Page No.# 1/21

GAHC030002852025

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : CRL.A(J)/26/2025

Sh. P. Lalhmachhuana

S/o Zothangpuia

R/o Salem Veng, Lunglei

VERSUS

The State of Mizoram and Anr.

Aizawl

Advocate for the Petitioner : Mrs. H Lalmalsawmi (Amicus Curiae)

Advocate for the Respondent : P.P./Addl.PP, Mizoram for R1

B E F O R E

HON’BLE THE CHIEF JUSTICE MR. ASHUTOSH KUMAR

HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

For the Appellant : Mrs. H. Lalmalsawmi, Amicus Curiae

For the Respondent(s): Mrs. Mary L. Khiangte, Addl.PP, Mizoram for R-1.

: Mr.LalrokungaPautu, Legal Aid Counsel

for R-2

Date on which judgment is reserved : 17.02.2026

Date of pronouncement of judgment : 02.03.2026

Whether the pronouncement is of the : N/A

operative part of the judgment ?

Whether the full judgment has been : Yes

pronounced?

Page No.# 2/21

J UDGMENT & O RDER (CAV)

(Michael Zothankhuma, J)

1.Heard Mrs. H. Lalmalsawmi, learned Amicus Curiae for the appellant. Also

heard Mrs. Mary L. Khiangte, learned Addl. Public Prosecutor for the State and

Mr. Lalrokunga Pautu, learned Legal Aid Counsel for the respondent No. 2.

2.This is an appeal against the impugned Judgment & Order dated

27.06.2023 passed by the Special Court, POCSO, Lunglei in Criminal Trial No.

87/2022, by which the appellant has been convicted under Section 6 of the

POCSO Act and sentenced to undergo Rigorous Imprisonment for a period of 20

(twenty) years and to pay a fine of Rs. 5,000/-, i/d Simple Imprisonment for 1

(one) month for having sexual intercourse with the 12 year old minor girl.

3.The prosecution case in brief is that an FIR dated 30.01.2022 was

submitted by PW-1 stating that her grand-daughter (12 year old) had told her

on the night of 29.01.2022 that her step-father (appellant) had sexual

intercourse with her ever since she was 11 years old at their house in Lunglei

Salem Veng. She therefore prayed to take action against the appellant.

4.In pursuance to the FIR, All Women Police Station Case No. 0/2022 dated

30.01.2022 was registered under Section 6 of the POCSO Act read with Section

376 AB IPC. The Investigating Officer (PW-9) started the investigation and had

the victim examined by a Medical Officer. Thereafter, PW-9 sent all the

investigation materials that she had collected alongwith the Case Diary to the

S.P, Aizawl through the Officer-in-Charge of the All Women Police Station, for

transfer of the case to the jurisdictional Police Station, i.e., Lunglei Police

Station.

Page No.# 3/21

5.The All Women Police Station Case No. 0/2022 dated 30.01.2022 was thus

sent to the Lunglei Police Station, wherein the case was re-registered as Lunglei

P.S Case No. 21/2022 dated 23.02.2022 under Section 6 of the POCSO Act read

with Section 376 AB IPC. The case was then endorsed to the second

Investigating Officer (IO), who belonged to the Lunglei Police Station, where the

investigation was completed. Charge-sheet was thereafter submitted by the

second I.O. of the Lunglei Police Station.

6.The learned Trial Court thereafter framed charge under Section 6 of the

POCSO Act, to which the appellant pleaded not guilty and claimed to be tried.

7.The learned Trial Court thereafter examined 8 Prosecution Witnesses and

3 Defence Witnesses. After the appellant was examined under Section 313

Cr.PC, the learned Trial Court came to a finding that the appellant had

committed the offence under Section 5 (m) of the POCSO Act and convicted him

accordingly.

