JUDGMENT :

Nelson Sailo, J.

1. This is an appeal from jail directed against the Judgment and Order dated 12.10.2015 passed by the learned Sessions Judge, Aizawl in SR No. 22 of 2014 A/o Crl. Trl. No. 2134 of 2013 u/s. 376 (2)(i) of the Indian Penal Code (IPC) convicting the appellant under the aforesaid section of law. On being convicted as such, the appellant was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,000/- and in default thereof, to undergo simple imprisonment for one (1) month.

2. The case of the prosecution in brief is that on 02.12.2013, a written FIR was submitted by Lalmalsawmi (PW-1) of Zuangtui to the effect that on 01.12.2013, the appellant committed an offence of penetrative sexual assault upon her daughter who was a minor and 12 years of age. As a result, Bawngkawn P.S Case No. 224/2013 dated 02.12.2013 under Section 376 (2)(i) IPC r/w Section 4 of the POCSO Act, 2012 was registered and the case investigated into by the investigating officer (Case 10). During the course of investigation, the case I.O. examined the complainant as well as the victim, and records their statements. The victim was also forwarded to the Civil Hospital for medical examination. Thereafter, upon finding a prima facie case against the appellant under the aforesaid sections of law, the case I.O. submitted the charge-sheet.

3. The Trial Court thereafter framed charge against the appellant under Section 376 (2) (i) IPC and to which, the appellant pleaded not guilty. As such, trial commenced against the appellant and during which time, the prosecution examined 8 (eight) prosecution witnesses while the defence did not examine any defence witness. Upon conclusion of the prosecution evidence, the appellant was examined under Section 313 Cr.P.C. Thereafter, upon hearing the rival parties, the learned Trial Court vide the impugned Judgment & Order convicted and sentenced the appellant in the manner as already indicated herein above.

4. Mr. Aldrin Lallawmzuala, the learned Amicus Curiae appearing for the appellant submits that the prosecution failed to establish the fact that penetration on the vagina of the victim girl had taken place to constitute rape. In fact, as per the report of the medical doctor, the victim's hymen was intact and that there were no injuries on her person and in her genital area. Referring to Section 375 of the IPC, the learned Amicus Curiae submits that in order to constitute rape, there has to be a penetration of the penis into the vagina to any extent. The same, however in the instant case, has not been established and therefore, the conviction of the appellant under Section 376 (2)(i) IPC cannot be sustained and at the most, the appellant may be guilty of having attempted to commit rape. As such, the charge may be altered to Section 376 r/w Section 511 of the IPC. The learned Amicus Curiae also draws the attention of this Court to the statements made by the appellant in his examination under Section 313 of the Cr.P.C. to show that rape was not committed upon the prosecutrix. The learned Amicus Curiae in support of his submissions relies upon the case of Ram Narayan Jha vs. State of Assam, 1999 (1) GLT 54.

5. Appearing for the State, Mr. C. Zoramchhana, learned Public Prosecutor by referring to Section 375 of the IPC submits that indeed in order to constitute rape, there has to be penetration of the penis to any extent into the vagina. That since the prosecutrix was only 12 years of age at the time of the incident, it would be immaterial as to whether she had given her consent or not, as provided under the sixth clause of Section 375 IPC. Further referring to Section 376 (2)(i) IPC, the learned Public Prosecutor submits that the said provision is for punishment of commission of rape on a woman who is under 16 years of age. The punishment prescribed is rigorous imprisonment for a term which shall not be less than 10 (ten) years and which may extend to imprisonment for life, which shall me