prosecution are heard as per section 235(2) of Cr.P.C. The accused pleaded leniency as he was already forgiven by the victim and her father complainant. There is no hard feeling between them, as they are in love. The Ld. Spl.P.P. also did not pressed for harsh punishment as the complainant had submitted a compromise letter pleading for the cause of the accused. The complainant specifically submitted that he forgive the accused in the name of God, and he had no illfeeling against the accused and did not want further punishment to the accused. On hearing both parties on the question of sentence, and on perusal of the case record, the accused had been in prison from to On consideration of the fact that the complainant pleaded for the cause of the accused, and he specifically stated that he had no desire to inflict punishment to the accuse any further, and so in my considered opinion, Justice is already met by the imprisonment already undergone by the accused. I sentence him accordingly. There is no seized article. Give copy of this order to all concern. Given under my hand and seal of this court today the 28 th April Sd/-LUCY LALRINTHARI Special Judge, POCSO Act Aizawl Judicial District, Aizawl, Mizoram. Page 7 of 9

8 8 Memo No Dated Aizawl the 28 th April Copy to:- 1) Rodingliana C/o Mr.C.Zoramchhana, Advocate. 2) Mrs.K.Lalremruati, Ld.Spl.P.P, POCSO Act. 3) DSP Prosecution. 4) O/C W.Phaileng P/S. 5) Special Superintendent, Central Jail Aizawl. 6) In charge, Judicial Section. 7) Case reco 8) rd. 9) Guard file. PESHKAR Page 8 of 9

9 9 APPENDIX A. PROSECUTION EXHIBIT Exbt. P-1 - FIR Exbt. P-1 A - Signature of PW No.1 Exbt. P-2 Charge-sheet Exbt. P-2-A - Signature of PW No.5 DEFENCE EXHIBIT- None B. Exhibit produced by witnesses - None C. Court Exhibit - None D. Prosecution witnesses : PW No.1 is PC.Lalramthara. PW No.2 is Victim (X). PW No.3 is Lalrinpuii. PW No.4 is Lallawmawmi. PW No.5 is LalsangberaSailo. E. DEFENCE WITNESSES - None F. COURT WITNESSES - None PESHKAR Page 9 of 9