IMPORTANT POINT
The trial court's failure to specify the charge under Section 4(1) or 4(2) of the POCSO Act resulted in an improper conviction and sentence, necessitating a remand for proper proceedings.

JUDGMENT :

Michael Zothankhuma, J.

Heard Mrs. Emily L. Chhangte, learned Amicus Curiae. Also heard Ms. Vanneihsiami, learned Addl. Public Prosecutor and Mr. C. Tlanthianghlima, learned Legal Aid Counsel for the respondent No. 2.

2. The challenge made in this appeal is to the impugned Judgment & Order dated 25.07.2023 passed by the Court of Addl. District & Sessions Judge-cum-Judge Fast Track Court, Kolasib in Crl.Trl. No. 209/2022 (SR No. 13/2022), by which the appellant has been convicted under Section 4 of the POCSO Act, 2012 and vide Order dated 07.09.2023 sentenced to undergo Rigorous Imprisonment for 20 years and to pay a fine of Rs. 10,000/-, in default (i/d) of fine, to further undergo Rigorous Imprisonment for 1 month.

3. The prosecution case in brief is that an FIR dated 23.12.2021 was submitted by the informant (PW-1), the mother of the victim, who stated that on the evening of 23.12.2021 at around 3:30 p.m, 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.

4. Pursuant to the FIR, KLB P.S Case No. 71/2021 dated 23.12.2021 under Section 4 of the POCSO Act was registered. In pursuance to the said Police case, the victim was examined and the place of occurrence was visited and a sketch map was drawn. The victim was produced before the Kolasib District Hospital for medical examination and the appellant was apprehended from Hmar Veng, Thingdawl. The victim’s statement was also recorded under Section 164 Cr.PC. After examining the witnesses, the Investigating Officer submitted a Charge-sheet, having found a prima facie case under Section 4 of the POCSO Act against the appellant. The case was then committed before the Court of the Addl. Sessions Judge, Kolasib for disposal.

5. Charge under Section 4 of the POCSO Act was framed against the appellant, to which the appellant pleaded not guilty and claimed to be tried.

6. In the trial proceedings, 7 (seven) Prosecution Witnesses were examined alongwith 1 (one) Defence Witness. Thereafter, the appellant was examined under Section 313 Cr.PC, during which he pleaded that he was innocent of the crime. The learned Trial Court however came to a finding that the appellant was guilty of having committed the offence under Section 4 of the POCSO Act. The appellant was thereafter sentenced under Section 4 of the POCSO Act, to undergo Rigorous Imprisonment for 20 years and to pay a fine of Rs. 10,000/-, in default to undergo Rigorous Imprisonment for 1 month.

7. Being aggrieved, the appellant has put the impugned judgment & order to challenge, on the ground that the learned Trial Court did not satisfy itself as to whether the victim child was tutored or not, prior to recording her evidence. The learned Amicus Curiae submits 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.

8. She further submits that the corroborative evidence relied upon by the learned Trial Court is misplaced, inasmuch as, the medical report and the evidence given by the Medical Officer (PW-3) 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.

9. The learned Amicus Curiae submits 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