Shri. Wanlang Phawa vs . State Of Meghalaya.
2024 Latest Caselaw 41 Meg

High Court of Meghalaya

Shri. Wanlang Phawa vs . State Of Meghalaya. on 16 February, 2024

Serial No.01
Supple List
                    HIGH COURT OF MEGHALAYA
                          AT SHILLONG

Crl. A. No. 16 of 2023                 Date of Decision: 16.02.2024

Shri. Wanlang Phawa              Vs.       State of Meghalaya.

Coram:
               Hon'ble Mr. Justice B. Bhattacharjee, Judge


Appearance:
For the Petitioner(s)       :   Mr. R. H. Alice, Legal Aid Counsel.

For the Respondent(s)       :   Mr. K. P. Bhattachrjee, GA.

i)    Whether approved for reporting in                 Yes/No
      Law journals etc:
ii)   Whether approved for publication                  Yes/No
      in press:


                        JUDGMENT AND ORDER

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. 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 Section

216(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) (2004) 5 SCC 347, Hasanbhai Valibhai Qureshi Vs. State of Gujarat & Ors. (Paras 8 & 9).

ii) (2014) 11 SCC 538, Central Bureau of Investigation Vs. Karimullah Osan Khan (Para 18).

4. Mr. K. P. Bhattacharjee, learned GA appearing for the State-

respondent supports the impugned judgment and order and the order

of sentence and submits that alteration of charges at the time of

pronouncement of judgment and order has not caused any prejudiced

to the appellant.

5. Before dealing with the submissions advanced by the rival

parties, it would be appropriate to briefly discuss the substance of

evidence recorded at the trial. PW-1, the complainant, who is the

father of the survivor, in his deposition stated that on the day of

incident he was in his workplace and on being informed by his wife

about the incident, he immediately rushed home. After reaching home

he made an enquiry from his son/survivor who narrated that the

appellant had called the survivor to his house and on entering the

house the appellant took off the trouser of the survivor and also took

off his own trouser and started committing sexual assault from his

buttock but fortunately some other kids were present in an around

which made the appellant release the survivor. The PW-1, thereafter,

went to the house of the appellant and confronted him and the

appellant admitted his guilt. Subsequently, the matter was informed to

the local authority and the incident was reported to the Lumshnong

Police State wherein the FIR was lodged. The PW-2, the survivor, at

the time of recording of evidence by the Trial Court identified and

pointed at the appellant from behind a curtain and in his deposition

categorically stated that on the day of incident the appellant dragged

the survivor to his house and pulled down his trouser and then

sexually assaulted the survivor from behind his buttock. The survivor

had seen the appellant taking out his penis and standing behind him

and he could feel the appellant making physical contact in his buttock.

The survivor, however, did not feel any pain and at the time when the

appellant committed the crime, two of his friends came looking for

him for which the appellant had to let go of the survivor. The

survivor thereafter ran home and narrated the incident to his mother,

who in turn informed the matter to his father. The PW-2 also

exhibited his statement recorded under Section 164 Cr.P.C as Exhibit -

2. The deposition made by the PW- 1 and PW- 2 stood unrebutted as

both of them were not cross-examined on account of absence of

defence counsel and both the witnesses were discharged. In spite of

existence of incriminating evidence against the appellant, no

application was filed by the defence during the course of the trial to

recall the aforesaid witnesses for the purpose of cross-examination.

6. The PW- 3 deposed that on the day of the incident when he was

returning home which is nearby the place of occurrence, he was called

by a boy to come and see the survivor who was inside the house of the

appellant. On reaching the verandah of the house of the appellant, he

saw both the appellant and the survivor coming out of the house of the

appellant. PW- 4, the mother of the survivor, in her evidence stated

that on the day of the incident, at around 12 noon, the survivor came

home crying and told her that he was sexually assaulted by the

appellant person in his buttock. Thereafter, she informed her husband

about the incident. PW-5, who is a young witness of 14 years,

deposed that he did not remember about the incident and also denied

to have known the appellant. However, he identified the appellant via

V/C to be a resident of Lumshnong. PW-6, who is a child witness,

deposed that on the day of the incident while he was going along with

the survivor towards the house of the survivor, on reaching in front of

the house of the appellant, the appellant dragged the survivor inside

his house and closed the door. He identified the appellant in the Court

through V/C. The PW-6 was also not cross-examined by the defence.

PW-7 is a doctor who conducted medical examination of both the

survivor and the appellant. Though the concerned medical reports are

not of much relevance, the said witness deposed about the incident

which was narrated by the minor survivor matching the version of the

incident deposed by the survivor in his evidence before the Trial

Court. The said witness also deposed that the appellant admitted that

he had committed the crime with full knowledge.

7. The PWs-8 & 9 are both seizure witness in whose presence the

material exhibit containing biological samples of the survivor and the

appellant were collected. The depositions of the said witnesses are

considered not very vital as the impugned conviction of the appellant

is not based on any material exhibit collected during the course of the

investigation. PW-10 in his evidence deposed that on being informed

of the incident by the PW-1, he went to the house of the appellant

along with PW-1 and others and thereafter informed the headman of

the village and then proceeded to the Lumshnong PS to report the

matter. PW-11, the investigating officer of the case, in his deposition

before the Trial Court narrated the details of investigation made by

him and stated that on the basis of the material collected and after

discussions with the senior officer, he found that a case has been well-

established against the appellant. No contradiction has been pointed

out in his evidence.

