Child witness competency must be determined through preliminary questioning before evidence is recorded; failure to comply jeopardizes the integrity of the trial.

JUDGMENT :

MARLI VANKUNG, J.

1. Heard Mr. Victor L. Ralte, learned Amicus Curiae for the appellant. Also heard Mrs. Mary L. Khiangte, learned Addl. Public Prosecutor for the State and Ms. Lalngaihsaki Fanai, learned Legal Aid counsel for respondent No. 2.

2. This is a jail appeal filed against the Judgment & Order dated 22.02.2024 passed by the learned Presiding Officer, Fast Track Special Court, Rape & POCSO Act, Aizawl, Mizoram in Sc. No. 120 of 2021 registered as Crl.Tr. No. 1604 of 2021, wherein, the appellant was convicted under Section 6 of the POCSO Act and sentenced to undergo R.I for a term of 20 years.

3. Brief facts of the case is that an FIR was received on 20.07.2021 from the informant, who stated that her daughter ‘X’, aged 5 years had been sexually molested and raped frequently by Kawlthuamluaia (appellant) at her parental aunt, Ramliani’s residence during the years 2017 to 2020. It was prayed that legal action should be taken against the person who had committed such an act upon her daughter in such a manner. The case was registered as SLK-PS Case No. 13 of 2021 under Section 6 of the POCSO Act read with 376 AB IPC.

4. During an investigation, the victim girl was sent for medical examination and her statement was recorded under Section 164 CrPC. The Case I.O also recorded the statement of the other prosecution witnesses. The Birth Certificate of the minor child was also seized in the presence of the seizure witnesses. On receiving the medical examination report, the Case I.O found prima facie case against the accused/appellant under Section 6 of the POCSO Act and charge sheet was filed accordingly.

5. The learned trial Court framed charge against the accused/appellant under section 6 of the POCSO Act, which was read out and explained to the accused/appellant, to which he had pleaded not guilty and asked for trial. During trial, as many as 9 (nine) prosecution witnesses were examined. In the examination of the accused/appellant under Section 313 CrPC, he denied the incriminating evidence made out against him. No defence witnesses were produced. After hearing both the parties, the learned trial Court found the accused/appellant guilty and convicted him under Section 6 of the POCSO Act, and sentenced him to undergo RI for 20 (twenty) years. Aggrieved, the appellant has filed the instant appeal from jail.

6. Mr. Victor L. Ralte, learned Amicus Curiae submitted that the prosecution has failed to prove or establish a case against the accused/appellant under Section 6 of the POCSO Act. He submitted that nowhere was the time, month or date of the alleged incident mentioned by the prosecution witnesses. It was only in the FIR that the informant had stated that the incident happened between 2017 and 2020. He submitted that there was no eye-witness to the incident and what PW-1 knew about the incident was what was narrated by the minor victim child/PW-9. Both PW-2 & PW-3 have deposed only to the effect that the victim child used to go to the house of PW-2. PW-4 & PW-5 are the seizure witnesses and PW-6 is the Medical Doctor, who examined the victim child. There is nothing in the evidence of the Doctor as to when the incident had supposedly occurred. The medical examination simply stated that the hymen was ruptured and old. PW-7 is the initial Case I.O and the case was concluded by PW-8, who filed the charge sheet.

7. The learned counsel submitted that the date of birth of the child is not disputed and therefore when her deposition was taken, she was only of about 8 (eight) years. However, no preliminary questions were asked to her. He submitted that the evidence of the victim child cannot be relied upon, since the learned Trial Court had not asked prelimin