8.The evidence of the informant (PW-1) is to the effect that the victim was

the illegitimate child of her daughter, i.e. her granddaughter. Further, her

daughter’s husband was the step-father of the victim. She stated that the victim

stayed with her (PW-1) in Aizawl. When her daughter came to Aizawl during

March, 2020, her daughter returned to Lunglei with the victim and the victim

stayed with her mother’s family at Lunglei till October, 2021. During the month

of October, 2021, the victim telephoned her and requested her to take her back

to Aizawl stating that she felt home sick. Accordingly, PW-1 took back the victim

from Lunglei to Aizawl. Sometime during the month of January, 2022, the victim

told her cousin (PW-5) that the appellant had touched her with sexual intent

while she was in Lunglei. The matter came to the knowledge of the victim’ aunt

Page No.# 4/21

(PW-4), who enquired about the incident from the victim. PW-1 then stated that

she saw the victim talking about the incident to PW-4and that she was

shivering. Thereafter, on PW-1 asking PW-4, PW-4 told PW-1 that the appellant

had sex with the victim while she was in Lunglei. The said revelation had been

made in the evening of 29.01.2022, due to which PW-1 submitted an FIR at the

All Women Police Station, Aizawl on 30.01.2022.

9.In her cross-examination, PW-1 stated that the victim did not tell her

about the appellant having sex with the victim. Further, she did not remember

the contents of the FIR as she could not read and write. In her re-examination,

PW-1 stated that though she did not specifically remember the contents of the

FIR, the reason why she submitted the FIR was because the victim had been

raped by the appellant.

10.The evidence of the victim (PW-2), is to the effect that she was born on

01.08.2009 and that she knew the appellant, who was her step-father. PW-2

stated that she was in Lunglei with her mother, step-father and two of her step-

siblings from March, 2020 till October, 2021, during which time the appellant

sexually assaulted her several times, by inserting his penis into her private

parts, which resulted in bleeding. In her cross examination, the victim (PW-2)

denied the suggestion that her mother had taken her to Lunglei during

February, 2021. She stated that except for the month and year regarding the

time when she went to Lunglei with her mother, in her judicial statement made

under section 164 Cr.P.C, the rest of the judicial statement was true. Thus, there

is a discrepancy as to the exact date she had gone to Lunglei with her mother.

In her 164 Cr.P.C. statement and examination-in-chief, she had stated that she

had gone to Lunglei in February, 2021. However, in her cross examination, she

Page No.# 5/21

has denied that she had gone to Lunglei on February, 2021. This discrepancy in

her statement made with regard to when she went to Lunglei in 2021 and which

she had admitted in her cross examination, does not go to the root of the

matter and as such, cannot be said to be fatal to the prosecution case. She

further stated that she did not divulge to others what had happened to her

earlier, as the appellant had threatened her, by saying that he would divorce the

victim’s mother and he would kill the victim. PW-2 stated that she disclosed the

incident to her cousin Zothansangi and PW-4. Thereafter, when her aunt (PW-4)

inquired about the matter, she told the story to PW-4. PW-2 further stated that

her judicial statement was recorded by a Magistrate at Aizawl, which was

exhibited as Ext.P-4. She also stated that she was examined by a lady Doctor.

11.The evidence of PW-4, who is the younger sister of the victim’s mother, is

to the effect that PW-5 was the daughter of another sister i.e. Vanlalvuani. She

came to learn from PW-5 that the appellant used to touch the private parts and

breast of the victim, while she was staying with the family of the appellant in

Lunglei. On PW-4 asking PW-2 (victim) in the evening of 29/01/2022 as to what

had actually happened to her, the victim told her that the appellant had sexual

intercourse with her several times, while she was staying with them in Lunglei.

12.The evidence of PW-5, who is the cousin sister of the victim, is to the

effect that the victim used to tell PW-5’s younger sister Zothansangi, about

being sexually assaulted by the appellant while she was in Lunglei. During the

time PW-5 was in the house of her aunt (PW-4), PW-5 asked the victim as to

what had happened. Though the victim was initially hesitant to divulge

anything, the victim told PW-5 that the appellant used to touch her breast and

anus. PW-4 then asked the victim as to what had happened, to which the victim

Page No.# 6/21

stated that the appellant had sex with her several times.

