IMPORTANT POINT
The conviction under Section 6 of the POCSO Act was overturned due to discrepancies in the victim's testimony and lack of evidence proving the appellant's direct involvement in the alleged acts.

JUDGMENT

Michael Zothankhuma, J.

Heard Mr. Zoramchhana, learned counsel for the appellant. Also heard Mrs. Mary L. Khiangte, learned Addl. Public Prosecutor for the respondent No. 1 and Mrs. Emily L. Chhangte, learned Amicus Curiae for the respondent No.2/informant.

2. This is an appeal against the Judgment & Order dated 11.06.2024 passed by the Presiding Officer, Fast Track Special Court, POCSO Act , 2012, Aizawl in Sessions Case No. 31/2020 arising out of Crl. Trial No. 626/2020, by which the appellant has been convicted under Section 6 of the POCSO Act and has been sentenced to undergo Rigorous Imprisonment for a period of 20 years and to pay a fine of Rs. 3000/-, in default of payment of fine, Rigorous Imprisonment for a period of two months.

3. The prosecution case is that an FIR dated 13.01.2020 was submitted by the mother of the victim boy who was five years old, which was to the effect that the victim boy had expressed pain in his anus on 11.01.2020, while his bottom was being washed after defecation. On being asked, the victim boy told his mother, the informant (PW-1), that some time in the month of December 2019, one boy, Mapuia, had inserted his finger and a stick in the anus of the victim, while another boy namely, Rammuanpuia had pulled down the pants of the victim boy. All the above had been done as per the instruction of the appellant. In pursuance to the FIR, Aizawl PS Case No. 25/2020 dated 13.01.2020 under Section 6 of the POCSO Act was registered. Thereafter, the I.O started the investigation and even had the victim examined by a Medical Officer, who made a medical report dated 13.01.2020 which stated no bruise or laceration was seen, as the incident had occurred 18 days back.

4. The I.O, after investigation of the case, having found a prima facie case against the appellant under Section 6 of the POCSO Act , filed the chargesheet. The learned Trial Court thereafter framed charge under Section 6 of the POCSO Act against the appellant which the appellant denied and claimed to be tried. Thereafter, 11 prosecution witnesses were examined by the learned Trial Court. After examination of the appellant was done under Section 313 CrPC, the learned Trial Court came to a finding that the appellant had committed the offence under Clause (m) of Section 5 of the POCSO Act , 2012. Accordingly, the appellant was convicted under Section 6 of the POCSO Act .

5. The counsel for the appellant submits that a perusal of the FIR, the statement made by the victim under Section 164 CrPC and the evidence of the prosecution witnesses clearly shows that the appellant had not committed any act under Section 6 towards the victim and at best, it could be said that the appellant had abetted the crime, but had not been the one to make any sexual act upon the victim. Neither had the appellant made the victim boy do any sexual act towards the appellant himself or in respect of any other person.

6. The appellant’s counsel submits that in his evidence, the victim (PW-2) had stated, ‘Y’ had poked him in the anus with his stick. In the FIR, it was stated that ‘Y’ had poked the victim’s anus with a stick and with his finger. In the statement made by the victim under Section 164 CrPC, the victim had stated that the appellant had inserted a bamboo into the victim’s anus. ‘Y’ is a friend of the victim and a minor.

7. The counsel for the appellant submits that the differing versions of how the incident had occurred shows the unreliability of the victim as a witness and as such, the appellant could not have been convicted under Section 6, especially when the evidence did not show that the appellant had done any sexual act/deed upon the victim. He accordingly submits that the impugned Judgment & Order should be set aside.

8. Mrs. Mary L. Khiangte, learned Addl. Public Prosecut