The main legal point established is that even minimal penetration constitutes an offense under the POCSO Act, and the testimony of the prosecutrix is sufficient evidence.

JUDGMENT

Michael Zothankhuma, J. - Heard Mr. Lalchhanliana Khiangte, learned Amicus Curiae and Mrs. Linda L. Fambawl, learned Additional Public Prosecutor, Mizoram.

2. This is an appeal from jail filed by the convict appellant against the impugned judgment & order 25.08.2017, passed by the Special Judge, POCSO Act, 2012, Siaha in SR No. 11/2017, by which the appellant has been convicted under Section 6 of the POCSO Act, 2012 and sentenced to undergo Rigorous Imprisonment for 15 years with a fine of Rs. 1,000/-, in default 10 days Simple Imprisonment vide order dated 29.08.2017.

3. The prosecution story in brief is that one Mr. Robin filed an FIR dated 10.02.2017, stating that his daughter, age 9 years, had been raped around midnight on 09.02.2017 by the appellant, when the appellant slept in the house of Mr. Robin, after having drinks. The appellant had again tried to rape the prosecutrix at around 5 pm on 10.02.2017.

4. In pursuance to the FIR filed by Robin (PW-1), who is the father of the prosecutrix, Siaha P.S Case No. 12/2017 under Section 6 of the POCSO Act, 2012 was registered on 10.02.2017. The prosecutrix was also sent for medical examination wherein, the medical report stated that the hymen of the prosecutrix was intact.

5. After investigation of the case, the I/O having found a prima facie case against the appellant under Section 6 of the POCSO Act, 2012, filed the charge- sheet.

6. The learned Trial Court framed charge under Section 6 of the POCSO Act, 2012, to which he pleaded not guilty. Thereafter, 6 (six) prosecution witnesses were examined during the trial and after examining the appellant under Section 313 Cr.PC, the Trial Court convicted the appellant vide the impugned judgment & order dated 25.08.2017 and sentenced him to undergo Rigorous Imprisonment for 15 years with a fine of Rs. 1,000/-, in default Simple Imprisonment for 10 days, vide order 29.08.2017.

7. The appeal has been filed by the appellant with a prayer to reduce the sentence imposed upon him to the bare minimum.

8. The learned Amicus Curiae submits that the medical report given by the Doctor states that the hymen of the prosecutrix was intact and as the evidence of the Doctor during cross-examination is to the effect that though there was an attempt for penetration, there was no sign of actual penetration, the appellant could not have been convicted under Section 6 of the POCSO Act, 2012. He submits that as the evidence given by the Doctor shows that there was no penetration of the vagina by the appellant, the appellant could at best be convicted only under Section 8 of the POCSO Act, 2012 for sexual assault and not under Section 6, for aggravated penetrative sexual assault.

9. The learned Amicus Curiae also submits that the finding of the learned Trial Court in paragraph No. 12 of the impugned judgment & order is to the effect that there was no penetration of the vagina of the prosecutrix by the appellant. As such, there being no finding of penetrative sexual assault as defined under the POCSO Act, 2012, the impugned judgment & order convicting the appellant under Section 6 of the POCSO Act, 2012 should be set aside. He submits that in the alternative, the sentenced imposed upon the appellant should be reduced to the minimum sentence applicable under Section 6 of the POCSO Act, 2012.

10. Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor on the other hand submits that the evidence of the prosecutrix clearly proves the fact that there has been penetration of the vagina by the appellant, even though the penetration may not have ruptured the hymen. She submits that it is not necessary for the hymen to be ruptured as the penetration might be minimal and that the difference in the penetration level does not mean that no penetration of the vagina had taken place. She also submits that though the medical report and evidence of the Doctor does not disclose evidence of sexual intercourse, yet even in the absence of any corroboration of medical evid