Interpretation of Section 3(c) of the POCSO Act, absence of 'aggravated' in the charge, and trustworthiness of victim girls' testimony.

JUDGMENT

Michael Zothankhuma, J. - Heard Mr. Victor L. Ralte, learned Amicus Curiae and with Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor.

2. This is an appeal against the Judgment & Order dated 25.06.2018 passed by the Special Court, POCSO Act, Siaha in SR No. 11/2018, by which the appellant has been convicted under Section 6 of the POCSO Act, 2012 and sentenced to undergo Rigorous Imprisonment for 15 years with a fine of Rs. 3,000/-, in default R.I. for 30 days, vide Sentence Order dated 26.06.2018.

3. The prosecution story in brief in that one Mr. H.C. Lalmuankima submitted an FIR on 18.02.2018 to the Officer-in-charge, Siaha Police Station, Siaha stating that his 2 (two) minor girls, aged 9 years and 7 years were sexually molested by the appellant before Christmas, 2017. Consequently, Siaha Police Station Case No. 18/2018 was registered under Section 8 of the POCSO Act and investigation was initiated. The victim girls were sent for Medical examination on 18.02.2018. The Medical report of the elder victim stated that the hymen was not intact, while the hymen of the younger victim was found to be intact.

4. During the investigation, the statements of the victim girls were recorded under Section 164 Cr.P.C. After recording the statement of the witnesses, Charge-sheet was submitted wherein, the Investigating Officer found a prima facie case under Section 6/10 of the POCSO Act, instead of under Section 8 of the POCSO Act, 2012. Charge was framed against the appellant under Section 6 of the POCSO Act. Thereafter, trial started wherein, 6 Prosecution witnesses and 1 Defence witness were examined. After examining the appellant under Section 313 Cr.P.C., the learned Tribunal Court found the appellant to be guilty of the offence under Section 3(a), 3(c) and Section 5(m) of the POCSO Act, 2012. The appellant was consequently convicted under Section 6 of the POCSO Act, vide the impugned Judgment & Order dated 25.06.2018 passed by the Special Court, POCSO Act, Siaha in SR No. 11/2018 and sentenced him to undergo 15 years RI along with a fine of Rs. 3,000/- and in default thereof, R.I. for 30 days, vide Sentence Order dated 26.06.2018.

5. The appellant being aggrieved has filed the present appeal.

6. The learned Amicus Curiae submits that the learned Trial Court has found the appellant guilty of the offence under Section 3 (a) of the POCSO Act against the elder victim girl, while he has found the appellant guilty of the offence under Section 3 (c) of the POCSO Act, 2012 against the younger victim girl. As the 2 (two) minor sisters were below 12 years of age at the time of the incident, the learned Trial Court found the appellant guilty of aggravated penetrative sexual assault and accordingly, convicted him under Section 6 of the POCSO Act, 2012.

7. The learned Amicus Curiae submits that the finding of the learned Trial Court is not supported by the statements given by the victim girls under Section 164 Cr.P.C. and also as per their recorded evidence, inasmuch as, there was no penetration of the vaginas of the victim girls by the penis of the appellant. There was only an attempt at penetration.

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The learned Amicus Curiae also submits that at the time of framing of charge under Section 6 of the POCSO Act, 2012, the learned Trial Court had used the word "penetrative sexual assault" and had left out the word "aggravated". He submits that the absence of the word "aggravated", while framing charge under Section 6 of the POCSO Act, vitiated the trial and has caused prejudice to the appellant. He thus submits that due to the above reasons, the appellant could not have been convicted for aggravated penetrative sexual assault.

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8. The learned Addl. Public Prosecutor, on the other hand, submits that the impugned Judgment & Order need not be interfered with, in view of the fact that the appellant has admitted to his guilt in his appeal petition. The learned Addl. Public Prosecutor also submits that the absence of the word "aggravated