The duty of the court to ascertain the competency of witnesses, particularly in sexual offence cases, and the importance of recording questions put to the witness and their answers to determine competency. The court also highlighted the duty of the court to summon and examine witnesses to prevent miscarriage of justice and bring out the truth.

B.P. Katakey, J.

1. This appeal is directed against the judgment of acquittal dated 22.6.05 recorded by the Id. Additional District Magistrate (Judicial) Aizawl in Criminal Tr. No. 1160/02 acquitting the Respondent from the charges framed under Section 376(1) IPC.

2. The prosecution story in brief is that, on 27.6.2002, a written First Information was lodged by Sh. Lalthandinga, PW 1, the father of the victim to the officer in-charge, Kulikawn Police Station, alleging that his abnormal daughter, aged about 13 years, residing at Reiek Village was sexually assaulted by the Respondent during the month of May, 2002. The investigating agency, on receipt of the said F.I.R. registered Kulikawn P.S. Case No. 125/02 Under Section 376(1) IPC, and upon completion of investigation, submitted the charge sheet. The learned trial court, thereafter, framed charges against the present Respondent Under Section 376(1) IPC and when the same was read over and explained to him, he pleaded not guilty and claimed to be tried. The prosecution in order to bring home the charge presented 7 (seven) witnesses including, the first informant Sh. Lalthandinga, the victim, Zorammuani, the sister of the victim, Dr. Catherine Ngurbiakveli, who medically examined the victim, as well as the investigation Officers, who conducted the Investigation. The learned Additional District Magistrate (J) acquitted the Respondent from the charges Under Section 376(1) IPC, on the ground that there was no eye witness and the prosecution has failed to prove the charges against the Respondent. The learned trial court has also observed that the victim could not give any rational answers to the questions put to her and therefore, it is not to safe convict on the testimony of other witnesses more so, when the doctor did not give any specific opinion that the victim was sexually assaulted. Hence, the present appeal by the State Under Section 378 Code of Crimional Procedure.

3. I have heard Miss Dinari T. Azyu, the learned Assistant Public Prosecutor for the State and also Mr. A.R. Malhotra, the learned Counsel appearing on behalf of the Respondent.

4. Miss Dinari T. Azyu, the learned APP referring to the provisions contained in Section 118 of the Indian Evidence Act has submitted that in the instant case as the victim is a mentally retarded person, the learned trial court is duty bound to put questions to such witness to ascertain as to whether she can give rational answer to those questions and is competent to testify. According to the learned APP, the victim of a sexual offence is the most important witness and even the conviction can be based on the sole testimony of such witnesses, therefore, the courts burden while examining the victim as the witness, is more than the witnesses of other offences. According to the learned APP, the learned trial court except recording that no rational answers could be given by the victim, while she was presented as witness on behalf of the prosecution, did not even state what were the questions, the learned Magistrate put to her and what were her answers, to come to such finding, which the learned Magistrate is duty bound to record as the same is open to challenge. The learned APP has further submitted that in fact, the accused person has admitted his guilt by making a confessional statement which was recorded as required Under Section 164 Code of Criminal Procedure, and such confessional statements, having been on record, the learned Magistrate ought to have examined the witness to prove such confessional statements, even by exercising the power Under Section 311 Code of Criminal Procedure, as the purpose of a criminal trial is to find out the truth and to punish the guilty. The learned APP therefore, submits that it is a fit case where this Court may exercise the power Under Section 391 Code of Criminal Procedure and direct the learned trial court to record the evidence of the prosecutrix, as well as such witnesses to prove the confessional