Consent of a minor is immaterial and cannot render conviction invalid under Section 376 IPC.

H. Baruah, J.

1. Appellant Lalawmpuia stood trial before the court of Additional District and Sessions Judge, Lunglei under the charge 376(1) IPC in Criminal Trial No. 8 of 2008 for commission of rape sometime in the month of November, 2007 on the victim, (PW-3). The learned Additional Sessions Judge on the basis of the facts and evidence on records convicted the Appellant under 376(1) IPC and sentenced him to undergo S.I for four years.

2. Being aggrieved thereby, the Appellant preferred this appeal from jail.

3. The brief facts for the purpose of this appeal may be recorded as under:

The family of the victim and the Appellant were neighbors. Both the family at the relevant point of time was living in the same building. Family of the Appellant stayed in the upper story while the family of the victim stayed in the down floor. Members of both the family had visiting terms. Informant, R. Laltluangpuii, (PW-1) is the mother of the victim(PW-3). On 9-1-2008 she filed an FIR (Ext. P-1) with the Officer-in-Charge of Lunglei Police station contending therein that in the middle of Nov. 2007 her nephew (PW-3) aged about 12 years was raped twice at Sabji Bazar and Lunglawn, Lunglei by the Appellant. Having received this information in writing Lunglei P.S Case No. 8 of 2008 were registered under Section 376(1) IPC. The informant (PW-1) in her FIR (P-1) stated that the incident was not within their knowledge since PW-3 was threatened by the Appellant herein.

4. Investigation started. During investigation PW-3 was medically examined by Dr. Zonunmawii Pachuau (PW5). Appellant was arrested and produced before the Magistrate to record his confessional statement under Section 164 Cr.P.C. However, the Appellant did not make confessional statement before the Magistrate rather pleaded his innocence.

5. During trial prosecution examined six witnesses altogether and proved certain documents to bring home the charge against the Appellant. Appellant was thoroughly examined under Section313 Cr.P.C. No defense evidence was adduced. The learned trial court after taking into consideration the evidence on record both oral and documentary convicted the Appellant under Section 376(1) and sentenced as indicated above.

6. We have heard Mr. Vanlalenmawia, learned Amicus Curiae for the Appellant and Mrs. Helen Dawnglinai, learned Addl. P.P. for the State of Mizoram.

7. Mr. Vanlalenmawia, learned Amicus Curiae at the very out set of his argument submitted that the impugned judgment and order of conviction and sentence cannot stand in law, mostly on the ground of delay in filing the FIR and also on the evidence on record, evidence of PW-3 in particular. Since their evidence appear to be not truthful and acceptable it was argued by him that though the offence alleged to have been committed in the month of November, 2007, no report was lodged with the police immediately and the factor of commission of the alleged offence was not divulged by the victim neither to her mother nor to her aunt immediately after the occurrence. Further it was argued by him that there is no evidence to show that the victim was a minor at the relevant point of time. According to him no ossification test was conducted by PW-5, the doctor for the proof of age of the victim (PW-3). Referring to the evidence, evidence of PW-3 in particular it was submitted that she was allegedly raped twice by the Appellant and it was possible on the part of the Appellant she being a consenting party.

8. Mr. Vanlalenmawia, learned Amicus Curiae further submitted that the victim consented for sex with the Appellant and therefore, conviction of the Appellant cannot sustain. Further it was argued taking recourse to the evidence of the doctor (PW-5) that the hymen being not completely turned sexual intercourse with the Appellant cannot be said to have occurred. According to doctor (PW-5) hymen was partially ruptured and during examination he also detected mild redness in the valve. In the cross-examination this wit