Gauhati High Court - Aizawl
CRL.A(J)/9/2025 on 1 December, 2025
GAHC030001442025
2025:GAU-MZ:315
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRL.A.(J) NO. 9 OF 2025
Ganesh Sunar
S/o Til Bahadur Sunar
R/o House No. T-193, ITI Veng, Aizawl,
Mizoram.
.......Appellant
-Versus-
1. State of Mizoram through Secretary, Govt.
of Mizoram, Home Department, Aizawl,
Mizoram.
2. Nir Bahadur Sunar
S/o- Don Bahadur Sunar,
R/o- ITI Veng, Aizawl, Mizoram.
....... Respondents
-BEFORE-
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Appellant(s) : Mr. Jordan Rohmingthanga, Amicus Curiae
For the Respondent(s) : Mrs. Mary L. Khiangte, Additional Public
Prosecutor, for respondent No. 1.
Mr. Lalrokunga Pautu, Legal Aid Counsel,
for the respondent No. 2.
Date on which judgment
is reserved : N/A
Page 1 of 21
Date of pronouncement
of judgment : 01.12.2025
Whether the pronouncement
is of the operative part
of the judgment ? : No.
Whether the full judgment
has been pronounced : Yes.
JUDGMENT & ORDER (ORAL)
Heard Mr. Jordan Rohmingthanga, learned amicus curiae appearing for the appellant. Also heard Mrs. Mary L. Khiangte, learned Additional Public Prosecutor appearing for the State respondent and Mr. Lalrokunga Pautu, learned Legal Aid Counsel, appearing for the respondent No. 2.
2] The present appeal is filed under Section 415(2) of the Bharatiya Nagaraik Suraksha Sanhita, 2023, (hereinafter referred to as the "BNSS") [corresponding to Section 374 of the Code or Criminal Procedure, 1973, (hereinafter referred to as the "Cr.P.C.")] against the judgment dated 21.03.2024 and the sentence order dated 04.04.2024 passed by the learned Special Judge, POCSO Act, Aizawl District, (hereinafter referred to as the "trial court") in Sessions Case No. 40 of 2022, arising out of Criminal Trial No. 443 of 2022, Aizawl P.S. Case No. 644/2021, whereby the appellant was convicted under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the "POCSO Act"), and was convicted and sentenced to undergo simple imprisonment for 5 (five) years and to pay fine of Rs.
Page 2 of 2110,000/- (rupees ten thousand); in default of payment of fine, simple imprisonment of 1 (one) month.
3] The prosecution story is that on 24.12.2021 a written F.I.R. was submitted by the respondent No. 2/PW-1 (Nir Bahadur Sunar), stating, inter alia, that on 23.12.2021, near Jivan Sang Republic Vengthlang Church, the accused/appellant, aged about 28 years, sexually assaulted his son PW-6/victim, who was aged about 4 years, by inserting his penis inside the anus of the victim „x‟. Accordingly, a case was registered as Aizawl P.S. Case No. 644/2021 dated 24.12.2021 under Section 6 of the POCSO Act.
4] During the course of the investigation, the informant/PW-1 was examined, and his statement was recorded. The victim and the other witnesses were also examined under Section 161 of the Cr.P.C. Upon completion of the investigation, a charge-sheet was submitted under Section 6 of the POCSO Act before the trial court. The trial court thereafter, upon the accused pleading not guilty, framed charges under Section 6 of the POCSO Act.
5] During the trial, the prosecution examined as many as 7 prosecution witnesses, including the informant/PW-1, the brother of the victim PW-2 (Suraj Sunar), the friend of the victim PW-3 (Joseph Tamang), the seizure witness PW-4 (Ram Bahadur), the victim himself PW-6, the forensic expert PW-7 (Ammie Lalnunpuii), and the Investigating Officer PW-9 (S.I. S. Vungzamuana). Upon completion of the trial, all the Page 3 of 21 incriminating circumstances were put to the accused/appellant under Section 313 of the Cr.P.C. wherein he generally denied taking the victim „x‟ anywhere or doing anything to him. He further adduced himself as defence witness No. 1. After hearing the arguments of both the parties, the trial court was pleased to observe that though the evidence does not indicate the victim „x‟ being penetrated by the accused/appellant; however, taking the evidence as a whole, nevertheless, it is established that the victim „x‟ had been sexually assaulted by the accused/appellant, and accordingly, convicted the accused/appellant under Section 10 of the POCSO Act. Situated thus, the present appeal has been preferred.
