The prosecution failed to establish the appellant's guilt under the POCSO Act due to lack of credible evidence and the recantation of the key witness.

JUDGMENT & ORDER :

MARLI VANKUNG, J.

Heard Mr. B. Lalramenga, learned counsel for the appellant along with Ms.Vanneihsiami, learned Addl. Public Prosecutor and Mrs. Emily L. Chhangte, learned Legal Aid Counsel for respondent No. 2.

2. This is an appeal filed u/s 415 of the Bharatya Nagarik Suraksha Sanhita (BNSS), 2023 against the Judgment & Order dated 30.08.2024, passed by the Presiding-Officer Fast Track Special Court, POCSO Act, 2012, Aizawl, Mizoram in Crl. Trl No. 48/2021 by which the appellant was convicted u/s 4 of the POCSO Act, 2012 and sentence to undergo 10 years imprisonment with a fine of Rs. 2000/, in default rigorous imprisonment of 2 (two) months.

3. Brief facts of the case is that an FIR was filed by the informant on 11.10.2020 to the effect that her daughter ‘X’ aged 16 years was taken to Ahimsa Hotel, Zarkawt on 09.10.2020 at around 11:00 am by the husband of her younger sister, Lalliansanga/appellant. He grabbed the breasts of her daughter and even inserted his finger inside her private part. The incident was revealed to her at 6:00 pm on 10.10.2020, where she had mentioned that he even made her touch his private part. A case u/s 4 of the POCSO Act was registered as AW-PS Case No. 37/2020 dated 11.10.2020. During investigation, the PO was visited and the prosecutrix along with the other prosecution witnesses were examined and their statements recorded. The Birth Certificate of the prosecutrix was seized in the presence of 2 witnesses. The prosecutrix and the accused were also sent for medical examination. After receiving the medical examination report and from the statements made by the prosecution witnesses, the case I.O found prima facie case against the accused u/s 4 of the POCSO Act and accordingly, charge-sheet was filed.

4. The learned Trial Court framed charge u/s 4 of the POCSO Act to which the accused pleaded not guilty and claimed for trial. During trial, as many as 9 prosecution witnesses were examined. The accused on examination u/s 313 Cr.P.C denied the incriminating evidence against him. The learned Trial Court after hearing both the parties found the accused/appellant guilty of the charge u/s 4 of the POCSO Act and convicted him to undergo his term of sentence as mentioned above. Aggrieved, the appellant has filed the instant appeal.

5. Mr. B. Lalramenga, learned counsel for the appellant submits that on perusal of the deposition of the prosecution witnesses, it is seen that the evidence of the prosecutrix, who deposed as PW-2 has clearly stated that the accused/appellant did not sexually assault her in any way and that she had simply mentioned that the accused had sex with her only because the wife of the accused/appellant shouted at her angrily when they came home late on the date of the alleged incident, she had made the statement only to get rid of the wife of the appellant who is her aunty and that no such incident had happened.The same was reiterated in her cross-examination.

6. The learned counsel also pointed out that in the cross-examination of the informant/PW-1, she had admitted that the prosecutrix had informed her that the accused/appellant had not sexually assaulted her with regard to the said incident, that there was no discussion on 09.10.2020 with the family member regarding the alleged incident. PW-1 had also admitted that she had submitted the FIR only because her younger sister, Lalnunthari yelled so much that she speculated that the said incident occurred. PW-1 had also admitted that her daughter/prosecutrix did not inform her anything on 09.10.2020 and that she was also not having abnormal behavior when she came back home. The learned counsel further submitted that the Medical Doctor who had conducted medical examination of the prosecutrix had noted that the prosecutrix mentioned to her that she had sexual intercourse when she was about 11 years old. Further the Doctor had deposed that on careful examination, she found no fresh injury or laceration of her external genital area