JUDGMENT : S.K. Sharma, J. Heard Mr. Lalpianfela Chawngthu, learned counsel for the appellant. Also heard Mrs. Vanneihsiami, learned Addl. Public Prosecutor for the respondent No.1 and Mr. Lalrokunga Pautu, learned Legal Aid Counsel for the respondent No. 2. 2. This Criminal Appeal is filed under Section 374 Cr.P.C./ Section 415 BNSS against the impugned Judgment and Sentence Order dated 14.02.2025 passed by the Presiding Officer/Judge, Court of Fast Track Special Court (Rape &POCSO Act, 2012) Champhai, Mizoram in FTSC (CPI) POCSO: 79/2024. SC No: 31/2022, Crl.Tr.No. 73/2022, KZL PS Case No. 13/2022 dt. 16/3/2022 under Section 6 of the Prevention of Children from Sexual Offences Act, 2012 by which the accused/appellant was convicted and sentenced to undergo Rigorous Imprisonment for a period of 20 (twenty) years and also with a fine of Rs. 5,000/- (Rupees Five Thousand), in default S.I. for 3 (three) months. 3. The prosecution case in brief is that an FIR dated 16.03.2022 was submitted by Prosecution Witness No. 1 (PW-1), who is the mother of the victim. The FIR stated that the accused/appellant had raped the victim on two occasions, once on 15.02.2022 and the second time during the beginning of March, 2022, inside the house of one Mr. Vanlalnghaka. Pursuant to the FIR, Khawzawl P.S. Case No. 13/2022 was registered under Section 6 of the POCSO Act. 4. The case I.O investigated into the case and the complainant and other witnesses were examined. After the investigation was completed, charge-sheet No. D/KZL-PS/2022/194 dated 29/4/2022 was submitted by the Investigating Officer. Accordingly, charge u/s 6 of POCSO Act was framed against the appellant and he was tried before the Presiding Officer/Judge, Court of Fast Track Special Court (Rape &POCSO Act, 2012) Champhai, Mizoram. 5. After the trial was completed, the appellant was convicted vide impugned Judgment & Order dated 11/11/2022 and he was sentenced to undergo Rigorous Imprisonment for a period of 20 (twenty) years and also with a fine of Rs. 5,000/- (Rupees Five thousand), id S.I. for 3 (three) months by the Presiding Officer/Judge, Court of Fast Track Special Court (Rape & POCSO Act, 2012) Champhai, Mizoram vide Sentence Order dt. 15/11/2022. 6. The appellant had then preferred an appeal before the High Court, Aizawl Bench by filing Crl.A No. 12/2023. 5,000/- (Rupees Five thousand), id S.I. for 3 (three) months by the Presiding Officer/Judge, Court of Fast Track Special Court (Rape & POCSO Act, 2012) Champhai, Mizoram vide Sentence Order dt. 15/11/2022. 6. The appellant had then preferred an appeal before the High Court, Aizawl Bench by filing Crl.A No. 12/2023. In the said Criminal Appeal, the High Court was of the view that the entire matter should be decided denovo from the stage of examining the prosecution witnesses and the case was remanded back to the learned Trial Court accordingly by setting aside the impugned Judgment & Order dt. 11/11/2022. 7. Consequent to the Judgment & Order dt. 25/1/2024 passed by the High Court, the learned Trial Court had registered POCSO No.:79/2024 u/s 6 POCSO Act, 2012 afresh against the Appellant. The Ld. Trial Court had re-examined the prosecution witnesses and defense witnesses excluding case I.O and medical doctor and their statements/evidences were recorded. 8. The Ld. Trial Court again convicted the Appellant vide Judgment & Order dt.14/2/2025 and sentenced him as aforesaid. Hence, this appeal. 9. At this stage, the evidence may be discussed. 10. PW-1 i.e. Ms. Lalvenhimi deposed that the accused/appellant, ArronVeng had sexual intercourse with her daughter/Victim X which she heard from her elder sister, Lalhlimpuii. Her husband, Zodinsanga and few others questioned her daughter to ascertain if it was true and her daughter revealed that she was telling the truth and that the accused/appellant had sexual intercourse with her twice already. The first incident took place on 15.02.2022 at around 8p.m at the house construction site of Mr. Lalhmangaihtluanga @Dexa, Arro area and the second incident took place during the initial part of March 2022 though she did not remember the exact date. The victim however mentioned that it happened at the accused/appellant residence. Her family discussed whether to send an emissary to the accused/appellant or to lodge an FIR at the Police Station. As they decided on the latter, they decided to lodge an FIR at Khawzawl Police Station on 16.03.2022. Ext P2 is a copy of FIR and Ext P2(a) is her signature. During cross-examination, PW-1 clarified that the contents of her FIR are as told to her by her elder sibling. Her daughter did not tell her anything about the incident. As they decided on the latter, they decided to lodge an FIR at Khawzawl Police Station on 16.03.2022. Ext P2 is a copy of FIR and Ext P2(a) is her signature. During cross-examination, PW-1 clarified that the contents of her FIR are as told to her by her elder sibling. Her daughter did not tell her anything about the incident. As mentioned in the FIR, her daughter was raped by the accused twice and the accused/appellant was one of the leaders of NGO named YMA; they used to check for intoxicants while the accused was the YMA President and her family has never been caught in this regard. The content of the FIR was drafted by the Police exactly as narrated by her and she only signed her name after reading it out. 11. PW-2 i.e. the victim deposed that she did not remember the exact time when the incident occurred and she stated that it