ORDER :

1. Heard Mrs. Linda L. Fambawl, learned Public Prosecutor for the State appellant and Mr. Victor L. Ralte, learned amicus curiae for the respondent.

2. This is an appeal filed against the judgment and order dated 28.11.2017 passed by the Court of Special Judge, Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) in S.C No. 113/2015 A/o Crl. Tr. No. 953/2015 convicting the respondent under section 10 of the POCSO Act and thereafter, sentencing him to rigorous imprisonment for 4 years with fine of Rs. 1,000 and in default, to undergo 15 days simple imprisonment vide the order of sentence dated 29.11.2017.

3. The case of the prosecution in brief is that on 11.4.2015, a written FIR was submitted by Zohmingthangi, President MHIP, Sakawrtuichhun to the effect that the respondent had repeatedly raped his own daughter since the year 2014 and that the last incident was on 11.4.2015. The parents of the victim girl were divorced and that she and her other sisters lived with their father, i.e., the respondent. The victim girl did not have the courage to reveal about the incident earlier and that she could do the same only on the night of 11.4.2015. Accordingly, Vaivakawn P.S Case No. 39/2015 dated 11.4.2015 under section 376(2)(f)(i) and (n) of the Penal Code, 1860 (‘IPC’) read with section 6 of the POCSO Act was registered and the case investigated into. Upon completion of the investigation and finding a prima facie case against the respondent under section 6 of the POCSO Act, the case Investigating Officer (I.O.) filed the charge sheet before the court. Charge was then framed against the respondent under section 6 of the POCSO Act and to which, he pleaded not guilty and claimed for trial. During trial, the prosecution examined as many as 10 prosecution witnesses out of the listed 14 prosecution witnesses. As for the respondent, he did not examine any witness in his defence. The respondent was examined under section 313, Cr.PC and then after, the parties were heard, the learned trial court convicted and sentenced the respondent under section 10 of the POCSO Act in the manner already stated herein above. Being aggrieved with the alteration of the charge and the quantum of sentence imposed, the State has preferred the instant appeal.

4. Mrs. Linda L. Fambawl, learned Public Prosecutor submits that the grounds of appeal are mainly two fold. Firstly, charge was framed against the respondent under section 6 of the POCSO Act but the learned trial court in its judgment and order has altered the same to one under section 10 of the POCSO Act and the same is only misconceived, unjustified and contrary to the evidence on record. Secondly, the learned trial court could not have imposed the punishment of rigorous imprisonment for 4 years upon the respondent after convicting him under section 10 of the POCSO Act, inasmuch as, the minimum sentence prescribed under the said section is 5 years. Referring to the evidence of the prosecutrix, who was examined as PW-6, the learned Addl. Public Prosecutor submits that she had clearly stated that the respondent who is her biological father after separation with her mother in the year 2014, started assaulting her sexually at night while sleeping and in the presence of her 2 younger sisters who usually were asleep. He undressed her under-pants and took off his pants as well and then, he entered his penis into her private part. Sometimes, he climbed upon her and sometimes he assaulted her from her side. Sometimes, she felt wet in her body and in her under-pant from what came out from her father's male organ. Her father sexually assaulted her every night and he told her not to tell anybody or else, he would kill her. However, when her father was not at home, she narrated her misfortune to their neighbour Pu. Rinawma, who was also her father's friend. The YMA members then came and took her father to the Police and she was taken to the Medical Officer for medical examination. The learned Addl. Pu