Evidence Of Child Victim Can’t Be Sole Basis For POCSO Conviction If Preliminary Questions Were Not Put To Her: Gauhati HC
The Gauhati High Court clarified that the evidence of the victim child cannot be the sole basis for convicting the appellant accused as before recording the evidence of the 6-year-old victim, the Trial Court did not put any preliminary questions to the child, to satisfy itself as to whether she had the capacity/capability to understand the questions put to her and whether she could give rational answers to the same.
The High Court remanded the POCSO matter back to the Trial Court where the accused was sentenced to undergo imprisonment for 20 years under Section 4 of the POSCO Act.
The Division Bench comprising Justice Michael Zothankhuma & Justice Marli Vankung held, “This was a necessity, so as to take away any doubt, with regard to the understanding capacity of the victim child and to do away with any doubt regarding the child having being tutored, inasmuch as, the evidence of the Medical Officer does not inspire confidence.”
Amicus Curiae represented the Petitioner while Addl. PP represented the Respondent.
The appellant accused had approached the High Court challenging the Judgment of the Trial Court convicting the appellant under Section 4 of the POCSO Act, 2012 and sentencing him to undergo Rigorous Imprisonment for 20 years and to pay a fine of Rs. 10,000.
An FIR, in this case, was submitted by the informant (PW-1), the victim’s mother who stated that her 6 year old daughter visited the house of the appellant and came home with a frightened look on her face. On questioning her, her daughter told her that the appellant had inserted his private parts into her private parts and told her not to tell her mother about it or else she would be scolded badly. A Case came to be registered under Section 4 of the POCSO Act. After examining the witnesses, the Investigating Officer submitted a Charge-sheet and the appellant was thereafter sentenced under Section 4 to undergo Rigorous Imprisonment for 20 years and to pay a fine of Rs. 10,000.
The Amicus Curiae submitted that unless the satisfaction of the Trial Judge is recorded, with regard to the capability of the victim child to understand questions put to her and that the victim child was capable of giving rational answers, the conviction of the appellant, solely on the basis of the evidence of the child witness was not sustainable. It was also contended that when the charge framed against the appellant had been made only under Section 4, without specifying whether it should be under Section 4 (1) or 4 (2), which carries different minimum sentences, the sentence imposed upon the appellant under Section 4 (2), without convicting the appellant under Section 4 (2) was not justified.
Noting that the sentence of the appellant had been made under Section 4, for a minimum period of 20 years, though the same could be done only in terms of Section 4 (2), the Bench said, “As the charge was framed only under Section 4 of the POCSO Act, we are of the view that the appellant could not have been sentenced for a term of 20 years under Section 4 of the POCSO Act, as the same can be done only in terms of Section 4 (2). Due to the above reasons, it appears that the appellant was not given a proper opportunity to defend himself, with regard to the charge and sentence apparently given under Section 4 (2) of the POCSO Act.”
“Further, when there is a serious lacuna which could cause prejudice to the appellant, the benefit of doubt should be given to the accused, as he could have been sentenced for a minimum of 10 years under Section 4 (1) of the POCSO Act”, it added.
It was also noticed that before recording the evidence of the 6 year old victim, the Trial Court did not put any preliminary questions to the child, to satisfy itself as to whether the victim child had the capacity/capability to understand the questions put to her and as to whether she could give rational answers to the same. As per the Bench, this was a necessity, so as to take away any doubt, with regard to the understanding capacity of the victim child and to do away with any doubt regarding the child having being tutored, inasmuch as, the evidence of the Medical Officer did not inspire confidence.
Reliance was placed upon the judgment of the Supreme Court in Pradeep vs. State of Haryana in AIR 2023 SC 3245, wherein it has been held that the proviso to Section 4(1) of the Oaths Act provides that unless satisfaction as required by the proviso is recorded, an oath cannot be administered to a child witness below 12 years. However, in view of Section 118 of the Evidence Act, the Trial Judge is under a duty to record his opinion that the child was able to understand the questions put to her.
In light of such circumstances, the Bench held, “In view of the above reasons, we are of the view that in this particular case, the evidence of the victim child cannot be the sole basis for convicting the appellant, unless the safeguards mentioned above are undertaken.”
The Bench set aside the sentence order and remanded the matter back to the Trial Court for taking up the proceedings from the state of framing of charge.
Cause Title: Sh. Laldingluaia v. State of Mizoram and Anr. [CRL.A(J)/2/2024]
Appearance:
Appellant: Amicus Curiae
Respondent: P.P./Addl.PP, Mizoram for R