6] Mr. Jordan Rohmingthanga, learned amicus curiae appearing for the appellant, submits that there is no medical evidence produced before this court to establish the offence of sexual assault by the accused/appellant, and hence the impugned conviction is liable to be interfered with.
7] Per contra, Mrs. Mary L. Khiangte, learned Additional Public Prosecutor appearing for the State respondent, submits that the learned trial court has convicted the accused/appellant under Section 10 of the POCSO Act; however, it is clearly evident from the initial statement of the victim „x‟ recorded under Section 161 of the Cr.P.C. before the Investigating Officer as well as during his examination by the Judicial Magistrate concerned under Section 164 of the Cr.P.C., and his deposition before the trial court that the same clearly establishes that the victim „x‟ has been penetrated by Page 4 of 21 the accused/appellant thereby warranting a conviction under Section 6 of the POCSO Act instead of Section 10 of the POCSO Act as awarded by the trial court. In support of the aforesaid submission, she relies upon the decision of the Division Bench of this court in the case of C. Laihlo -vs- State of Mizoram and Anr., in Crl.A. No. 11/2019.
8] Mr. Lalrokunga Pautu, learned Legal Aid Counsel, appearing for the respondent No. 2, submits that the material available on record clearly establishes the guilt of the accused/appellant. He further submits that there is no reason for the victim and the informant to falsely implicate the accused/appellant in the case. He further submits that the accused/appellant in his evidence before this court as DW-1 has clearly admitted that he had a friendly relation with the father of the victim and he used to joke and play with the victim as well. In support of the aforesaid submission, he relies upon the decision of the Division Bench of this court in the case of Budheswar Hazarika -vs- State of Assam, reported in 2024 SCC OnLine GAU 130.
9] I have given my prudent consideration to the arguments advanced by the learned counsels for the contending parties and have perused the material available on record. I have also duly considered the case laws submitted at the bar.
10] It appears that upon the victim „x‟ reporting to his mother and the informant/PW-1 about the accused/appellant inserting his sexual organ inside his anus, PW-1 lodged the Page 5 of 21 F.I.R. PW-1 has deposed that the victim „x‟ was born on 06.08.2017, and in support of the age of the victim, he has produced and exhibited the Birth Certificate as Ext. M-1. He further deposed that on 23.12.2021 in the evening at around 3 pm, his son came to him and informed him that the accused/appellant had inserted his penis into his anus at Jeevan Sangh Biaking Tlang. He further deposed that when his wife looked at his buttocks, she found there was some redness. He further deposed that on the next day after reporting the matter at the YMA Office and as per their advice, he lodged an F.I.R. at the Aizawl Police Station. He accordingly exhibited the F.I.R. submitted by him as Ext. P-1. He further deposed that the victim „x‟ was taken to Civil Hospital Aizawl for medical examination on 24.12.2021, and that the victim „x‟ was also forwarded to the court for examination by the Magistrate.
During cross-examination, he denied the suggestion that the victim did not inform them about the accused/appellant inserting his penis inside his anus. Nothing substantial has been brought by the defence during the cross- examination of PW-1.
11] PW-2 and PW-3 deposed that while they were riding a bicycle near their house along with the victim „x‟, the accused/appellant came towards them and pulled the victim „x‟ and took him to the jungle. They both further deposed that though they went searching for the victim „x‟ and the accused/appellant; however, while looking for them, they saw them coming towards them together. PW-2 categorically Page 6 of 21 deposed that on that day after he and his brother returned home, victim „x‟ went to the washroom, and he made a complaint of pain in his anus. He further deposed that accordingly, he told his mother about the accused/appellant taking the victim „x‟ to the jungle and coming out together while searching for them.
During cross-examination nothing substantial was brought out by the defence to demolish the testimonies of the aforesaid two witnesses.
12] PW-4 is the seizure witness before whom the police seized the Birth Certificate and the yellow-coloured pant of the victim „x‟.
