JUDGMENT Michael Zothankhuma, J. Heard Mr. Zoramchhana, learned counsel for the appellant. Also heard Mrs. Mary L. Khiangte, learned Addl. Public Prosecutor for the respondent No. 1 and Mrs. Emily L. Chhangte, learned Amicus Curiae for the respondent No.2/informant. 2. This is an appeal against the Judgment & Order dated 11.06.2024 passed by the Presiding Officer, Fast Track Special Court, POCSO Act , 2012, Aizawl in Sessions Case No. 31/2020 arising out of Crl. Trial No. 626/2020, by which the appellant has been convicted under Section 6 of the POCSO Act and has been sentenced to undergo Rigorous Imprisonment for a period of 20 years and to pay a fine of Rs. 3000/-, in default of payment of fine, Rigorous Imprisonment for a period of two months. 3. The prosecution case is that an FIR dated 13.01.2020 was submitted by the mother of the victim boy who was five years old, which was to the effect that the victim boy had expressed pain in his anus on 11.01.2020, while his bottom was being washed after defecation. On being asked, the victim boy told his mother, the informant (PW-1), that some time in the month of December 2019, one boy, Mapuia, had inserted his finger and a stick in the anus of the victim, while another boy namely, Rammuanpuia had pulled down the pants of the victim boy. All the above had been done as per the instruction of the appellant. In pursuance to the FIR, Aizawl PS Case No. 25/2020 dated 13.01.2020 under Section 6 of the POCSO Act was registered. Thereafter, the I.O started the investigation and even had the victim examined by a Medical Officer, who made a medical report dated 13.01.2020 which stated no bruise or laceration was seen, as the incident had occurred 18 days back. 4. The I.O, after investigation of the case, having found a prima facie case against the appellant under Section 6 of the POCSO Act , filed the chargesheet. The learned Trial Court thereafter framed charge under Section 6 of the POCSO Act against the appellant which the appellant denied and claimed to be tried. Thereafter, 11 prosecution witnesses were examined by the learned Trial Court. The learned Trial Court thereafter framed charge under Section 6 of the POCSO Act against the appellant which the appellant denied and claimed to be tried. Thereafter, 11 prosecution witnesses were examined by the learned Trial Court. After examination of the appellant was done under Section 313 CrPC, the learned Trial Court came to a finding that the appellant had committed the offence under Clause (m) of Section 5 of the POCSO Act , 2012. Accordingly, the appellant was convicted under Section 6 of the POCSO Act . 5. The counsel for the appellant submits that a perusal of the FIR, the statement made by the victim under Section 164 CrPC and the evidence of the prosecution witnesses clearly shows that the appellant had not committed any act under Section 6 towards the victim and at best, it could be said that the appellant had abetted the crime, but had not been the one to make any sexual act upon the victim. Neither had the appellant made the victim boy do any sexual act towards the appellant himself or in respect of any other person. 6. The appellant’s counsel submits that in his evidence, the victim (PW-2) had stated, ‘Y’ had poked him in the anus with his stick. In the FIR, it was stated that ‘Y’ had poked the victim’s anus with a stick and with his finger. In the statement made by the victim under Section 164 CrPC, the victim had stated that the appellant had inserted a bamboo into the victim’s anus. ‘Y’ is a friend of the victim and a minor. 7. The counsel for the appellant submits that the differing versions of how the incident had occurred shows the unreliability of the victim as a witness and as such, the appellant could not have been convicted under Section 6, especially when the evidence did not show that the appellant had done any sexual act/deed upon the victim. He accordingly submits that the impugned Judgment & Order should be set aside. 8. Mrs. Mary L. Khiangte, learned Addl. Public Prosecutor, on the other hand submits that the appellant having instigated the minor boy ‘Y’ to poke the victim’s anus with the stick, there was no infirmity with the conviction of the appellant under Section 6 of the POCSO Act , 2012. 9. Mrs. 8. Mrs. Mary L. Khiangte, learned Addl. Public Prosecutor, on the other hand submits that the appellant having instigated the minor boy ‘Y’ to poke the victim’s anus with the stick, there was no infirmity with the conviction of the appellant under Section 6 of the POCSO Act , 2012. 9. Mrs. Emily L. Chhangte, learned Amicus Curiae appearing for the respondent No. 2/informant submits that though the learned Trial Court has wrongly framed the charge against the appellant under Section 6 of the POCSO Act , the fact remains that the poking of the stick on the victim’s anus by the friends of the victim had been done at the instigation of the appellant, who was a major. Being afraid of the appellant, the minor boy ‘Y’ had acted as per the wishes of the appellant. As such, the guilt and complicity of the appellant in the crime could not be wished away. She submits that when there is a complaint of rape or sexual molestation, the evidence of the victim should not be viewed with spectacles fitted with lenses tinged with doubt, disbelief or suspicion. She also submits that the plea about lack of corroboration does not subsist, as the evidence of a victim can be acted upon without corroboration. In this regard, she has relied upon the Judgment of the Apex Court in the Case of State of Himachal Pradesh Vs. Sanjay Kumar Alias Sunny reported in (2017) 2 SCC 51 10. The counsels for the respondents thus submit that the impugned Judgment and Order should not be interfered with. 11. We have heard the learned counsels for the parties. 