Point of Law: Sexual assault on minor - Significant discrepancies found in the deposition – Benefit of doubt given.

JUDGMENT :

Heard Mr. Joseph L. Renthlei, learned counsel appearing for the appellant as well as Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor, Mizoram. The appellant has challenged the impugned Judgment & Order dated 15.02.2021 passed by the Special Court, POCSO Act, Aizawl in SC No. 184 of 2017, by which the appellant has been convicted under Section 8 of the POCSO Act, 2012 and sentenced to undergo 3 years Simple Imprisonment with a fine of Rs.1000/-, in default S.I. for 1 month, vide Sentence Order dated 01.03.2021.

2. The prosecution case in brief is that an FIR was submitted to the Officer-in-Charge, Vaivakawn Police Station, Aizawl on 19.08.2017 by one Ramnghinglova, s/o T. Sanghluna, R/o Chawnpui Vengthlang, Aizawl, stating that on 18.08.2017 at around 7:30 pm his daughter ‘X’ aged 4 years, was sexually assaulted in an enclosure used for cooking pigfeed by a person known to them as Pa Rama. In pursuance to the FIR submitted, Vaivakawn Police Station Case No.129/2017 was registered under Section 8 of the POCSO Act, dated 19.08.2017.

3. The appellant was arrested on 19.08.2017 (subsequently released on bail on 12.12.2017) and the victim girl X was medically examined by a Medical Doctor, who found no bruising or lacerations on her external genitalia. During investigation of the case by the Police I.O, the statement of 8 (eight) prosecution witnesses were recorded and the victim girl also gave her judicial statement to the Judicial Magistrate under Section 164 Cr.P.C on 21.08.2017. The birth certificate of ‘X’ was seized which showed that she was born on 14.02.2013. Thereafter, charge sheet was filed on 09.10.2017.

4. Charge under section 8 of the POCSO Act, 2012 was framed against the appellant on 28.11.2017, wherein the appellant pleaded not guilty and prayed for trial. The trial court after examination of 7 (seven) prosecution witnesses, examined the appellant/accused under Section 313 Cr.P.C on 04.11.2017 where he denied having committed any sexual assault upon the victim girl X, thereafter, 2 (two) defense witnesses were examined. The learned Trial Court, after hearing the parties found the appellant to be guilty and convicted him under section 8 of the POCSO Act, 2012, vide the impugned Judgment & Order dated 15.02.2021. Sentence hearing was held on 01.03.2021 whereby he was punished to undergo S.I. for 3 years with a fine of Rs.1000 /-, in default S.I. for 1 month.

5. Being aggrieved, the appellant has filed the present appeal.

6. Mr. Joseph L. Renthlei, learned counsel appearing for the appellant submits that the trial court erred in relying on the sole testimony of the prosecutrix who is only four (4) years old. Being of a very tender age, it would have been appropriate for the Ld. Trial Court to conduct a competency test upon the child before relying upon her evidence to convict the accused. The trial court did not conduct such a test to determine the competency of the child. That, it is an established principle of law that evidence of a child witness must be evaluated carefully before relying upon the statement of a child to convict an accused. The evidence of a child needs to be supported by adequate corroboration before being relied upon especially when as in the present case, the child is of a tender age. That the statement of the child prosecutrix cannot be of a sterling quality that can be used for convicting the accused without any corroboration. That the Hon’ble Supreme court held that for a statement to be of ‘sterling’ in ‘quality’ the statement has to be consistent from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. In the instant case, there is a difference in the statement given by the victim child before the Judicial Magistrate on 21.08.2017 and in her evidence given before the Court on 24.01.2018. He submits that while the evidence of the child was exaggerated in her pre-trial statement which was to the effect tha