13] PW-6 is the victim himself who deposed that the accused/appellant took him to the jungle and inserted his penis inside his anus. He further deposed that at that time he called out for his parents and also cried in pain. He further deposed that the accused held his hand; however, he managed to run away towards his house. He further deposed that at home he told his parents and his younger brother that the accused/appellant hurt him by inserting his penis inside his anus.
During cross-examination, he denied the suggestion that he did not shout and cry, calling for his parents in pain, and that he was not sexually assaulted by the accused/appellant.
Page 7 of 2114] PW-7 is the FSL expert who deposed that the seminal stains from the anal swab were insufficient for DNA profiling, and hence comparison with the blood of neither the victim nor the accused was possible.
15] PW-9 is the Investigating Officer who deposed that upon an F.I.R. being filed on 24.12.2021 by the informant/PW-1 alleging that the accused/appellant had taken the victim „x‟ to the forest and had sexual intercourse with him, inserting his penis into the victim‟s anus, a case was registered under Section 6 of the POCSO Act, and accordingly investigated the same. He further deposed that he sent the victim „x‟ for medical examination to Civil Hospital Aizawl, and the report showed that a swab taken from the anal area showed the presence of semen. He further deposed that he recorded the statement of the witnesses, including the informant/PW-1, the victim himself, and two of his friends. He further deposed that he seized the underwear and the Birth Certificate of the victim „x‟ and sent the victim „x‟ for recording his judicial statement. He further exhibited the charge-sheet, arrest memo, and seizure memo.
During cross-examination he clarified that the victim‟s underwear and birth certificate were given to him by his mother in the presence of two civil witnesses.
16] The accused/appellant, by adducing himself as DW- 1, deposed that he has been staying in ITI Veng for three years, and before that, he was living outside Mizoram. He further deposed that he has relatives in ITI Veng but does not Page 8 of 21 have any other relatives in Aizawl. He further deposed that he did not take the alleged victim to the forest, but the victim „x‟ followed him. He further deposed that he did not have sex with the victim.
During cross-examination by the learned Special Public Prosecutor, he clarified that he knows the victim „x‟, and he used to work with his father and used to play and joke with the victim „x‟. He denied removing the clothes of victim „x‟ and having sex with the victim. He further clarified that he used to visit the victim‟s house, as he used to work with his father.
17] What transpires from the reading of the testimonies of the prosecution witnesses is that the victim has clearly deposed before the trial court that the accused took him to the jungle and inserted his penis into his anus, and having felt pain, he called for his parents and also cried. It further appears that when the victim „x‟ was crying in pain calling for his parents, the accused/appellant tried to hold his hands, however, the victim „x‟ managed to run towards his home. It appears that PW-2 and PW-3 corroborate both the taking of the victim by the accused/appellant to the forest as well as their returning back from the forest. It further appears that PW-2 has also corroborated the facts that the victim „x‟ felt pain in his anus while he had gone to the washroom after returning home and PW-1 supported the same by testifying that upon the victim complaining about the pain to them, when his wife examined his buttocks, she saw redness there.
Page 9 of 2118] The legal position regarding the testimony of a child victim is well settled. In State of Punjab -vs- Gurmit Singh, reported in (1996) 2 SCC 384, the Apex Court held that the testimony of a victim of sexual assault stands on par with that of an injured witness and does not require corroboration unless there are compelling reasons. Paragraph 21 of the aforesaid judgment reads as under: -
"21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
19] Similarly, in Ganesan vs State, reported in 2020 (10) SCC 573, the Apex Court held that where the testimony Page 10 of 21 of the victim is found consistent, reliable, and trustworthy, conviction on the basis of such testimony is permissible. Likewise, in Rai Sandeep vs State (NCT of Delhi), reported in 2012 (8) SCC 21, the Apex Court explained the concept of a "sterling witness", emphasizing that a truthful victim requires no corroboration. Paragraph 22 of the aforesaid judgment read as under: -
"22. In our considered opinion, the „sterling witness‟ should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a „sterling witness‟ whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said Page 11 of 21 witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
20] Apt also to refer to the decision of the Apex Court in the case of Phool Singh vs State of M.P., reported in (2022) 2 SCC 74, wherein the Apex Court reiterated that reliable ocular testimony cannot be disregarded merely on the ground that the medical evidence is absent or inconclusive.
