JUDGMENT :

Heard Mr. B. Lalramenga, learned counsel for the appellant and Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor for the State respondent.

2. This is an appeal against the impugned Judgment & Order dated 07.09.2020 passed by the Special Court, POCSO Act, Aizawl in SC No.233 of 2015 arising out of Bawngkawn PS Case No.232/2015 by which the appellant was convicted under Section 4 of POCSO Act and sentenced to undergo 7 (seven) years Simple Imprisonment with a fine of Rs.5000/-in default SI 1 (one) month vide its Order dated 06.10.2022.

3. Brief facts of the case is that a written FIR was received at the P.S Bawngkawn on 22.09.2015 from one R. Lalbeiseia/complainant stating that his daughter ‘X’ age 12 years had been sexually assaulted by the accused/appellant on the World Bank road where he had taken her by his Car. The girl was subsequently found by her parents at Ramhlun Vengthar. The case was registered as Case No.232/2015 dated 22.09.2015 under section 4 of POCSO Act and investigated into.

4. During investigation the informant and the alleged victim ‘X’ were examined. The pretrial statement of ‘X’ was taken on 28.09.2014 by the CJM, her birth certificate was seized which shows that she was born on 05.07.2003 and still a child. Her medical examination was conducted on 6.10.2015 which shows that she had an old rapture of the hymen, the accused/appellant was also arrested on 22.09.2015. The statement of the other witness were taken and from the investigation a prima facie case under section 4 of POCSO Act was found against the accused appellant and charge-sheet submitted accordingly.

5. The learned Special Court POCSO Act framed charge against the accused under section 4 POCSO Act on 09.02.2017, wherein the accused appellant pleaded not guilty and claimed to be trial.

6. During the course of the trial, the prosecution examined 5 (five) of the 8 (eight) prosecution witnesses listed in the charge-sheet to prove their case. The accused was then examined under section 313 Cr.PC wherein, he denial all the incriminating evidence against him, however, no defence witnesses were produced. The learned Trial Court after hearing, the counsels for both the parties passed the impugned order dated 07.09.2022 convicting the appellant under section 4 of POCSO Act and sentencing him to undergo Simple Imprisonment 7 years and pay a fine of Rs.5,000/-Id SI 1 (one) month. Hence this appeal.

7. Mr. B. Lalramenga, learned counsel for the appellant submits that the alleged victim in her statement made under section 164 Cr.PC had mentioned that the appellant had touched her private part and there is no mentioned of insertion of his finger into her private part as mentioned in the FIR submitted by the complainant and in her deposition in the court wherein she had mentioned that the appellant had inserted his finger into her private part. Other inconsistencies were also found in her statement recorded u/s 164 Cr.PC and her deposition in the Court. Due to the inconsistencies in her statement she cannot be considered a sterling witness.

8. The learned counsel for the appellant also submits that the prosecution, out of the 8 (eight) witnesses cited in the charge-sheet has examined only 5 (five) witnesses, wherein the witness name Rebecca has been dropped, this Rebecca is an important witness to establish the case of the prosecution. The evidence given by Pw-1 father of the victim ‘X’ is only hearsay. Pw 2 mother of the alleged victim is only the seizure witness, Pw-7 is the medical Doctor who examined the alleged victim and the medical evidence does not implicate the appellant since the appellant did not have sexual intercourse with the victim. This case rest on the sole testimony of the alleged victim ‘X’ and the testimony of ‘X’ is clearly not reliable.

The case I/O has based his case solely on the testimony of the victim ‘X’. The credibility of the alleged victim ‘X’ is highly questionable since it is seen that she had spent the night in the house