20 Yrs Sentence U/S 4(2) POCSO Act Can't Be Imposed When Accused Was Booked Only U/S 4: Gauhati High Court

The Gauhati High Court at Aizwal recently set aside the judgment and sentence order passed by a Trial Court under Section 4 of the POCSO Act, on the ground the charge was framed without specifying the charge to be under 4(1) or 4(2) of the POCSO Act and the Trial Court did not put any preliminary questions to the victim child, before recording her evidence.The division bench comprising Justice Michael Zothankhuma and Justice Marli Vankung observed,“…before recording the evidence of the 6 year old victim, the learned 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. 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.”The prosecution case in brief was that an FIR dated December 23, 2021 was submitted by the informant (PW-1), the mother of the victim, who stated that on the evening of December 23, 2021 at around 3:30 pm, 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.Pursuant to the said FIR, a case was registered against the accused-appellant under Section 4 of the POCSO Act, 2012. The Trial Court convicted the accused-appellant and vide its sentence order dated September 07, 2023 sentenced him to undergo rigorous imprisonment for 20 years and to pay a fine of Rs. 10,000/-. The accused-appellant challenged the said judgment and order of the Trial Court on the ground that the Trial Court did not satisfy itself as to whether the victim child was tutored or not, prior to recording her evidence.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 further submitted that medical report and the evidence given by the Medical Officer (PW-3) has not clarified as to whether the hymen of the victim had been ruptured or not. It was averred that no specific finding has been made by the Medical Officer with regard to whether there was any bruise/laceration/swelling etc. of the external genitalia of the victim girl.The Amicus Curiae further submitted that when the charge framed against the appellant has been made only under Section 4 of the POCSO Act, 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.The Additional Public Prosecutor as well as the Legal Aid Counsel admitted that here has been a mistake committed by the Trial Court in not framing a specific charge under Section 4 (2) of the POCSO Act. Therefore, they submitted that the conviction of the appellant under Section 4, without specifying whether it is relatable to Section 4 (1) or 4 (2) was not proper.The Court noted that in the instant case the charge has been framed only under Section 4 of the POCSO Act, without specifying the charge to be under 4 (1) or 4 (2) of the POCSO Act.“The sentence of the appellant has been made under Section 4, vide Order dated 07.09.2022, for a minimum period of 20 years, though the same can be done only in terms of Section 4 (2) of the POCSO Act. 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,” the Court noted.The Court highlighted that due to the absence of a specific charge, i.e., Section 4(1) or 4(2) of the POCSO Act, at the time of framing of the charge stage and thereafter, there is a likelihood of the appellant being misled into believing that the charge has been framed under Section 4(1) also.It was observed by the Court that 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. The Court further noted that before recording the...

20 Yrs Sentence U/S 4(2) POCSO Act Can't Be Imposed When Accused Was Booked Only U/S 4: Gauhati High Court

Udit Singh

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