21] As a necessary corollary to the above, reading the decisions of the Apex Court, in a case of sexual abuse/assault, the sole testimony of the victim is sufficient to convict the accused/appellant without seeking corroboration whatsoever, provided such testimony is trustworthy, unblemished, credible, and of sterling quality.
22] PW-6/victim‟s testimony in the present case is natural, spontaneous, and remains unshaken in cross- examination. He has been consistent right from the very beginning, and nothing has been specifically pointed out why the sole testimony of PW-6/victim should not be believed. That apart, it is corroborated by the immediate disclosure to PW-1 and PW-2 and by the observations noted by them. PW- 2 (brother) and PW-3 (friend) also support the circumstances in which the PW-6/victim was taken away and brought back by the accused/appellant. Hence, the testimony of the PW- 6/victim being wholly trustworthy, unblemished and credible, no further corroboration is required for convicting the Page 12 of 21 accused/appellant. Pertinently upon perusing the evidence of the DW-1/accused/appellant, it is clear that the accused/appellant was having a friendly relation with the victim „x‟ and his family and hence, there was no reason for the victim and the informant to falsely implicate him in the case. Hence, non-examining the medical officer who examined the victim „x‟ is of no consequence in the context of the present case. Therefore, the impugned conviction under Section 10 of the POCSO Act is well supported by the evidence on record.
23] A plain reading of PW-6/victim‟s deposition suggests that the act described may fall within the definition of penetrative sexual assault under Section 3 of the POCSO Act, which requires penetration "to any extent".
24] Section 3 of the POCSO Act reads as under:
"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."
Page 13 of 2125] In Bhupen Kalita vs State of Assam, reported in (2020) 5 GLR 153, this court has observed and held that in a given case even superficial penetration may amount to rape, which may not necessarily involve full penetration or injury to the female sexual organ; if the testimony of the victim child is credible and trustworthy, the offence of sexual assault may be established.
26] In Santosh Kumar vs State of Maharashtra, reported in 2015 7 SCC 641, and State of H.P. vs Gyan Chand, reported in 2001 6 SCC 71, the Apex has held that even the slightest penetration is sufficient to constitute the offence.
27] Since PW-6/victim was below 12 years of age, the offence, if found proved, would fall under Section 5 (m) and be punishable under Section 6 of the POCSO Act, which prescribes a minimum sentence of 10 years of rigorous imprisonment.
28] The trial court, however, convicted the accused only under Section 10 of the POCSO Act.
29] This leads to the question of whether in an appeal filed by the accused, the high court can alter the conviction to a graver offence.
30] Section 427 (b) of the BNSS (corresponding to Section 386 of the Cr.P.C.) empowers the appellate court "to alter the finding"; however, this power is not unlimited. It must operate in consonance with Section 415 of the BNSS Page 14 of 21 (corresponding to Section 374 of the Cr.P.C.), which protects the right of the accused to appeal without fear of being placed in a worse situation.
31] Section 427 (b) of the BNSS reads as under:
"427. (b) in an appeal from a conviction--
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;"
32] Section 415 of the BNSS reads as under:
"415. (1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court. (2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years has been passed against him or against any other person convicted at the same trial, may appeal to the High Court.
(3) Save as otherwise provided in sub-section (2), any person,--
(a) convicted on a trial held by Magistrate of the first class, or of the second class, or
(b) sentenced under section 364, or
(c) in respect of whom an order has been made or a sentence has been passed under section 401 by any Magistrate, may appeal to the Court of Session.
(4) When an appeal has been filed against a sentence passed under section 64, section 66, section 67, section 68, section 70 or section 71 of the Bharatiya Nyaya Sanhita, 2023, the appeal shall be disposed of Page 15 of 21 within a period of six months from the date of filing of such appeal."