must have happened the year before last when she used to babysit their baby. Initially, the family members th treated her well and she believed that the incident happened on February 15 , 2022, when they were group studying at her friend Jessica's house and she visited the accused/appellant residence while waiting for her other friends who were still studying. The accused/appellant called her to sit at their porch and when she went there, he started touching her breasts with her top on. After a while, he called her up inside Aunty Marini's room and he touched her breasts and private part inside the room. Post this, though she does not remember the exact date, it was during the early month of March that Opuitei asked her to babysit again and she therefore went to the accused/appellant residence once more. Soon after reaching their residence, the accused/appellant called her to an ongoing house construction site located above their home and he took her inside the bathroom. He touched her breasts, took off her pants and touched her private part. He made her lie on the bathroom floor, took off his pants and inserted his private part inside hers. He quickly got up as she felt immense pain. He gave her Rs.100/-later and she went home. He touched her breasts, took off her pants and touched her private part. He made her lie on the bathroom floor, took off his pants and inserted his private part inside hers. He quickly got up as she felt immense pain. He gave her Rs.100/-later and she went home. On 14th March, 2022, PW-3 and she went to her friend Jessica's residence and while they were playing on their rooftop, the accused/appellant called her asking her to collect the items that were dried in the sun. When she went to pick up the pumpkin seeds that were left to dry, the accused/appellant went with her to the rooftop and he took her inside Aunty Marini's room. He touched her breasts again and took off her pants and after taking off his pants, he immediately inserted his private part inside hers. When she pushed him aside saying "It hurts, move away", he got up and he washed himself in the bathroom. As he instructed her to wash up too, she decided to wash up and she therefore entered the bathroom. The accused/appellant was already downstairs while she was in the bathroom. On the night of 13th March, 2022 she went with the accused/appellant to drop off some guests at Vengthar by his vehicle. The guests got down where they were to relocate. The accused/appellant drove further saying that he needs to turn the vehicle around and he took her to the dark spot of agri junction. He touched her breasts there; however, he did not rape her on that occasion. They then returned to their locality by the accused/appellant vehicle. After returning from the accused/appellant home, she went near her friends and told them what the accused/appellant did to her. PW-3 informed her mother who in turn told her relatives about the incidents. During cross-examination, PW-2 clarified that she is 14 years old and was not yet 12 years when the incidents took place. She normally informs her mother first whenever anything happens to her, however, she told her friend first about this incident as she was scared to tell her mother about it. She did not shout when the accused/appellant touched her as she was immensely scared and she shivered which disabled her to shout. She normally informs her mother first whenever anything happens to her, however, she told her friend first about this incident as she was scared to tell her mother about it. She did not shout when the accused/appellant touched her as she was immensely scared and she shivered which disabled her to shout. She further clarified that she did not tell her friend Jessica that the accused/appellant did not do anything to her and that she only made up stories as her relatives lodged an FIR in this regard. Jessica and PW-3 are her good friends and they live in the same locality but they do not stay close by. During re-examination of Ld.Spl.PP, PW-1 clarified that Jessica and she have never played badminton together. 12 . PW-3 i.e. Lalhminghlui deposed that the victim and she are good friends and that she is the first person that the victim told about the incidents. She did not remember the exact date and time when the victim told her about it, however, it was the day that they went to collect debts from their neighbor, Sawmi. They were chatting on the way when the victim uttered 'I won't be able to get married' and she therefore suspected that the victim must have been raped by the accused/appellant, as the victim often visits the home of the accused to babysit their child. She further asked the victim what the accused/appellant had done to her and the victim stated that the accused had sexual intercourse with her at the house construction site of Dex (Lalhmangaihtluanga). She did not remember the exact date but the second incident took place when the victim, their friend Jessica and she were on the rooftop of Jessica's house. The accused/appellant called the victim and she invited to join her, however, they refused as they were scared of the accused/appellant. The accused/appellant and the victim then went to the home of the accused/appellant where he again had sexual intercourse with her. During cross-examination, PW-3 clarified that the victim and Jessica are her close friends and she did not know if the contents of the FIR and the incident that happened to her as told to her by the victim are one and