12. As can be seen from the documents on record and the evidence adduced, no prosecution witness or the victim himself has testified that the appellant had poked the victim’s anus with a stick or with his finger. In fact, the evidence of the victim is to the effect that the victim had gone alongwith ‘Y’ and ‘Z’, who are friends of the victim to see a JCB (Excavator) being operated. The victim boy and his friends ‘Y’ and ‘Z’ were all minors. Thereafter, the appellant came to where they were and pulled down the pants of the victim. The appellant then told ‘Y’ to pick the stick and made him poke the victim’s anus with the stick. 13. The victim boy and his friends ‘Y’ and ‘Z’ were all minors. Thereafter, the appellant came to where they were and pulled down the pants of the victim. The appellant then told ‘Y’ to pick the stick and made him poke the victim’s anus with the stick. 13. The evidence of ‘Y’ is to the effect that he alongwith the victim and ‘Z’ had gone to see a JCB in operation. Thereafter, ‘Z’ pulled down the victim’s pants and he (Y) poked the anus of the victim. In his cross examination, ‘Y’ (PW-3) stated that the appellant did not say anything to him nor did he make him do anything. ‘Y’ only played with the victim. 14. The evidence of ‘Z’ (PW-4) is to the effect that he alongwith the victim and ‘Y’ had gone to see a JCB at work. While playing in the soil, ‘Z’ pulled down the victim’s pants. In his cross examination, ‘Z’ stated that he did not know whether the appellant was present when they were near the JCB. He also stated that the appellant had not asked him to pull down the victim’s pants. ‘Z’ also stated that he saw ‘Y’ poking the anus of the victim, though he did not know the reason for the same. 15. The evidence of PW-13, who is the I.O of the case is to the effect that after examining the victim and the other children, who were instigated by the appellant to poke the victim’s anus, he found a prima facie case under Section 6 of the POCSO Act established against the appellant. As such, he filed a chargesheet against the appellant. 16. The evidence of the informant (PW-1), who is the mother of the victim boy, is to the effect that on coming to know that ‘Y’ had poked the anus of the victim, she went to the house of ‘Y’ and asked him as to what had happened. ‘Y’ agreed that he had poked the victim anus, as the appellant had made him do it. He also stated that another friend of theirs i.e. ‘Z’ had pulled down the pants of the victim because the appellant had asked him to do it. 17. The evidence of the other prosecution witnesses do not have any real bearing on the facts of the case, inasmuch as, there were either seizure witnesses or hearsay witnesses. He also stated that another friend of theirs i.e. ‘Z’ had pulled down the pants of the victim because the appellant had asked him to do it. 17. The evidence of the other prosecution witnesses do not have any real bearing on the facts of the case, inasmuch as, there were either seizure witnesses or hearsay witnesses. The only eye witnesses to the alleged crime could/would be the two friends of the victim i.e. ‘Y’ and ‘Z’, besides the appellant herein. However, as can be seen from the evidence adduced by the witnesses, there is nothing to show that the appellant had poked the anus of the victim. Further, there is nothing to show that the appellant had made the victim boy do any sexual act on him or in respect with any other person. 18. The evidence of PW-1 is to the effect that ‘Y’ had poked the anus of the victim, while ‘Z’ had pulled down the pants of the victim. However, the evidence of PW- 3 and PW-4 is to the effect that the appellant did not say or do anything against the victim. It is only the victim who has stated that the appellant had told ‘Y’ to poke the victim’s anus with a stick. However, as can be seen from the other documents on record, one of them being the FIR, it has been stated therein that ‘Y’ had poked the victim’s anus with a stick and his finger. However, the victim’s statement under Section 164 CrPC states that the appellant had pulled down his pants and had inserted a stick into his anus. 19. We are of the view that the discrepancies in the statement made by the victim in his evidence and statement made under Section 164 CrPC, read with the contents of the FIR and the evidence of PW-1, PW-3 and PW-4 does not inspire the confidence of the Court. The discrepancies are major discrepancies and go to the core of the issue, with regard to whether the appellant was the person who did the illegal act and whether the victim is a reliable witness. 20. The discrepancies are major discrepancies and go to the core of the issue, with regard to whether the appellant was the person who did the illegal act and whether the victim is a reliable witness. 20. The question whether the victim child had been tutored or was able to understand the questions put to him and was competent to depose, required the Trial Court to ask preliminary questions to the victim child, with a view to ascertain whether the minor could understand the question put to him and was in a position to give rational answers. However, in the present case, no such exercise was done by the learned Trial Court prior to recording the evidence of the victim child. As such, the discrepancies in the evidence of the victim child vis-a-vis the statement made under Section 164 CrPC, in our view, gives rise to an inference that the victim child was not a wholly reliable witness. In any event, the evidence of the victim does not implicate the appellant, so as to attract Section 5(m) of the POCSO Act individually. 