S. Serto, J.

This is a Jail appeal of the person named above who had been convicted under Section 376 (1) and Section 506 of IPC by the Judgment dated 01.12.2015 of the learned Addl. Session Judge, Aizawl Judicial District passed in Session Case No. 75/2014 Criminal Trial No. 1076/2014.

2. The brief facts of the case leading to the trial and conviction of the appellant is as follows:-

That on 21.05.2014, a complaint was lodged to the Officer-in-Charge of Kawrthah Police Station by the prosecutrix stating that at around 1:00 a.m. to 2:00 am of 21.05.2014, her nephew Mr. Lalbiaksanga (the appellant/convict) came to her residence and woke her up, and when she opened the door for him, he pulled her down to sit next to him and thereafter grabbed a kitchen knife and threatened her and raped her outside her house. Following the complaint, the FIR, Kawrthah P.S. Case No. 4 of 2014 was registered against the appellant under Section 376 (1) IPC and the accused was arrested on the same day. In the process of the investigation, the appellant/convict and the prosecutrix were medically examined. And on completion of the investigation, charge sheet was filed and the learned Additional Sessions Judge framed the charge on 21.10.2014 under Section 376 (2) (1) of IPC and Section 506 of the same Code. In the trial, prosecution examined as many as 8 witnesses. But the appellant/convict did not produce and examined any defense witness. Since the appellant/convict could not afford to hire the service of a lawyer, Mr. S. Pradhan, an Advocate was appointed to defend him at the expense of the State. The learned Trial Court after hearing the parties and having appreciated the evidence given by the witnesses, found the appellant/convict guilty of having committed the offence punishable under Section 376(1) of IPC and the offence punishable under Section 506 of the same Code. Therefore, sentenced him to undergo 7 years Rigorous Imprisonment and a fine of Rs. 1000/-, and in the event of default in making payment of the same, to a further imprisonment for a period of 10 days.

3. Being aggrieved, the appellant has filed this appeal from jail which is forwarded by the Jail Authorities. The main ground of the appeal is that the sexual intercourse the appellant had with the prosecutrix was consensual and there was no evidence which proved that it was forced upon the prosecutrix or it was without her consent and against her will. It is also stated in the appeal petition that the knife which was alleged to have been used by the appellant in threatening the victim and forcing her to have sex with him was ceased without following seizure procedure and it was not even sent to the FSL to make out or prove whether his finger prints were present on it or not. Further, the appellant stated that since he was young and inexperience, he could not satisfy the prosecutrix while having sex with her, therefore, she was not satisfied and that made her angry and led her to accuse him of committing rape upon her. He also mentioned that the prosecutrix is of loose character and used to have other boyfriends also though she is married. Lastly, the appellant prayed for his acquittal as he is the only bread earner for his parents who are already aged.

4. I have heard Mr. A.R. Malhotra, learned Amicus Curiae appearing on behalf of the appellant and also Mr. A.K Rokhum, learned Public Prosecutor, Mizoram appearing on behalf of the respondents.

The learned Amicus Curiae at the very outset submitted that though the accused was charged under Section 376 (2) (i) of the IPC, he was convicted under Section 376 (1) IPC and section 350 of the same Code without altering the charge. The Court under Section 216 of Cr.P.C has the power to alter the charge but instead of exercising such power went ahead with the trial and convicted the appellant under the other provision of IPC mentioned above. Therefore, the trial has been vitiated, as such, the case has to be remanded to the trial C