33] Reading the aforesaid provisions of law, it is apparent that the focus of attention when an appeal is preferred against a judgment & order passed by the trial court is whether the appeal is filed by the State, a complainant, a victim or the accused in a particular case. Under Section 415 of the BNSS, the right of the accused to prefer an appeal is not only a statutory right but also a constitutional right. This is because an accused has a right to challenge a judgment not only on its merits, namely with respect to the conviction and sentence being imposed on him, but also on the procedural aspects of the trial. The appellate court in such an appeal is empowered to consider the appeal from the perspective of the accused to see if he has a good case on the merits and to set aside the judgment of the trial court and acquit the accused, or to remand the matter for a retrial in accordance with law, or to reduce the sentence while maintaining the conviction, or, in the alternative, to dismiss the appeal. The governing principle is the doctrine of "no reformatio in peius", i.e., an appellant cannot be put in a worse position in his own appeal. I am thus of the view that the appellate court cannot enhance the sentence or alter the conviction to a graver offence when the appeal is filed solely by the accused inasmuch as by doing so, the appellate court shall put the accused in a worse position in his own appeal to the utter prejudice and detriment of such accused.
Page 16 of 2134] The Apex Court in a recent judgment in the case of Nagarajan vs State of Tamil Nadu, reported in (2025) 8 SCC 331, which has been placed before this court by Mr. Lalrokunga Pautu, learned Legal Aid Counsel, appearing for the respondent No. 2, has clarified the position in unequivocal terms that in an appeal preferred solely by the accused under Section 374 of the Cr.P.C., the appellate court does not possess the jurisdiction to enhance the sentence or alter the conviction to a more serious or graver offence, and any such enhancement would operate to the prejudice of the appellant and would place him in a worse position merely because he exercised his statutory right of appeal. The Apex Court accordingly observed that the doctrine of "reformatio in peius"
applies with full force and acts as a complete bar to such enhancement in an accused-only appeal. The Apex Court further held in that case that the high court cannot resort to suo moto revision under Section 401 of the Cr.P.C. to do what it cannot do while hearing the appeal. Relevant paragraphs of the aforesaid judgment read as under:
"26. In this context, we also observe that the Trial Court should also be very careful while passing an order of sentence inasmuch as the sentence imposed must be concomitant with the charge(s) framed and the findings arrived at while arriving at a judgment of conviction. If the charges are proved beyond reasonable doubt against an accused, then the sentence following a finding and judgment of conviction must be appropriate to the nature of the charge(s) which are proved by the prosecution.
27. In this regard, it must be noted that for exercise of powers of the appellate court for enhancement of sentence in an appeal filed either by the State or the complainant or the victim, the CrPC provides that the appellate court can reverse the finding and sentence and acquit or discharge the accused, or order him to Page 17 of 21 be re-tried by a court competent to try the offence, or alter the finding by maintaining the sentence, or with or without altering the finding, alter the nature or the extent, of the sentence so as to enhance or reduce the same. Thus, the power to enhance the sentence can be exercised by the appellate court only in an appeal filed by the State, victim or complainant, provided the accused has had an opportunity of showing cause against such enhancement.
28. It is further provided that the appellate court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the court passing the order of sentence under appeal. Therefore, in an appeal for enhancement of sentence filed by the State etc., unless the conditions prescribed in the form of provisos to Section 386 of CrPC are complied with by the appellate court, there cannot be an enhancement of sentence.
29. Obviously in such an appeal for enhancement of sentence, the convict or the accused is the respondent and therefore there cannot be enhancement of sentence unless the accused or convict has been heard. However, under the scheme of Section 386 of CrPC vis-àvis in an appeal for enhancement of sentence, there can also be an acquittal of the accused as per sub-clause (i) of clause (c) of Section 386 of CrPC. But, on the other hand, in an appeal from a conviction, it has been expressly stated that there cannot be enhancement of the sentence. Therefore, while in an appeal for enhancement of sentence filed by the State, the accused can make out a case for acquittal or discharge or retrial, in the case of an appeal from conviction, the respondent in such an appeal, namely the State or the victim or the complainant, cannot seek enhancement of the sentence than what has been awarded by the Trial Court in the absence of filing any appeal or revision.