the same or not as she did not read the FIR to know the contents. During cross-examination, PW-3 clarified that the victim and Jessica are her close friends and she did not know if the contents of the FIR and the incident that happened to her as told to her by the victim are one and the same or not as she did not read the FIR to know the contents. The first time the victim told her about it, it was just her who was with the victim. The second time she told her about it, Jessica was also present. When the accused/appellant called the victim to their home, the victim returned after half an hour or so and immediately told them what happened to her and Jessica was also present. They did not hear the victim shout while she was away but she was almost in tears when she came back to them. PW-3 further clarified that the victim and her are from the same locality and she have never known the victim's father to be a drunkard and she does not think that they sell intoxicants. During re-examination by Spl.PP, PW-3 clarified that her aunt, Saihmingi knew that she was to appear before the Court and she called her to her home the night before that night. She asked her to tell the Court that all the incidents took place while she was very young and that she no longer remembers any of it. She said that the accused/appellant was to be jailed for 20 years and that she would have to live with that for the next 20 years. She questioned her asking her if she will not be ashamed, that she will have a boyfriend and will even have a husband and that she will be destroying the life of the accused for 20 whole years. She told her that the accused/appellant is her cousin and that she should pity him. PW-3 told her that Bori(victim) is her sister too and said that she had approached the Court in that manner. 13. PW-4 i.e. Rosaline Lalrinsangi deposed that on 16.03.2022 at 12:00 noon, the original birth certificate of the victim who was 11 years old d/o Zodinpuia of Arro Veng, Khawzawl was seized by Inspr. K.Lalhluna, O.C, Khawzawl Police Station, in her presence at Khawzawl Police Station. She has signed her name as a seizure witness on the property seizure memo. 13. PW-4 i.e. Rosaline Lalrinsangi deposed that on 16.03.2022 at 12:00 noon, the original birth certificate of the victim who was 11 years old d/o Zodinpuia of Arro Veng, Khawzawl was seized by Inspr. K.Lalhluna, O.C, Khawzawl Police Station, in her presence at Khawzawl Police Station. She has signed her name as a seizure witness on the property seizure memo. Ext P-4 is the seizure memo and Ext P-4(a) is her signature. During cross-examination, PW-4 clarified that she had not eye witnessed what actually happened to the victim; however, she had learned what happened to the victim from what the victim stated. PW-4 went with the victim to the Police Station, however, the victim’s mother came to the Police station with the victim’s birth certificate before lodging the FIR. The Police seized the victim's birth certificate in her presence and she had therefore signed her name as a seizure witness. 14. This Court in Crl.A/12/2023 while remanding the matter by Judgment & Order dated 25.01.2021, directed that the entire matter should be decided denovo from the stage of examining the prosecution witnesses. However, as stated earlier, if the witnesses are/were able to communicate in English, the evidence already recorded by them earlier would remain and there would not be any need/requirement for recording their evidence afresh. Accordingly, the case is remanded back to the learned Trial Court for taking evidence of the witnesses afresh, subject to the observation made above. Consequently, the impugned Judgment & Order dated 11.11.2022 passed by the Special Judge (POCSO), Champhai in FTSC (CPI) 42/2022, arising out of Criminal Trial No. 75/2022 is hereby set aside. 15. Pursuant to the aforesaid Judgment of this Court, the learned Trial Court proceeded with a denovo examination of the witnesses except for two official witnesses but dispensed with the examination of the accused under Section 313 Cr.PC which reads as follows:- “ 313. 15. Pursuant to the aforesaid Judgment of this Court, the learned Trial Court proceeded with a denovo examination of the witnesses except for two official witnesses but dispensed with the examination of the accused under Section 313 Cr.PC which reads as follows:- “ 313. Power to examine the accused.-( 1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court- (a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b). (2) No oath shall be administered to the accused when he is examined under sub-section (1). (3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. [(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.]” 