13.The evidence of PW-6, who is the mother of the victim, is to the effect

that she was not aware of any incident of sexual abuse committed by her

husband on her daughter (victim). PW-3 stated that she brought the victim to

stay with her in Lunglei in the year 2000 and PW-1 took her back to Aizawl in

October, 2021. In her cross-examination, PW-6 stated that the victim’s

grandmother (PW-1) had demanded Rs. 1 Lakh from her husband, as a

condition to remain silent about the sexual abuse and accordingly, the said

amount was given to her as demanded.

14.The evidence of PW-7, who is the Medical Doctor who had examined the

victim on 30.01.2022 at 2:30 p.m, is to the effect that she found the hymen of

the victim torn at 2 O’clock position. Her body examination showed that

everything else was normal. In the opinion of PW-7, the tear in the hymen could

be because of penetrative sexual assault or due to other causes.

15.The evidence of PW-9, who is the Sub-Inspector in the All Women Police

Station, is to the effect that she was made the Investigating Officer and she

conducted the investigation of the case, besides getting the medical

examination of the victim done at Aizawl Civil Hospital. The judicial statement of

the victim was also recorded by the JMFC-III. The photocopy of the Birth

Certificate of the victim was also seized, which she compared with the original

and had it attested by the Officer-in-Charge. PW-9 further stated that she sent

the Case Diary alongwith all the materials to the S.P, Aizawl through the Officer-

in-Charge, for transfer of the case to the jurisdictional Police Station, i.e.,

Lunglei Police Station.

Page No.# 7/21

16.The evidence of PW-11, who is the Officer-in-Charge of the Lunglei Police

Station, is to the effect that after the transfer of the All Women Police Station

Case No. 0/2022 dated 30.01.2022 to the Lunglei Police Station, the same was

re-registered as Lunglei P.S. Case No. 21/2022 dated 23.02.2022 under Section

6 of the POCSO Act read with Section 376 AB IPC. The case was endorsed to

Sub-Inspector Rosy Lalfamkimi (now deceased). On completion of the

investigation, Sub-Inspector Rosy Lalfamkimi submitted the Charge-sheet. PW-

11 stated that he supervised the investigation as he was the Officer-in-Charge

of the said Police Station.

17.The evidence of Defence Witness-1 (DW-1), who is the 10 year old son of

the appellant, is to the effect that the victim had sex with his younger brother,

who was aged 4 years. He also stated that the victim had sex with one Mama.

In his cross-examination, DW-1 stated that he did not see the victim having sex

with Mama. He further denied the suggestion that the victim did not have sex

with P. Lalpekhlua, who was just 4 years old.

18.The evidence of DW-2 is to the effect that her husband was a friend of the

appellant. The appellant and the victim maintained a close relationship with

each other and that the victim appeared to have a weakness towards the

opposite sex. She further stated that due to the allegation made by the

appellant’s mother-in-law (PW-1), the appellant had been made to pay Rs. 1

Lakh in order to settle their differences. Even though PW-1 had agreed to

pardon the appellant, she changed her stand after she got to know that there

was a provision for payment of compensation under a Govt. Scheme.

19.The evidence of DW-3, who is the neighbour of the appellant, is to the

effect that the appellant was a good natured person and did not speak ill of

Page No.# 8/21

others. He further stated that he did not think that the appellant would have

had sex with a minor girl. On the other hand, DW-3 stated that the victim

appeared to be a person of loose moral character.

20.Mrs. H. Lalmalsawmi, learned Amicus Curiae for the appellant submits that

it appears that the victim had been tutored to make a false accusation against

the appellant, inasmuch as, there are discrepancies in the statement made by

the victim under Section 164 Cr.PC vis-a-vis her testimony before the learned

Trial Court. Further, the entire case seems to be a case of meeting the financial

needs of PW-1, which has been corroborated by the statement of the mother of

the victim (PW-6), who stated that Rs. 1 Lakh had been demanded by the

grand-mother of the victim, i.e., PW-1, for keeping silent about the sexual abuse

allegedly inflicted on the victim. The learned Amicus Curiae submits that the

testimony of the victim is vague and shorn of material particulars and as such,

the learned Trial Court erred in relying on the sole evidence of the victim for

convicting the appellant. She accordingly submits that the impugned judgment

should be set aside.

