Page No.# 1/6 GAHC030005832025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRL.A(J)/40/2025 Sh. Malsawmtluanga S/o Thanglalmuana R/o Farm Veng, Lunglei VERSUS State of Mizoram and Anr. Aizawl Advocate for the Petitioner : Mrs. Emily L. Chhangte (Amicus Curiae) Advocate for the Respondent : P.P./Addl.PP, Mizoram for R1 Page No.# 2/6 BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA HONOURABLE MR. JUSTICE SANJEEV KUMAR SHARMA Advocate for the appellant : Mrs. Emily L. Chhangte, Amicus Curiae Advocate for the respondents: Mr. H. Zodinsanga, Legal Aid Counsel Mrs. Linda L. Fambawl, PP Date of hearing and judgment : 04.06.2026 JUDGMENT AND ORDER (Oral) (M. Zothankhuma, J) Heard Ms. Emily L. Chhangte, learned Amicus Curiae for the appellant. Also heard Ms. Mary L. Khiangte, learned Addl. PP appearing for respondent No. 1 and Mr. H. Zodinsanga, learned Legal Aid Counsel for respondent No. 2. 2. This is an appeal challenging the impugned Judgment and Order dated 30.09.2024, passed by the learned Special Judge, POCSO, Lunglei in Criminal Trial No. 362/2023, arising out of Lunglei P.S Case No. 145/2023, by which the appellant has been convicted under Section 6 of the POCSO Act vide Judgment and Order dated 30.09.2024 and sentenced to undergo R.I for 20 years with a fine of Rs. 3,000/-, in default S.I for 10 days. 3. The appellant’s counsel submits that the appellant, who was 21 years of age on the date of the incident, had been convicted for having raped his younger sister, aged 14 years on 29.07.2023, in the house of the appellant and victim’s parents. She also submits that the appellant had admitted to having committed sexual penetrative assault upon the victim in his 313 Cr.PC Page No.# 3/6 examination. The learned Amicus Curiae also submits that though the statement of the victim recorded under Section 164 Cr.PC corroborates the testimony of the victim given before the Trial Court, the statement of the victim under Section 164 Cr.PC had been made without administering oath to the victim and/or asking the victim preliminary questions by the recording Magistrate, prior to recording the statement of the victim. The learned Amicus Curiae submits that it was the duty of the recording Magistrate to satisfy herself that the victim was able to understand the questions put to her and that the victim could answer the said questions rationally. The same not being done, the statement of the victim under Section 164 Cr.PC cannot be given any value during trial or before this Court. In this regard, she has relied upon the decision of the Supreme Court in the Case of Pradeep Kumar Vs. State of Haryana, reported in 2023 19 SCC 221. 4. The appellant’s counsel thus submits that in view of the victim’s statement under Section 164 Cr.PC having been recorded without administering oath to the 14 year old victim and in the absence of preliminary questions put to her, the statement therein could not have any corroborative value to the testimony of the victim. She accordingly submits that the impugned Judgment should be set aside. 5. Ms. Mary L. Khiangte, learned Addl. PP and Mr. H. Zodinsanga, learned Legal Aid Counsel for respondent No. 2, submit that the evidence of the victim is truthful and should inspire the confidence of the Court, in view of the fact that the appellant in his Section 313 Cr.PC examination, has also admitted to having committed penetrative sexual assault upon his sister, the victim. Further, the testimony of the victim has not been shaken by the appellant. They also submit Page No.# 4/6 that prior to recording the statement of a victim under Section 164 Cr.PC, it is not mandatory to administer oath to the victim making the statement. They also submit, that as there is corroboration of the testimony of the victim by the admission made by the appellant under Section 313 Cr.PC, wherein, the appellant admitted to having committed penetrative sexual assault upon his younger sister, the impugned Judgment should not be interfered with. 6. We have heard the learned counsels for the parties. 7. Section 164(5) Cr.P.C. provides that any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence, as is in the opinion of the Magistrate, best fitted to the circumstances of the case, and the Magistrate shall have power to administer oath to the person whose statement is so recorded. 8. A perusal of Section 164(5) only provides that Magistrate shall have the power to administer oath to the person who makes a statement, without making it mandatory to have the statement recorded after administering oath to the maker of the statement. 9. In the case of Pradeep Kumar (Supra), the Supreme Court held that before recording the evidence of a minor, it was the duty of the Judicial Officer to ask preliminary questions to a witness below 12 years, to satisfy himself as to whether the minor could understand the questions put to him/her and was in a position to give rational answers. 10. Section 118 of the Evidence Act provides that a child witness is competent to depose unless the court considers that he is prevented from understanding Page No.# 5/6 the questions put to him, or from giving rational answers by reason of his tender age. Section 4 of the Oaths Act, 1969 provides that unless satisfaction as required by the proviso to Section 4(1) is recorded, an oath cannot be administered to a child below 12 years. Thus, the Supreme Court in Pradeep Kumar (Supra) held that there was no requirement of giving oath to a child below 12 years, unless the child was asked preliminary questions, which allowed the Judicial Officer to satisfy himself that the child understood the questions put to him and to give rational answers to the same. 11. In the present case, the victim was 14 years old at the relevant time. She has clearly given her evidence stating that she had been raped by her brother. Though the victim had told her mother about the same, her mother had told her not to tell her father about it, as her father would beat her brother. However, the victim told her aunty about the rape and the F.I.R was subsequently filed. We do not find any infirmity in the evidence of the victim which has been corroborated by her statement made under Section 164 Cr.PC. Even assuming that the statement made by the victim under Section 164 Cr.PC cannot have any corroborative value, in the absence of any oath being administered to the victim, the appellant has made an admission in the positive in his examination under Section 313 Cr.PC, when asked whether he had committed penetrative sexual assault upon the victim. This has clearly corroborated the fact that the victim was raped by her elder brother, the appellant. 12. Further, the evidence of the doctor who examined the victim, i.e., PW-9, is to the effect that on examining the victim’s genital area, she found that her hymen was not intact. Page No.# 6/6 13. The above evidence of PW-9 also corroborates the testimony of the victim that she had been raped by her brother. 14. In view of the reasons stated above, we do not find any ground to interfere with the impugned Judgment & Order dated 30.09.2024 passed in Criminal Trial No. 362/2023 by the learned Special Judge POCSO, Lunglei. 15. The appeal is accordingly dismissed. Send back the TCR. 16. In appreciation of the assistance provided by the learned Amicus Curiae and the Legal Aid Counsel, their fees should be paid by the High Court Legal Services Committee. JUDGE JUDGE Comparing Assistant