Point of Law : Medical examination report of the victim's girl shows that there was a recent tearing of her hymen, coupled with the testimony of the victim that she was raped by the appellant.

JUDGMENT :

Michael Zothankhuma, J.

Heard Mr. Joseph L. Renthlei, the learned Legal Aid Counsel appearing for the appellant. Mr. C. Zoramchhana, learned Public Prosecutor appears for the State.

2. This appeal has been filed against the Judgment & Order dated 21.08.2018 passed by the Special Court, Siaha in SR No. 4/2018, by which the appellant has been convicted under Section 4 of the POCSO Act, 2012 and sentenced to undergo Rigorous Imprisonment for 20 years with a fine of Rs. 2000/-, in default Rigorous Imprisonment for 20 days, vide Order dated 24.08.2018.

3. The prosecution case is to the effect that a written FIR was submitted by one Mr. H. Lalmalsawma of Theiri village on 08.09.2017 at 12:30 noon to the effect that the appellant had forcefully taken his daughter (13 years) in the evening of 06.09.2017 at around 5:30 PM to RMSA School compound, Theiri village and raped her there. The appellant thereafter forcibly took the victim to his house at Theiva village and made her spend the night there. The informant and his brother-in-law recovered the victim from the house of the appellant on 07.09.2017 at around 2:00 AM. As the victim informed the informant that she had been raped by the appellant, the informant lodged an FIR in the Tuipang Police Station on 08.09.2017. The same was registered as Tuipang P.S. Case No. 4/2017 on 08.09.2017 under Section 4/6 of the POCSO Act, 2012. The victim girl was produced before the Medical Officer on 08.09.2017 at 2:00 PM for medical examination, wherein it was found that the hymen had been torn. The appellant, who had in the meantime, absconded gave himself up before the Tuipang Police Station on 12.09.2017.

4. The I.O., after investigation of the case, having found a prima facie case under Section 6 of the POCSO Act read with Section 363 IPC, to be established against the appellant, filed the charge sheet. Subsequent to the above, the learned Trial Court framed charge under Section 4 of the POCSO Act, 2012 against the appellant on 05.03.2018, wherein the appellant pleaded not guilty and claimed to be tried. During the trial, 14 prosecution witnesses were examined and after the appellant had been examined under Section 313 Cr.P.C., the learned Trial Court came to a finding that the appellant had committed penetrative sexual assault upon the minor victim in the Theiri RMSA School compound and also in the house of the appellant at Theiva village on the same night and thus convicted the appellant under Section 4 of the POCSO Act, 2012. The appellant was thereafter sentenced to undergo Rigorous Imprisonment for 20 years with a fine of Rs. 2000/-, in default Rigorous Imprisonment for 20 days vide Order dated 24.08.2018.

5. The appellant, being aggrieved by the sentence imposed upon him, vide the Order dated 24.08.2018 made in pursuant to the Judgment & Order dated 21.08.2018, has filed the present appeal, wherein his only prayer is to reduce the sentence imposed upon him to the minimum sentence possible.

6. Mr. Joseph L. Renthlei, the learned Legal Aid Counsel submits that besides what the appellant has adverted to in the appeal petition, he would like to challenge the impugned judgment and order on two grounds. Firstly, though the seizure memo shows that the blue and white mixed underwear of the victim had been seized by the Police, the same was not produced during trial, in spite of the statement made by the victim/prosecutrix that there was blood stain in her private parts due to the rape committed upon her by the appellant. Secondly, there is inconsistency in the statements given by the victim before the Police and during the trial. He submits that while the victim had stated to the Police that the appellant had raped her near the gate of the RMSA School, the victim in her evidence before the Trial Court had stated that she had been raped inside the compound of the RMSA School. He submits that due to the non-production of the material exhibit penetrative sexual assault was not proved. Also,