21.The learned APP and the Legal Aid Counsel for the respondent no. 2

submit that there is no infirmity with the findings of the learned Trial Court,

inasmuch as, the sole testimony of the victim can be the basis for convicting the

accused, if the same is found to be trustworthy and inspires the confidence of

the Court. They also submit that there was no reason for the victim to have

made a false allegation against the appellant. As such, the impugned judgment

should not be interfered with.

22.We have heard the learned counsels for the parties

Page No.# 9/21

23.The statement of the victim made under section 164 Cr.P.C. is to the

following effect:-

“P. Lalhmachhuana is my stepfather. After my mother remarried, my sister and I lived

with our grandparents. My mother lived with her new family at Lunglei, Salem Veng. On

February, 2021 my mother came with my step brother Lalpekhlua and they took me to

Lunglei with them. My step brother Pekhlua fell ill and so my mother had to stay in the

hospital with him.

Whenever my mother was not around my stepfather would cover my mouth and take

off my clothes. He would touch my breasts and he would make me lie down on the bed, in

the sitting room and he would insert his private part. My stepfather asked me to not tell

anyone and if I tell anyone about it, he would divorce my mother and that he would kill me.

My stepfather must have molested me more than 20 times.

After I returned to Aizawl in October, 2021, I informed my cousin Zo-i and elder sister

Nunu-i in January, 2022. They in turn informed my aunt Lalbiakchhawni and they report it to

the Police.

The above statements are all true.”

24.In the case of Lok Mal Alias Loku Vs. State of Uttar Pradesh reported

in (2025) 4 SCC 470, the Supreme Court held that the evidence of a

prosecutrix in a case of rape is of the same value as that of a injured witness

and conviction can be made on the basis of the sole testimony of the

prosecutrix. Para 16 of the judgment is reproduced herein below as follows :-

“16. It is a settled principle of criminal jurisprudence that the evidence of a prosecutrix in a

case of rape is of the same value as that of an injured witness and conviction can be made on the

basis of the sole testimony of the prosecutrix. In the case of State of Punjab v. Gurmit Singh, (1996)

2 SCC 384, the Supreme Court observed as under:

“21… 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

Page No.# 10/21

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.”

(emphasis supplied)

25.In the case of Bharawada Bhoginbhai Hrijibhai Vs. State of Gujarat

reported in (1983) 3 SCC 217, the Supreme Court held that refusal to act

upon the testimony of a victim of sexual offence in the absence of corroboration

in the Indian setting, is adding insult to injury. The Supreme Court further asked

the question, as to why the evidence of a girl or woman who complains of rape

or sexual molestation should be viewed with the aid of spectacles fitted with

lenses tinged with doubt, disbelief or suspicion.

26.In the case of State of Rajasthan Vs. Smt. Kalki and Anr. reported in

(1981) 2 SCC 752), the Apex Court has held that contradictions effecting the

core of the prosecution case are fatal. In the case of Narender Kumar Vs.

State (NCT of Delhi) reported in (2012) 7 SCC 161, the Supreme Court has

held that once the statement of the prosecutrix inspires confidence and is

accepted by the court as such, conviction can be based only on the solitary

evidence of the prosecutrix and no corroboration would be required, unless

there are compelling reasons which necessitate the court for corroboration of

her statement. Corroboration of testimony of the prosecutrix as a condition for

judicial reliance is not a requirement of law, but a guidance of prudence under

given facts and circumstances. Minor contradictions or insignificant

discrepancies should not be a ground for throwing out an otherwise reliable

prosecution witness. Thus, what is clear from the above, is that a conviction can

be based on the sole evidence of the prosecutrix, which is trustworthy and

Page No.# 11/21

which inspires the confidence of the Court.