21. In the case of Pradeep Vs. State of Haryana, reported in 2023 SCC Online SC 777, the Supreme Court has held at paragraphs 9 and 10 as follows:- “9. It is a well-settled principle that corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. A child witness of tender age is easily susceptible to tutoring. However, that by itself is no ground to reject the evidence of a child witness. The Court must make careful scrutiny of the evidence of a child witness. The Court must apply its mind to the question whether there is a possibility of the child witness being tutored. Therefore, scrutiny of the evidence of a child witness is required to be made by the Court with care and caution. 10. Before recording evidence of a minor, it is the duty of a Judicial Officer to ask preliminary questions to him with a view to ascertain whether the minor can understand the questions put to him and is in a position to give rational answers. The Judge must be satisfied that the minor is able to understand the questions and respond to them and understands the importance of speaking the truth. Therefore, the role of the Judge who records the evidence is very crucial. The Judge must be satisfied that the minor is able to understand the questions and respond to them and understands the importance of speaking the truth. Therefore, the role of the Judge who records the evidence is very crucial. He has to make a proper preliminary examination of the minor by putting appropriate questions to ascertain whether the minor is capable of understanding the questions put to him and is able to give rational answers. It is advisable to record the preliminary questions and answers so that the Appellate Court can go into the correctness of the opinion of the Trial Court.” 22. In the case of State of Himachal Pradesh Vs. Sanjay Kumar Alias Sunny (Supra) , the Supreme Court has held that it can by no means be suggested that whenever a charge of rape is made, when the victim is a child, it has to be treated as a Gospel truth and that the accused has to be convicted. 23. In the case of Radhey Shyam Vs. State of Rajasthan , reported in (2014) 5 SCC 389 , the Supreme Court has held that the evidence of a child witness must be evaluated more carefully and with greater circumspection. 24. The above being said, it is seen that the Medical Report, which has apparently being exhibited as Exhibit 6, states that no bruise or laceration was seen on the victim, as the incident had occurred 18 days back. 25. The evidence clearly shows that there was no act done by the appellant against the victim boy, so as to attract Section 5(m) of the POCSO Act . The examination of the appellant under Section 313 CrPC shows that the Trial Court had asked questions to the appellant, by wrongly assuming that there was evidence proving that the appellant had indulged in aggravated penetrative sexual assault, by poking the victim’s anus with a stick and finger. As there is no evidence proving that the appellant had done any sexual act on the victim boy or making the victim boy do a sexual act, the provisions of Section 3 of the POCSO Act alongwith Section 5(m) of the POCSO Act is not attracted in the present case. Section 3 and 5 (m) of the POCSO Act are reproduced here below as follows:- “ 3. Section 3 and 5 (m) of the POCSO Act are reproduced here below as follows:- “ 3. Penetrative sexual assault.— A person is said to commit “penetrative sexual assault” if— (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person. 5. Aggravated penetrative sexual assault.- (m) whoever commits penetrative sexual assault on a child below twelve years; or” 26. The provision of Section 3 and Section 5 (m) of the POCSO Act could have been read into the facts of the present case, if a charge of abetment under Section 16 of the POCSO Act had also been made/framed. However, the same has not been done in the present case. On that count alone, we find that the impugned Judgment and Order is liable to be set aside. 27. Besides the above, the fact remains that there has been inconsistencies in the statements of the witnesses and the case sought to be projected by the prosecution. 28. On considering all the above facts, we are of the view that the learned Trial Court had wrongly framed charge solely under Section 6 of the POCSO Act and has also wrongly convicted the appellant. There is no evidence of the appellant having violated Section 5(m) of the POCSO Act , 2012. We accordingly hold that the prosecution has not been able to prove the guilt of the appellant. The appellant is accordingly acquitted from the charge under Section 6 of POCSO Act , 2012. 29. There is no evidence of the appellant having violated Section 5(m) of the POCSO Act , 2012. We accordingly hold that the prosecution has not been able to prove the guilt of the appellant. The appellant is accordingly acquitted from the charge under Section 6 of POCSO Act , 2012. 29. The impugned Judgment and Order dated 11.06.2024 passed by Court of Presiding Officer, Fast Track Special Court, POCSO Act , 2012, Aizawl in Session Case No. 31/2020 is hereby set aside. The appellant should be released from Jail immediately. 30. Send back the case record. 31. In appreciation of the assistance rendered by the learned Amicus Curiae, Mrs. Emily L. Chhangte, the fee payable to her @ Rs. 8000/- (Rupees eight thousand) only shall be paid by the Mizoram State Legal Services Authority.