30. The above distinction can be explained by way of a latin maxim which has been discussed by Ujjal Bhuyan, J., while in Bombay High Court, in Jyoti Plastic Works Pvt. Ltd. vs. Union of India, in the following words: (SCC OnLine Bom para 40) '40. In this connection we may refer to the maxim reformatio in peius. It is a latin phrase meaning a change towards the worse i.e., a change for the worse. As a legal expression it means that a lower court judgment is amended by a higher court into a worse one for those appealing it. In many jurisdictions, this practice is forbidden ensuring that an appellant cannot be placed in Page 18 of 21 a worse position as a result of filing an appeal. When the above phrase is prefixed by the words 'no' or 'prohibition', which would render the maxim as no reformatio in peius or prohibition of reformatio in peius, it would denote a principle of procedure as per which using a remedy available in law should not aggravate the situation of the person who avails the remedy. In other words, a person should not be placed in a worse position as a result of filing an appeal. No reformatio in peius or prohibition of reformatio in peius is a part of fair procedure and thus by extension can also be construed as part of natural justice. It is not only a procedural guarantee but is also a principle of equity.' (underlining by us)
31. The rationale of the above can be explained in simple language by stating that no appellant by filing an appeal can be worse-off than what he was. That is exactly what we are seeking to reiterate in our judgment having regard to the facts of the present case."
35] In the present case, the State has not preferred any appeal under Section 418 or 419 of the BNSS seeking enhancement of sentence or challenging the non-conviction under Section 6 of the POCSO Act. Likewise, neither the informant/PW-1 nor the victim/PW-6 has filed any appeal either for enhancing the sentence and/or challenging the non- conviction under Section 6 of the POCSO Act. Even though the evidence may disclose ingredients of Section 6 of the POCSO Act, this court is barred from altering the conviction or enhancing the sentence because: -
(i) The appeal is filed solely by the accused;
(ii) Altering the conviction to Section 6 of the POCSO Act would increase the punishment from 5 years to a minimum of 10 years;Page 19 of 21
(iii) Such enhancement would materially prejudice the appellant;
(iv) The doctrine of "reformatio in peius" prohibits such a course.
36] Accordingly, I am of the firm view that this court cannot alter the conviction to a graver offence or impose a higher sentence in an appeal filed solely by the accused. Therefore, the conviction under Section 10 of the POCSO Act cannot be altered in this appeal.
37] The impugned conviction of the accused/appellant under Section 10 of the POCSO Act, being supported by reliable evidence, calls for no interference. Hence, the trial court has committed no error or illegality in rendering the impugned conviction and sentence. Resultantly, the criminal appeal filed by the accused/appellant stands dismissed.
38] Accordingly, the judgment of conviction dated 21.03.2024 and the order of sentence dated 04.04.2024, passed by the learned Special Judge, POCSO Act, Aizawl District, in Sessions Case No. 40 of 2022 (arising out of Criminal Trial No. 443 of 2022, Aizawl P.S. Case No. 644/2021), under Section 10 of the Protection of Children from Sexual Offences Act, 2012, is hereby affirmed.
39] Before parting with the matter, this Court deems it appropriate to place on record its profound appreciation for the exemplary assistance rendered by Mr. Jordan Rohmingthanga, learned Amicus Curiae appearing for the Page 20 of 21 appellant. This Court further records its sincere commendation for the service rendered by Mr. Lalrokunga Pautu, learned Legal Aid Counsel for the informant, whose dedicated and diligent representation, notwithstanding the constraints inherent in legal aid work, has significantly contributed to the fair and effective disposal of the case.
40] Both counsels deserve to be placed on record for their commitment to the cause of justice. Their meticulous preparation, clarity in articulation, and balanced presentation of the factual and legal issues has been of immense assistance to the Court in the effective disposal of this appeal.
41] The remuneration of the learned Amicus Curiae is fixed at Rs. 8,000/-, which shall be paid by the Mizoram State Legal Services Authority. The learned Legal Aid Counsel shall be entitled to fees as per the existing rates prescribed by the State Legal Services Authority, which shall process and disburse the payment in accordance with its rules.
42] Return the trial court record (TCR).
JUDGE
Comparing Assistant
Pranab Digitally
by Pranab
signed
Chandr Chandra
Date:
Das
2025.12.03
a Das 16:34:19 +05'30'
Page 21 of 21