27.In the case of RaiSandeep @ Deepu Vs. State (NCT of Delhi)

reported in (2012) 8 SCC 21, the Supreme Court has held that the testimony

of the prosecutrix which can be relied upon for convicting an accused, must be

of a sterling quality, consistent, natural and free from material contradictions. It

must remain the same from the start to the end.

28.As can be seen from the evidence of PW-6 and DW-2, Rs. 1 (one) lakh

had been paid to the grandmother (PW-1), so that PW-1 remains silent about

the sexual abuse of the victim by the appellant. It has also been implied that

due to PW-1 coming to know of the compensation scheme made for victims of

sexual offences, PW-1 being greedy for the money, had filed the FIR. The above

allegations against the PW-1 does not take away the fact that the issue herein

lies to whether the victim had been sexually abused by the appellant just

because the grandmother (PW-1) may have been guilty of being greedy, the

present case is not about the PW-1 but regarding the rape of PW-2 by the

appellant.

29.The evidence of DW-1, who is the step brother of the victim is to the

effect that the victim had sex with her 4 years old step brother Lalpeklhlua. This

has also been stated by the appellant in his examination under section 313

Cr.P.C, where he has answered to question no. 19 that he knew that the victim

had sexual relationship with her brother Lalruatfela and not with the appellant.

The name of the person with whom the victim had sexual relationship is

different, as given by DW-1 in his testimony and by the appellant in his answer

to question no. 19 in his 313 Cr.P.C. examination.

Page No.# 12/21

30.It is surprising that the allegation of the victim having sex with her brother

is brought out for the first time in the evidence of DW-1 and in the 313 Cr.P.C.

statement of the appellant. The same should have been brought out at the time

of cross-examination of the prosecution witnesses. PW-6, the mother of the

victim would also have known about, if the same was true. The victim and other

Prosecution witnesses were never confronted with the above very serious

allegation. In fact, the victim should have been severely

reprimanded/admonished by PW-6 and the appellant, if it were true. The silence

of PW-6 and the appellant prior to the trial on this score leads us to believe that

the said allegation is not true and just an after-thought to divert the focus/issue

in this case.

31.The appellant in his 313 Cr.P.C. examination has also stated that the

allegation made against him was totally wrong and that he loved the victim, as

much as, he loved his biological children. He also stated in the answer to

question no. 23 that the victim had a weakness relating to sex and though she

was young, she sent love letters to her neighbours. Further, the appellant stated

that her biological daughter (DW-1) saw the victim acting in the sexy manner.

Further, the victim is to ask her neighbour for sex. He further stated that the

case arose due to the appellant’s refusal to meet the demand of PW-1 to pay

Rs. 50,000/- to withdraw the FIR. In his examination under section 313 Cr.P.C.,

the appellant also stated that the false allegation has been made against him

because he did not allow the victim to use the mobile handset as she liked.

32.As can be seen from the allegations made by the appellant against the

victim, the victim is sought to be projected by the appellant as a loose character,

who has a weakness for sex. However, we have got to remember that it is not

Page No.# 13/21

the character of the 12 year old victim that is on trial in this case, but the issue

of whether the appellant had raped the minor girl. The alleged greedy character

of the grandmother and the alleged immoral character of the victim are not the

issue that are to be decided, though the same can be considered to be

attending factors, when considering the subject matter of rape in it’s entirety. It

should however be remembered that the attempt to mask the issue by the

appellant and discredit the victim does not change the root of the matter.

33.In the present case, there is a delay in filing the FIR, inasmuch as, the

offence had been committed upon the victim during her stay in Lunglei from

March, 2020 till October, 2021, while the FIR had been filed only on 30.01.2022.

34.In the case of State of Himachal Pradesh Vs. Shree Kant Shekari,

reported in (2004) 8 SCC 153, the Supreme Court has held that delay in

lodging an FIR in a rape case cannot be used as a ritualistic formula for

discarding the prosecution case or doubting it’s authenticity, when the testimony

of the victim appears to be totally reliable, trustworthy and credible.

