The requirement for preliminary questioning and administering oaths to a child witness mainly applies to minors under 12. For older minors, their testimony, if consistent and corroborated by independent medical evidence or a clear judicial admission by the accused, is admissible and sufficient to support a conviction.

JUDGMENT :

M. Zothankhuma, J.

Heard Ms. Emily L. Chhangte, learned Amicus Curiae for the appellant.Also heard Ms. Mary L. Khiangte, learned Addl. PP appearing for respondent No. 1 and Mr. H. Zodinsanga, learned Legal Aid Counsel for respondent No. 2.

2. This is an appeal challenging the impugned Judgment and Order dated 30.09.2024, passed by the learned Special Judge, POCSO, Lunglei in Criminal Trial No. 362/2023, arising out of Lunglei P.S Case No. 145/2023, by which the appellant has been convicted under Section 6 of the POCSO Act vide Judgment and Order dated 30.09.2024 and sentenced to undergo R.I for 20 years with a fine of Rs. 3,000/-, in default S.I for 10 days.

3. The appellant’s counsel submits that the appellant, who was 21 years of age on the date of the incident, had been convicted for having raped his younger sister, aged 14 years on 29.07.2023, in the house of the appellant and victim’s parents. She also submits that the appellant had admitted to having committed sexual penetrative assault upon the victim in his 313 Cr.PC examination. The learned Amicus Curiae also submits that though the statement of the victim recorded under Section 164 Cr.PC corroborates the testimony of the victim given before the Trial Court, the statement of the victim under Section 164 Cr.PC had been made without administering oath to the victim and/or asking the victim preliminary questions by the recording Magistrate, prior to recording the statement of the victim. The learned Amicus Curiae submits that it was the duty of the recording Magistrate to satisfy herself that the victim was able to understand the questions put to her and that the victim could answer the said questions rationally. The same not being done, the statement of the victim under Section 164 Cr.PC cannot be given any value during trial or before this Court. In this regard, she has relied upon the decision of the Supreme Court in the Case of Pradeep Kumar Vs. State of Haryana , reported in 2023 19 SCC 221

4. The appellant’s counsel thus submits that in view of the victim’s statement under Section 164 Cr.PC having been recorded without administering oath to the 14 year old victim and in the absence of preliminary questions put to her, the statement therein could not have any corroborative value to the testimony of the victim. She accordingly submits that the impugned Judgment should be set aside.

5. Ms. Mary L. Khiangte, learned Addl. PP and Mr. H. Zodinsanga, learned Legal Aid Counsel for respondent No. 2, submit that the evidence of the victim is truthful and should inspire the confidence of the Court, in view of the fact that the appellant in his Section 313 Cr.PC examination, has also admitted to having committed penetrative sexual assault upon his sister, the victim. Further, the testimony of the victim has not been shaken by the appellant. They also submit that prior to recording the statement of a victim under Section 164 Cr.PC, it is not mandatory to administer oath to the victim making the statement. They also submit, that as there is corroboration of the testimony of the victim by the admission made by the appellant under Section 313 Cr.PC, wherein, the appellant admitted to having committed penetrative sexual assault upon his younger sister, the impugned Judgment should not be interfered with.

6. We have heard the learned counsels for the parties.

7. Section 164 (5) Cr.P.C. provides that any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence, as is in the op