Guwahati: The Gauhati High Court in Aizawl has set aside a judgment and sentence order passed by a trial court under Section 4 of the POCSO Act on the ground the charge was framed without specifying the charge to be under 4(1) or 4(2) of the POCSO Act.
Besides, the trial court (Court of Additional District and Sessions Judge-cum-Judge Fast Track Court in Kolasib district) did not put any preliminary questions to the victim, before recording her evidence.
The division bench comprising Justice Michael Zothankhuma and Justice Marli Vankung observed, that before recording the evidence of the six-year-old victim, the trial court did not put any preliminary questions to the child, to satisfy itself as to whether the victim child had the capacity or capability to understand the questions put to her and as to whether she could give rational answers to the same.
“This was a necessity, so as to take away any doubt, with regard to the understanding capacity of the victim child and to do away with any doubt regarding the child having being tutored, inasmuch as, the evidence of the medical officer does not inspire confidence,” the bench stated.
The prosecution case in brief was that an FIR, dated December 23, 2021, was submitted by the informant, the mother of the victim, who stated that on December 23, 2021, at around 3:30 pm, her 6-year-old daughter visited the house of the appellant and came home with a frightened look on her face. On questioning her, her daughter told her that the appellant had inserted his private parts into her private parts and told her not to tell her mother about it or else she would be scolded badly.
After a case was subsequently registered against the accused-appellant under Section 4 of the POCSO Act, 2012, the trial court convicted the accused-appellant, and vide its sentence order dated September 07, 2023, sentenced him to undergo rigorous imprisonment for 20 years and to pay a fine of Rs 10,000.
Thereafter, the accused-appellant challenged the judgment and order of the trial court on the ground that it did not satisfy itself as to whether the victim child was tutored or not, prior to recording her evidence.
The Amicus Curiae submitted that unless the satisfaction of the trial judge is recorded, with regard to the capability of the victim child to understand questions put to her and that the victim child was capable of giving rational answers, the conviction of the appellant, solely on the basis of the evidence of the child witness was not sustainable.
Besides, it was submitted that the corroborative evidence relied upon by the trial court was misplaced, inasmuch as, the medical report and the evidence given by the medical officer has not clarified as to whether the hymen of the victim had been ruptured or not. “Further, no specific finding has been made by the medical officer with regard to whether there was any bruise/laceration/swelling, etc, of the external genitalia of the victim girl,” the Amicus Curiae submitted.
It was further submitted that when the charge framed against the appellant has been made only under Section 4 of the POCSO Act, without specifying whether it should be under Section 4(1) or 4(2), which carries different minimum sentences, the sentence imposed upon the appellant under Section 4(2), without convicting the appellant under Section 4(2) was not justified.
The Additional Public Prosecutor and Legal Aid Counsel admitted that there has been a mistake committed by the trial court in not framing a specific charge under Section 4 (2) of the POCSO Act. They accordingly submitted that the conviction of the appellant under Section 4, without specifying whether it is relatable to Section 4 (1) or 4 (2), was not proper.
The Court noted that in the instant case the charge has been framed only under Section 4 of the POCSO Act, without specifying the charge to be under 4 (1) or 4 (2) of the POCSO Act.
“The sentence of the appellant has been made under Section 4, vide order dated September 7, 2022, for a minimum period of 20 years, though the same can be done only in terms of Section 4 (2) of the POCSO Act. As the charge was framed only under Section 4 of the POCSO Act, we are of the view that the appellant could not have been sentenced for a term of 20 years under Section 4 of the POCSO Act, as the same can be done only in terms of Section 4 (2). Due to the above reasons, it appears that the appellant was not given a proper opportunity to defend himself, with regard to the charge and sentence apparently given under Section 4 (2) of the POCSO Act,” the Court noted.
The Court stated that in the absence of a specific charge, (i.e., Section 4(1) or 4(2) of the POCSO Act), at the time of framing of the charge stage and thereafter, there is a likelihood of the appellant being misled into believing that the charge has been framed under Section 4(1) also.
The Court also observed that when there is a serious lacuna which could cause prejudice to the appellant, the benefit of doubt should be given to the accused, as he could have been sentenced for a minimum of 10 years under Section 4 (1) of the POCSO Act.
“In view of the above reasons, we are of the view that in this particular case, the evidence of the victim child cannot be the sole basis for convicting the appellant, unless the safeguards mentioned above are undertaken. We are of the view that the matter should be re-considered by the learned Trial Court, after following all the requirements/procedures required to be followed in law,” the Court said.
Accordingly, the impugned judgment and order passed by the trial court was set aside and the case remanded back to the trial court to take up the proceedings from the state of framing of charge, considering the seriousness of the case.
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