35.In the case of State of M.P. Vs. Ratan Singh&Ors., reported in

(2020) 12 SCC 630, the Hon’ble Supreme Court has held that there can be no

hard-and-fast rule which can be applied to determine the effect of delay in filing

the FIR and the Court is duty-bound to determine whether the explanation

afforded is plausible enough, based on the given facts and circumstances of

each case. Para 5 of the judgment of the Hon’ble Supreme Court in Ratan

Singh &Ors. (supra) states as follows:-

“5. To begin with, though the incident has taken place at about 9.00 am

on 30.08.1991 and though the names of all the 18 persons were known to

the complainant Khilan Singh, absolutely no valid reason was forthcoming

Page No.# 14/21

on record as to why there was a delay in lodging the FIR. The Courts

generally will not disbelieve the version of the eye witnesses even if there

is some delay in lodging the FIR, if the versions of the eye witnesses are

reliable and trustworthy. However, the delay needs to be explained. This

Court, in Apren Joseph v. State of Kerala, (1973) 3 SCC 114, emphasised

that since a promptly filed FIR reflects reduced chances of embellishment,

fabrication or distortion in memory, in cases of delay in filing the FIR it is

important to assess the explanation therefore, to look for possible ulterior

motives, and to assess its effect on the credibility of the prosecution

version. The following observations of the Court are pertinent in this

regard:

“11. Now first information report is a report relating to the

commission of an offence given to the police and recorded by it

under Section 154, CrPC. As observed by the Privy Council in King

Emperor v. KhwajaNazir Ahmad, [AIR 1945 PC 18 : ILR 1945 Lah1 :

71 IA 203] the receipt and recording of information report by the

police is not a condition precedent to the setting in motion of a

criminal investigation. Nor does the statute provide that such

information report can only be made by an eye witness. First

information report under Section 154 is not even considered a

substantive piece of evidence. It can only be used to corroborate or

contradict the informant's evidence in court. But this information

when recorded is the basis of the case set up by the informant. It is

very useful if recorded before there is time and opportunity to

embellish or before the informant's memory fades. Undue

unreasonable delay in lodging the FIR, therefore, inevitably gives

rise to suspicion which puts the court on guard to look for the

possible motive and the explanation for the delay and consider its

effect on the trustworthiness or otherwise of the prosecution

version. In our opinion, no duration of time in the abstract can be

fixed as reasonable for giving information of a crime to the police,

the question of reasonable time being a matter for determination by

the court in each case. Mere delay in lodging the first information

report with the police is, therefore, not necessarily, as a matter of

Page No.# 15/21

law, fatal to the prosecution. The effect of delay in doing so in the

light of the plausibility of the explanation forthcoming for such delay

accordingly must fall for consideration on all the facts and

circumstances of a given case.”

(emphasis supplied) “

36.In the case of Hariprasad alias Kishan Sahu Vs. State of

Chattisgarh, reported in (2024) 2 SCC 557, the Hon’ble Supreme Court held

that the delay in lodging an FIR, by itself cannot be regarded as sufficient

ground to draw an adverse inference against the prosecution case, nor could it

be treated to be fatal to the case of prosecution. The Court has to ascertain the

causes for the delay, having regard to the facts and circumstances of the case.

If the causes are not attributable to any effort to concoct a version, mere delay

by itself would not be fatal to the case of the prosecution.

37.In the above case of Hariprasad alias Kishan Sahu(supra), the

Supreme Court further held that the object of insisting upon prompt lodging of

the report to the police in respect of the commission of an offence is to obtain

early information regarding the circumstances in which the crime was

committed, the names of actual culprits and the part played by them as well as

names of the eye witnesses present at the scene of occurrence.

38.In the case of Apren Joseph alias Current Kunjunju and Ors. Vs.

The State of Kerala, reported in (1973) 3 SCC 114, the Hon’ble Supreme

Court has held that FIR is very useful if recorded before there is time and

opportunity to embellish, or before the informant’s memory fades. Undue or

unreasonable delay in lodging the FIR, therefore, may give rise to suspicion

which put the Court on guard to look for the possible motive and the

Page No.# 16/21

explanation for the delay and consider its effect on the trustworthiness or

otherwise of the prosecution version.

