IMPORTANT POINT
Statements under Section 164 Cr.PC are not substantive evidence without corroboration; the accused is entitled to the benefit of doubt in the absence of reliable evidence.

JUDGMENT :

NELSON SAILO, J.

1. Heard Mr. Lalpianfela Chawngthu, learned counsel for the appellant, Ms. Mary L. Khiangte, learned Addl. Public Prosecutor for the State and Mr. T. Lalzekima, learned Legal Aid Counsel for respondent No. 2.

2. This is an appeal filed by the appellant against the Judgment & Order dated 19.09.2022 passed by the Presiding Officer, Fast Track Special Court, POCSO Act, Aizawl in S.C Case No. 30/2019 corresponding to Criminal Trial No. 332/2019 by which the appellant was convicted under Section 6 of the POCSO Act and sentenced to undergo Rigorous Imprisonment for 20 years with a fine of Rs. 10,000/- and in default to undergo further Rigorous Imprisonment for six (6) months.

3. The case of the prosecution in brief is that an FIR was lodged on 19.09.2018 by the complainant (PW-1) to the effect that the appellant on 05.09.2018 had sexual intercourse with the prosecutrix who is her grand-daughter and that he had also earlier committed sexual intercourse with her in the year 2016 and in the month of July, 2018 as well. As a result, Serchhip P.S Case No. 78/2018 dated 19.09.2018 under Section 6 of the POCSO Act was registered and investigated into. Upon the conclusion of the investigation, the case I/O (PW-10) finding a prima facie case under Section 376(3) IPC read with Section 6 of the POCSO Act to be well established against the appellant, filed the chargesheet.

4. The Trial Court then framed the charge under Section 6 of the POCSO Act against the appellant on 13.06.2019, which was denied by him and he claimed to be tried. Trial therefore commenced and during which, the prosecution examined as many as eight (8) prosecution witnesses including the prosecutrix while the defense examined two (2) defense witnesses including the appellant himself. After the appellant was examined under Section 313 Cr.PC and the parties were heard, the learned Trial Court convicted and sentenced the appellant in the manner as already stated herein above. Aggrieved with the same, the appellant has filed the instant appeal.

5. Mr. Lalpianfela Chawngthu, learned counsel at the outset submits that the conviction of the appellant was on the basis of the statements recorded under Section 161 Cr.PC and also the statements of the prosecutrix recorded under Section 164 Cr.PC. In this connection, he has drawn the attention of this Court to paragraph No. 17 of the impugned Judgment & Order. The learned counsel submits that the statements recorded under Section 164 of the Cr.PC is not a substantive evidence and that it can only be used to corroborate the statements of a witness and/or to contradict a witness. Similarly, the statements recorded under Section 161 Cr.PC cannot be relied upon to convict an accused and that statements made under the said provision are made without administering an oath. He submits that in the absence of substantive evidence, the appellant could not have been convicted and sentenced by the learned Trial Court through the impugned Judgment and Order. In support of his submission, the learned counsel relies upon the case of Ram Kishan Singh Vs. Harmit Kaur & Anr. (1972) 3 SCC 280 and the Judgment & Order dated 25.01.2024 passed by a Coordinate Bench of this Court in Criminal Appeal No. 12/2023 (C. Vanramnghaka Vs. State of Mizoram & Anr.).

6. The learned counsel further submits that although the complainant in the FIR has mentioned that the incident happened on 05.09.2018 but in her evidence during the trial, she has nowhere mentioned about the incident having happened on 05.09.2018. Similarly, the said date is not to be found in the evidence of the prosecutrix (PW-2) herself. Although PW-4 and PW-5 in their evidence during the trial had mentioned that the incident happened on 05.09.2018 but since the complainant and the prosecutrix have not said anything about the incident happening on 05.09.2018 in their evidence, there is clearly a missing link and therefore, the benefit of doubt should be given to the appellant.

7. The