The act of touching a child's private parts through clothing does not constitute aggravated penetrative sexual assault under the POCSO Act, necessitating careful scrutiny of child witness testimony.

JUDGEMENT AND ORDER :

Marli Vankung, J.

Heard Mr. H. Zodingsanga, learned Amicus Curiae for the appellant. Also heard Ms. Vanneihsiami, learned Additional Public Prosecutor for the State respondents and Mr. Jordan Rohmingthanga, learned Legal Aid Counsel for respondent No. 2.

2. This is a jail appeal against the Judgment & Order passed on 19.12.2023 by the District & Sessions Judge-cum-Judge, FTC, Kolasib in SC(K) No. 10/2021 A/o of a Crl. Tr. Ex. No. 194/2021, Kolasib PS Case No. 60/2020, wherein, the appellant was convicted u/s 6 of the POCSO Act and sentenced to undergo R.I. for 20 (twenty) years and to pay a fine of Rs. 5000/- in default to undergo further S.I. for 1 (one) month.

3. Brief facts of the case is that an FIR was filed by the informant on 25.08.2020 to the effect that during the month of June – July, 2020 her younger sister Ramdinthari, whom they had admitted to TNT, Khuangpuilam (Rehab) took her daughter ‘X, aged 5 years with her to the Rehabilitation Home. Another inmate of TNT, Khuangpuilam named Lalhlimpuia of Kawnpui sexually molested the minor daughter of Ramdinthari by touching her breasts and private part. The FIR was thus filed for taking legal action against Lalhlimpuia who had molested ‘X’ (minor). The case was registered as KLB – PS C/No. 60/2020 dated 25.08.2020 u/s 6 POCSO Act.

4. Thereafter, the case I.O took up the investigation of the case by visiting the P.O and examining the complainant, the victim ‘X’ and other witnesses. The accused was arrested and the accused and the victim ‘X’ were sent for medical examination. The medical report showed that the hymen of the victim child was not intact. The statement of the victim ‘X’ was also recorded by JMFC under Section 164 CrPC. The Birth Certificate of the victim child was also seized. From the above investigation, a prima facie case under Section 6 of the POCSO Act was found against the appellant and the charge sheet was submitted accordingly.

5. The learned Trial Court framed charge under Section 6 of the POCSO Act against the accused/appellant, which was read out and explained to him in the language known him, to which he pleaded not guilty and claimed for trial. During trial, as many as 7 prosecution witnesses were examined, though the prosecution had cited 8 prosecution witnesses. In the examination of the accused/appellant u/s 313 CrPC, he denied the incriminating evidence that he had committed aggravated penetrative sexual assault upon the minor victim girl by touching her breasts and her private part inside TNT Home, Khuangpuilam. The accused/appellant produced one defence witness.

6. The learned Trial Court upon hearing both the parties, found the accused/appellant guilty of the charge u/s 6 of the POCSO Act and on his conviction, sentenced him to undergo R.I. for 20 (twenty) years and to pay a fine of Rs. 5000/- in default to undergo further S.I. for 1 (one) month. Aggrieved, the instant jail appeal.

Submissions made by the learned counsels

7. Mr. H. Zodinsanga, learned Amicus Curiae submitted that the impugned Judgment & Order dated 19.12.2023 is liable to be set aside on the grounds that on perusal of the deposition of the victim girl before the court and her statement recorded u/s 164 CrPC, it can be seen that the victim child had only stated that the accused/appellant had touched her breasts and her vagina through her panty. That he did this 3 (three) times during her stay at TNT Home, Kolasib. The learned Amicus Curiae submitted that the nature of the offence described by the victim girl is not an act of penetrative sexual assault as described under Section 3 of the POCSO Act, nor is it an aggravated penetrative sexual assault under Section 5 of the POCSO Act since the victim girl had only stated that the appellant had touched her vagina through her panty, there is no evidence of any penetration.

8. The learned Amicus Curiae further submitted that the learned Trial Court had failed to ask the preliminary questions required during trial before