39.In the case of Wahid Khan Vs. State of Madhya Pradesh, reported in

(2010) 2 SCC 9, the Hon’ble Supreme Court has held that it is a matter of

common law that in Indian society any girl or woman would not make an

allegation of rape, as she is fully aware of the repercussions flowing therefrom.

If it is found to be false, she would be looked by the society with contempt

throughout her life. For an unmarried girl, it would be difficult to find a suitable

groom. Therefore, unless an offence has really been committed, a girl or a

woman would be extremely reluctant even to admit that any such incident had

taken place which is likely to reflect on her chastity. She would also be

conscious of the danger of being ostracized by the society and it would be

difficult for her to survive in Indian society.

40.In the present case, the victim is a child who was approximately between

11-12 years old at the time of the commission of the offence. It would be

natural for a young child to keep to herself the trauma of being raped, especially

when the perpetrator of the crime is her step-father, who holds a position of

trust for the child. The victim’s mother in this case is the wife of the said

perpetrator of the crime and it is not surprising that there would be some

reluctance on the part of the victim to blame her step-father, especially, when

she has been threatened not to spill the beans or else her mother would be

divorced and herself killed. We are aware that there appears to be something

amiss in the prosecution case, inasmuch as, the mother had apparently not

been told by the victim of the offence committed by her husband to the victim.

Page No.# 17/21

This is surprising as the mother should have been the first person to whom the

victim should have turned to besides PW-1. However, we are unable to turn a

Nelson’s eye to the evidence that has been adduced and which has not been

shaken by the appellant. Though there is the evidence of PW-6 to the effect

that Rs.1 lakh had been paid to PW-1, the said amount of payment was only for

the purpose of keeping silent with regard to the allegation of rape committed

upon the victim. There is nothing to show that the alleged offence did not

happen. Coming back to the issue of the delay in filing the FIR, the victim being

a young girl of around 12 years of age it is very plausible for a young girl to her

feelings and emotions bottled up inside her, while she was still living in the

house of the perpetrator of the crime. The Opening up of the victim, little by

little, initially towards her cousin and Aunt later on is not surprising, as a minor

girl could need time to come out fully with the traumatic event/s. In fact, when

older girls are reluctant to speak out regarding having been raped, as has been

stated by the Supreme Court in the case of Wahid Khan (supra), there does

not appear to be any wrong in the delay on the part of the victim to come out

with the allegation of rape on a much later date.

41.The only reason given by the appellant for the victim to have alleged that

he had raped her was because he did not allow her to use the mobile as she

liked. This does not appear to be plausible, as the victim had left his house in

October, 2011 and the FIR had been filed on 31.01.2022. It is highly unlikely

for a 12 year old girl to hold a grudge for so long a time and take revenge by

making allegations in relation to a very heinous crime 3 months later. Thus, we

do not have any reason to doubt the authenticity of the FIR, only because of the

delay in filing it.

Page No.# 18/21

42.On considering the evidence of the victim which is corroborated by the

evidence of the Doctor, which is to the effect that there was a tear in the hymen

of the victim, we are of the view that a case of penetrative sexual assault has

been proved by the prosecution.

43.The above being said, the next question to be decided is as to whether

the appellant could have been convicted under Section 6 of the POCSO Act,

inasmuch as, there is nothing to indicate the exact date, month or year in which

the victim had been subjected to sexual intercourse. The evidence only reflects

the fact that the victim was in the appellant’s house from March, 2020 till

October, 2021. The victim’s date of birth being 31.07.2009, the victim would

have been 12 years of age on 31.07.2021. The offence/s could have occurred

prior to 31.07.2021 or on/after 01.08.2021 and till the time the victim left the

house of the appellant in October, 2021. If the offences had occurred after

31.07.2021, the appellant could not be said to have committed the offence

under Section 5(m) of the POCSO Act, 2012, inasmuch as, she would not have

been below 12 years of age on 31.07.2021.