16. Once the Appellate Court has directed a denovo trial from the stage of examination of the prosecution witnesses, then all previous proceedings starting from that stage till the final Judgment & Order are rendered non-est in the eye of law, except to the extent that may be indicated in the Appellate Judgment itself. Therefore, the learned Trial Court could not have dispensed with the examination of the accused under Section 313 Cr.PC wherein all the incriminating circumstances appearing in the evidence against him were required to be put to him in detail. Therefore, the learned Trial Court could not have dispensed with the examination of the accused under Section 313 Cr.PC wherein all the incriminating circumstances appearing in the evidence against him were required to be put to him in detail. The reason assigned by the learned Trial Court by its order dated 11.11.2022 for dispensing with the examination of the accused under Section 313 Cr.PC is that the evidence recorded in the denovo trial was substantially the same as that recorded earlier. Even going along with the said justification for a while, a perusal of the statement of the accused recorded before the denovo trial, that is, at the end of the previous trial would go show that the same was done in a most perfunctory manner and did not include all the incriminating circumstances that had appeared in the evidence at the trial. The victim is PW-2 in the denovo trial and she deposed to as many as four incidents where either sexual assault or penetrative sexual assault took th place, the dates having been mentioned as 15 February, 2022, early part of th th March, 13 March, 2022 and 14 March, 2022 but in the defence statement recorded earlier, the learned Trial Court put only two incidents to the accused. However, when recording the reasons for his findings, the learned Trial Court appears to have relied upon all the circumstances appearing in the evidence against the accused including those which were not put to him in his previous examination. The reasoning of the learned Trial Court is reflected below: “As already stated above the victim clearly stated before the court that the accused had committed penetrative sexual assault twice upon her and also sexually assaulted on the other occasion also. The statement of the victim is neither rebutted nor falsified during her cross-examination by the Ld.D/L, her statement is strongly corroborated by the medical report prepared by the medical officer who examined the victim and the accused. All other evidences are also in the line with that of the prosecutrix. The statement of defencewitnesses are only presumptions and opinions and has no any legal stand. Besides all the defence witnesses other than Dw-6 are near relatives of the accused and they are interested person. The statement of Dw-6 is also believe to be a tutor statement and has no any supporting material. The statement of defencewitnesses are only presumptions and opinions and has no any legal stand. Besides all the defence witnesses other than Dw-6 are near relatives of the accused and they are interested person. The statement of Dw-6 is also believe to be a tutor statement and has no any supporting material. Furthermore, her statement of alleged accusation by her of the victim is strongly denied by the victim. After careful consideration of all the materials, evidences and points of argument it is decided by this court that there is no any fresh materials/evidences which warrant for changing/altering the previous judgment. Furthermore, the statement of the victim to the extend of penetrative sexual assault twice and sexual assault once upon her by the Accused on a particular occasions inspires confidence and are found to be reliable and trustworthy.” 17. The evidence of PW-3 that was put to the accused/appellant was at best vague having no reference to the places where the incidents allegedly took place and which were clearly deposed to by the PW-3. Furthermore, the learned Trial Court had failed to put any questions to the accused with regard to the evidence of PW-1/the informant although the evidence of PW-1 also discloses incriminating circumstances against the accused and as already stated before herein, the learned Trial Court had relied on all the circumstances referred to above as appearing in the evidence of the prosecution witnesses. It is of course a settled law that the incriminating circumstances that are not put to the accused during his examination under Section 313 Cr.PC cannot be taken into consideration while deciding the guilt of the accused. Therefore not only had the learned Trial Court acted upon or relied upon or took into consideration his first statement of defence that had no longer any legal existence after commencement of the denovo trial, the said statement itself evidently falls woefully short of the requirements of law, that is the necessity of putting all the incriminating circumstances in detail before the accused and the prejudice caused to the accused thereby can be inferred by the Court. We also cannot help but observe that the learned Trial Court had let in inadmissible evidence through the PW-7/I.O who was allowed to deposed in detail on what the witnesses had stated in their statements recorded under Section 161 Cr.PC, which is completely contrary to the bar imposed by and procedure mandated by Section 162 Cr.PC, thereby also causing grave prejudice to the accused/appellant inasmuch as the learned Trial Court, as it appears, could not have been left uninfluenced by such inadmissible testimony of the I.O, as a perusal of the impugned Judgment would suggest. 18. For the aforesaid reasons, we have no hesitation in setting aside the impugned Judgment & Order and direct for fresh examination of the accused/appellant under Section 313 Cr.PC by putting all material questions to the accused/appellant which may be regarded as incriminating circumstances as appearing in the evidence at the denovo trial and thereafter to pass judgment afresh after hearing the parties. We also direct, in the interest of fairness, that the further proceedings in this case will be conducted by the learned District & Sessions Judge, Champhai. If the TCR is in original, let the same be returned back forthwith.