8. A detailed analysis of the aforesaid evidences would reveal that

the allegation made by the prosecution has been supported by all the

witnesses. The statement of the survivor stood firm and nothing has

been pointed out in the evidence which may casts a shadow of doubt

over the statement of the survivor. On the contrary, it is found that the

allegation made against the appellant is well-supported by the other

evidence of the PWs. The contention of the appellant that the

evidence of the survivor has not been corroborated is devoid of merit

and cannot be accepted. In addition, the appellant has also failed to

project any rebuttal to the foundational proof adduced by the

prosecution witness.

9. Coming to the contention of the learned counsel for the

appellant with regard to the alteration of charges at the time of

delivery of the impugned judgment and order and non-adherence to

the principle of law as per the mandate of Section 216 Cr.P.C. by the

Trial Court, it is noticed that the learned Trial Court while

pronouncing the judgment has altered the charges framed with a view

to convict the appellant for a minor offence, although the appellant

was not charged with it. The learned Trial Court on a thorough

scrutiny of the evidence on record, came to a conclusion that no

offence has been made out under Section the 6 POCSO Act read with

Section 377 IPC but held that a case under Section 7 POCSO Act

punishable under Section 8 POCSO Act stands established against the

appellant. There is nothing on record to show that the charges were, in

fact, altered and a new set of charges was framed against the

appellant. Thus, in a true sense there was no alteration of charge in

terms of Section 216 Cr.P.C by the Trial Court instead it was a case

where the Court had proceeded to convict the appellant for a minor

offence.

10. Section 222 Cr.P.C empowers a criminal Court to convict a

person for a minor offence although he is not charged with it. The

Apex Court in the case of Rafiq Ahmad Alias Rafi Versus State of

Uttar Pradesh, (2011) 8 SCC 300 has held that when charge for a

major offence is not made out, conviction for a minor cognate offence,

even in absence of charge, can be sustained. If an appellant is charged

with grave offence but same is not established on merits or for a

default of technical nature, he can still be convicted and punished for

commission of a less grave offence without altering the charge,

provided the lessor offence is of cognate nature and its ingredients are

proved beyond reasonable doubt, appellant does not suffer any

prejudice and it does not result in failure of justice.

11. Minor cognate offence means a lessor offence that is related to

the greater offence and shares several of the elements of the greater

offence and is of the same class or category. A conjoint reading of

Sections 5/6 and 7/8 of the POCSO Act would indicate that the

offences are cognate offence inasmuch as the said Sections deal with

sexual offence. Section 5/6 POCSO Act speaks about aggravated

penetrative sexual offence, Section 7/8 POCSO Act deals with sexual

assault. The essential element for both the aforesaid offences are

common as both deal with unlawful sexual activity against children,

while the former speaks of higher degree of sexual offence, the latter

deals with a lesser degree of the same offence. Therefore, it can be

safely concluded that the offence disclosed in Section 7/8 POCSO Act

is cognate offence of the major offence mentioned in Section 5/6

POCSO Act and not entirely distinct and different offence, constituted

by altogether different ingredients. When an appellant is charged with

an offence consisting of several particulars, and if all the particulars

are proved, then it will constitute the main offence, while if only some

of those particulars are proved and their combination constitute minor

offence, the appellant can be convicted for minor offence though not

so charged.

12. A mere mention of alteration or addition of charge in the

judgment and order of a trial Court to sustain the conviction recorded

for a minor cognate offence cannot be termed as an alteration or

addition of charge as contemplated in section 216 Cr.P.C. In the

present case, the learned Trial Court after appreciation of the entire

evidence on record came to a finding that the appellant is guilty of

commission of an offence under Section 7/8 POCSO Act and not

under Section 5(m)/6 of POCSO Act read with Section 377 IPC for

which the charge was framed against the appellant at the beginning of

the trial. The alteration of charge was not at all necessary for the Trail

Court to sustain the conviction recorded under Section 7/8 POCSO

Act. The Trail Court was well-within its power to convict the

appellant for a minor cognate offence by virtue of Section 222 Cr.P.C.

without altering the charge.

13. The materials on record in the present case undoubtedly support

the conviction recorded by the learned Trial Court. No plea has been

raised by the appellant that the conclusion drawn by the learned Trial

Court to convict the appellant for the minor cognate offence has

resulted in prejudice to the appellant. In fact, the Trial Court at para

30 of its judgment and order dated 24-03-2022 has recorded that the

defence has fairly argued for attraction of the altered Section therein.

14. The citations of case law relied upon by the learned counsel for

the appellant would apply in a situation where the charge is altered by

a criminal Court in exercise of its power under Section 216 of Cr.P.C.

In the present case, the learned Trial Court has not altered the charge

against the petitioner strictly in terms of the provisions of Section 216

Cr.P.C, instead proceeded to hold the appellant guilty of a minor

cognate offence in exercise of authority vested under Section 222

Cr.P.C and hence, the same cannot be faulted with. Moreover, it is an

admitted position that no prejudiced has been caused to the appellant.

15. In view of the aforesaid discussions, there is no merit in this

present Criminal Appeal and the same is dismissed.

16. A copy of this judgment and order be supplied to the appellant,

free of cost, forthwith.

17. Return the L.C Record immediately.

JUDGE

Meghalaya 16.02.2024 "Biswarup-PS"