44. In the case of State of Odisha Vs. Banabihari Mohapatra and Anr.,

reported in (2021) 15 SCC 268, the Hon’ble Supreme Court has held that if

two views are possible on the evidence adduced in the case, one pointing to the

guilt of the accused and the other to his innocence, the view which is favourable

to the accused should be adopted. In the present case, two views are possible

as to when the offence had occurred, which could have been prior to31.07.2021

or from 31.07.2021. If we are to hold that the offence had occurred prior

to31.07.2021, then a case under Section 5(m) of the POCSO Act, 2012 is made

out. On the other hand, if the offence had been committed from 31.07.2021, a

Page No.# 19/21

case of penetrative sexual assault punishable under Section 4(2) of the POCSO

Act is made out.

45.In terms of the judgment of the Hon’ble Supreme Court in the case of

BanabihariMohapatra and Anr. (supra), we take the view that the

offence/s had occurred subsequent to 31.07.2021 by leaning towards the

appellant.

46.The learned Trial Court has however not made any finding as to why

Section 6 of the POCSO Act has been applied it, except for stating that the

victim was born on 31.07.2009 and was 11 years of age when the victim was

subjected to continued rape on many occasions. However, the age of the victim

at the time of commission of the offences is not proved by the evidence on

record, inasmuch as, the victim could have been 12 years of age at the time of

the offences.

47.Section 4 of the POCSO Act, 2012 states as follows:-

“4. Punishment for penetrative sexual assault.

[(1)] Whoever commits penetrative sexual assault shall be punished with

imprisonment of either description for a term which shall not be less

than

2

[ten years] but which may extend to imprisonment for life, and shall

also be liable to fine.

[(2) Whoever commits penetrative sexual assault on a child below sixteen

years of age shall be punished with imprisonment for a term which shall

not be less than twenty years, but which may extend to imprisonment for

life, which shall mean imprisonment for the remainder of natural life of

that person and shall also be liable to fine.

(3) The fine imposed under sub-section (1) shall be just and reasonable

and paid to the victim to meet the medical expenses and rehabilitation of

such victim.]”

Page No.# 20/21

48.In view of the above reasons, the conviction and sentence of the appellant

under Section 6 of the POCSO Act, 2012 is set aside. The conviction and

sentence of the appellant would have to be done under Section 4(2) of the

POCSO Act. The charge under section 6 of the POCSO Act is accordingly altered

to Section 4(2) of the POCSO Act. Though section 217 Cr.P.C. provides that

whenever charge is altered by the Court after the commencement of the trial,

the Prosecutor and the accused shall be allowed to recall or re-summon and

examine any witness with reference to such alteration or addition, except where

the Court feels that the same would be used by the prosecutor or the accused

for the purpose of delay or defeating the ends of justice. In the present case,

when there can be no major change in the defence only because of the change

of age of the victim, there is no reason to recall a witness. Further, the non-

recall of any witness would not in any way prejudice the case of the appellant

herein.

49.As the penetrative sexual assault had been committed on a child below 16

years of age, the appellant is accordingly convicted under Section 4(2) of the

POCSO Act, 2012, for committing penetrative sexual assault on the victim, who

was below 16 years. Consequently, the appellant is sentenced to undergo

Rigorous Imprisonment for a period of 20 (twenty) years and to pay a fine of

Rs. 5,000/-, i/d Simple Imprisonment for 1 (one) month under section 4(2) of

the POCSO Act. Consequently, the impugned Judgment and Order dated

27.06.2023 passed by the learned Special Court, Lunglei, in Criminal Trial No.

87/2022 is hereby modified to the extent indicated above.

50.Send back the TCR.

Page No.# 21/21

51.In appreciation of the assistance provided by Mrs. H. Lalmalsawmi, learned

Amicus Curiae and Mr. Lalrokunga Pautu, learned Legal Aid Counsel, their fees

should be paid by the Mizoram State Legal Services Authorities, as per norms.

JUDGE CHIEF JUSTICE

Comparing Assistant