JUDGMENT

Michael Zothankhuma, J. - Heard Mr. C.Lalfakzuala, learned Amicus Curiae appearing for the appellant as well as Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor, Mizoram.

2. The appellant has challenged the impugned Judgment & Order dated 10.07.2018 passed by the Special Court, POCSO Act, Aizawl in SC No. 30 of 2017, by which the appellant has been convicted under Section 6 of the POCSO Act, 2012 and sentenced to undergo 12 years Rigorous Imprisonment with a fine of Rs.20,000/-, in default S.I. for 6 months, vide Sentence Order dated 16.07.2018.

3. The prosecution case in brief is that an FIR was submitted with the Officer-in-Charge, Vaivakawn Police Station, Aizawl on 02.11.2016 by one Lalchawimawii, W/o Lalrinenga, R/o Central Jail Veng, Aizawl, stating that her daughter aged 15 years, was sexually assaulted by the complainant/informants younger brother, Lalruatsanga aged 27 years on 27.10.2016. In pursuance to the FIR that had been submitted on 02.11.2016, Vaivakawn Police Station Case No.179/2016 was registered under Section 6 of the POCSO Act, 2012 read with Section 506 IPC on 02.11.2016.

4. The victim girl was medically examined on 02.11.2016 by a Medical Doctor and the appellant was also arrested on 02.11.2016. During investigation of the case by the Police I.O., the statement of 6 (six) prosecution witnesses were recorded and the victim girl also give her judicial statement to the Judicial Magistrate under Section 164 Cr.P.C on 04.11.2016. Thereafter, charge sheet was filed on 18.01.2017.

5. Charge under section 6 of the POCSO Act, 2012 was framed against the appellant on 15.03.2017, wherein the appellant pleaded not guilty and prayed for trial. After examination of 6 (six) prosecution witnesses and 3 (three) defense witnesses, the appellant was examined by the Trial Court under Section 313 Cr.P.C on 03.10.2017, where he denied having committed any sexual assault upon the victim girl.

6. The learned Trial Court, after hearing the parties found the appellant to be guilty and convicted him under section 6 of the POCSO Act, 2012, vide the impugned Judgment & Order dated 10.07.2018. Sentence hearing was held on 16.07.2018 and the appellant was convicted vide Sentence Order dated 16.07.2018, whereby he was punished to undergo R.I. for 12 years with a fine of Rs.20,000 /-, in default S.I. for 6 months.

7. Being aggrieved, the appellant has filed the present appeal.

8. Mr. C. Lalfakzuala, the learned Amicus Curiae submits that the paper book does not contain the statement of the victim made before the police. He also submits that there is a difference in the statement given by the victim girl before the Judicial Magistrate on 04.11.2016 and in her evidence given before the Court on 29.03.2017. He submits that while the evidence of the victim girl was to the effect that the appellant had undressed the victim by removing her short pant and that he had also undressed himself, the same was not a part of the statement given by the victim girl to the Judicial Officer on 04.11.2016. He submits that the above fact shows that the victim girl had improved upon her earlier statement during the trial proceedings.

9. The learned Amicus Curiae also submits that while Section 27 of the POCSO Act, 2012 required the victim girl to be examined by a woman doctor, the records showed that the medical examination had been conducted by a male doctor, which is against the statutory law. He also submits that the statement of the victim made before a Magistrate or a Police Officer has to be done in the presence of the parents of the child or any other person in whom the child has trust or confidence, as required under Section 26 of the POCSO Act, 2012. As neither the parents or any other person who had the trust and confidence of the child were not present at the time of examination of the victim girl by the Police or Magistrate, the said statement was not admissible in evidence. He also submits that there is a delay of around 6 days in