20 Years Punishment U/S 4(2) POCSO Act Not Applicable Only When Accused Arrested U/S 4: Gauhati High Court

The Gauhati High Court in Aizwal recently set aside the judgment and penalty order passed by a Trial Court under Section 4 of the POCSO Act on the grounds that the charge was framed without stating that the charge fell under Section 4(1) or 4(2). Under the POCSO Act, the Supreme Court did not ask any preliminary questions to the child victim before recording his evidence.

The dividing bench consists of: Judge Michael Zothankhuma And Judge Marli Vankung observed,

“…Before recording the statement of the 6-year-old victim, the learned Supreme Court did not ask any preliminary questions to the child victim to satisfy himself as to whether the child victim had the capacity/ability to understand the questions put to him. about whether he can give rational answers to this. This was necessary to eliminate any doubt as to the understanding capacity of the child victim and to eliminate any doubt as to the child’s education since the Medical Officer’s evidence did not inspire confidence. .”

Briefly, the prosecution has alleged that an FIR dated 23 December 2021 was lodged by the informant (PW-1), the mother of the victim, and that on 23 December 2021, at around 3:30 pm, her 6-year-old girl visited the house of the applicant and came home with a fearful expression on her face. When her daughter questioned her, she said that the appellant inserted his private parts into her private parts and told her not to tell her mother about it, otherwise she would be scolded badly.

Pursuant to the said FIR, a case was registered against the accused-appellant under Section 4 of the POCSO Act, 2012. The Supreme Court found the accused-appellant guilty and executed the sentencing order dated September 07, 2023, sentencing him to rigorous imprisonment for 2012. 20 years and to pay a fine of Rs. 10,000/-.

The accused-appellant challenged the said order and order of the Supreme Court on the ground that the Supreme Court was not satisfied as to whether the victim child had received education before recording his evidence.

The Amicus Curiae held that the appellant’s conviction was valid on that count alone, unless the Trial Judge’s satisfaction was recorded as to the child victim’s ability to understand the questions put to him and the ability of the child victim to give rational answers. The basis for the child witness’s testimony was not sustainable.

It was further alleged that the medical report and the statement given by the Medical Officer (PW-3) did not clarify whether the hymen of the victim had been ruptured or not. There is no bruise/cut/swelling etc. on the external genitalia of the victim girl. It was stated that no specific determination was made by the Health Officer regarding whether or not the disease occurred.

The Amicus Curiae also held that if the charge against the appellant is made only under Section 4 of the POCSO Act, without stating that it should be under Section 4(1) or 4(2), which entails different minimum sentences, without convicting the appellant under Section 4(2) , the penalty imposed on the appellant under Section 4(2) is not justified.

Additional Public Prosecutor and Legal Aid Counsel herein admitted that the Principal Court had erred in not framing a particular charge under Section 4(2) of the POCSO Act. They therefore submitted that the conviction under Section 4 was not appropriate, without stating whether the appellant was linked to Section 4 (1) or 4 (2).

The court noted that in the present case, the charge was framed only under Section 4 of the POCSO Act, without stating that the charge was framed under Section 4 (1) or 4 (2) of the POCSO Act.

“The appellant’s sentence has been imposed for a minimum period of 20 years under Section 4 of the Order dated 07.09.2022, but the same can be done only under Section 4 (2) of the POCSO Act. Since the charge is framed only under Section 4 of the POCSO Act, we are of the view that the appellant cannot be imprisoned for a period of 20 years under Section 4 of the POCSO Act; Section 4 (2). For the above reasons, it appears that the appellant was not given a proper opportunity to defend himself in respect of the charge and sentence expressly imposed under Section 4(2) of the POCSO Act,” the Court observed.

The court was misled into believing that in the absence of a specific charge (Sections 4(1) or 4(2) of the POCSO Act), during and after the framing of the charge stage, the appellant was also framed under Section 4(1).

The court observed that in case of a serious lacuna which could prejudice the appellant, the accused should be given the benefit of doubt as he could be sentenced to imprisonment for at least 10 years under Article 4(1). POCSO Act.

The court further noted that before recording the statement of the 6-year-old victim, the Trial Court did not ask any preliminary questions to the child to satisfy itself as to whether the child victim had the capacity or ability to understand the questions put to him. and whether he can give rational answers to it.

“Considering the above reasons, we are of the view that in this particular case, the testimony of the child victim cannot be the sole basis for convicting the appellant unless the above-mentioned safeguards are obtained. “We are of the view that the matter should be reconsidered by the learned Supreme Court after all the requirements/procedures to be followed in the law are fulfilled,” the court said.

Therefore, the Court annulled the impugned decision and order and remanded the case to the Court of First Instance to take over the trial from where the charge was made.

Quote: 2024 LiveLaw (Gau) 89

Case Title: Ş. Laldingluaia v. State of Mizoram and Anr.

Case No.: CRL.A(J)/2/2024

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