IMPORTANT POINT
The court ruled that insufficient evidence of penetration under Section 6 of the POCSO Act led to a conviction under Section 10 for aggravated sexual assault.

JUDGMENT :

Kaushik Goswami, J.

Heard Mr. C. Tlanthianghlima, learned Amicus Curiae for the accused/appellant. Also heard Ms. Vanneihsiami, learned Addl. Public Prosecutor for the respondent No. 1 and Mr. Lalramdinthara, learned Legal Aid Counsel for the respondent No. 2, who is the mother of the victim girl.

2. This Jail Appeal is presented against the Judgment & Sentence Order dated 25.08.2023 passed by the learned Special Judge, POCSO Act, Champhai in Sessions Registration Case No. 88/2018 on 31.07.2024, whereby the accused/appellant was convicted under Section 6 of the Prevention of Children under Sexual Offences Act, 2012 (hereinafter to be referred as “POCSO Act, 2012”) and sentenced to undergo Rigorous Imprisonment for a period of 20 years and to pay a fine of Rs. 10,000/- (Rupees Ten Thousand) with a default clause.

3. The brief facts of the case is that upon receipt of an FIR on 23.06.2019 lodged by the respondent No. 2 i.e. (the mother of the victim) informing inter- alia that on 23.06.2019, the accused/appellant between 2:00 to 3:00 p.m. took her daughter aging about 5 years behind Champhai Dinthar Veng Sub-Centre where he touched and sucked her private parts, a case was registered being CPI PS Case No. 63/19 under Section 10 of the POCSO Act, 2012. Thereafter, the matter was investigated and upon charge-sheet being filed, the learned Special Judge, POCSO Act, Champhai (hereinafter to be referred as “Trial Court”) framed charge under Section 6 of the POCSO Act, 2012 against the accused/appellant. Thereafter, trial commenced, wherein the prosecution submitted a list of 9 witnesses as Prosecution Witnesses. The listed 9 Prosecution Witnesses are as hereunder:-

The accused/appellant did not adduce evidence except explaining the situation during examination under Section 313 of the Code of Criminal Procedure, 1974 (hereinafter to be referred as “Cr.PC”).

4. Mr. C. Tlanthianghlima, learned Amicus Curiae submits that the accused/appellant has been wrongly convicted under Section 6 of the POCSO Act, 2012 as there is no evidence of any degree of penetration or insertion whatsoever in the vagina of the victim. He accordingly submits that the impugned conviction warrants interference from this Court.

5. Per contra, Ms. Vanneihsiami, learned Addl. Public Prosecutor submits that there is evidence indicating that the accused/appellant has touched the private parts of the victim and hence, the appeal is liable to be dismissed.

6. Similarly, Mr. Lalramdinthara, learned Legal Aid Counsel for the respondent No. 2 submits that it is established beyond reasonable doubt that the accused/appellant has committed the charged offence and hence, no interference is called for.

7. We have given our prudent consideration to the arguments advanced by the learned counsels for the contending parties and have perused the materials available on record.

8. During the course of trial, out of the 9 Prosecution Witnesses, the prosecution witnessed only 7 witnesses and further exhibited 17 numbers of documents.

9. PW-1, Lalrinthari, who i