JUDGMENT :

Heard Mr. C. Tlanthianghlima, learned counsel appearing for the appellant. Also heard Mrs. Linda L. Fambawl, learned Addl. P.P., Mizoram, representing the State respondent.

2. This appeal is directed against the judgment and order dated 05.07.2022, passed by the learned Special Judge, Fast Track Special Court (Rape & POCSO Act) in SC No.22/2022 (Ref: Crl. Trl. No.380/2020), Mizoram, Aizawl. It is to be mentioned here that vide impugned judgment and order, dated 05.07.2022, the learned Court below has convicted the appellant -Sh. P. Thangbuaia, under Section 10 of the POCSO Act, and sentenced him to suffer rigorous imprisonment for a period of 5 years and also to pay a fine of Rs.3,000/-, with default stipulation.

3. The factual background, leading to filing of the present appeal, is adumbrated herein below:-

“On 19.08.2019, one Sh. R. Lalramnghaka, resident of Ramthar Galili Veng, Aizawl, lodged one FIR with the Officer-in-Charge of Aizawl P.S., to the effect that on 19.08.2019, one Sh. P. Thangbuaia, resident of Ramthar Galili Veng, Aizawl had sexually assaulted his son Sri “X” (name withheld), who is a 13 years old boy, by calling him to his house and touched his penis, since the time he was 5 years old, and he also made his son to touch his (appellant’s) penis and rub his penis against his son’s anus, and he used to give money to his son and warned him not to disclose anything and he did such things not less than ten times.

Upon the said FIR, the Officer-in-Charge of Aizawl P.S., registered a case, being Aizawl P.S. Case No.361/2019, under Section 10 of the POCSO Act and got the same investigated. During investigation, the I.O. had visited the place of occurrence, examined the witnesses and got the victim examined by Doctor and also got his statement, under Section 164 Cr.P.C., recorded in the Court. Then he had arrested the appellant and forwarded him to the Court and on completion of investigation, he laid charge sheet against the appellant, to stand the trial in Court, under Section 10 of the POCSO Act.

Thereafter, the appellant was produced before the First Track Special Court (Rape & POCSO Act). Then the learned Court below, after complying with the provision of Section 207 Cr.P.C. and after hearing learned Advocates of both sides, had framed charge against the appellant under Section 10 of the POCSO Act and on being read over and explained over, the appellant pleaded not guilty to the same. Thereafter, the learned Court below had examined as many as seven witnesses, including the Medical Officer and the Investigating Officer and thereafter, closing the prosecution evidence, the Court below had examined the appellant under Section 313 of the Cr. P.C. and also examined one witness adduced by the appellant in support of his defence. Thereafter, hearing arguments of both sides, the learned court below has convicted the appellant under Section 10 of the POCSO Act and sentenced him, as aforesaid.

4. Being highly aggrieved, the appellant preferred this appeal challenging his conviction and sentence and to set aside the same on the following grounds:-

(i) That, the learned Court below had erred in law and facts, in passing the judgment and order dated 05.07.2022;

(ii) That, the learned Court below had passed the sentence upon the appellant on the same day, when the conviction order was passed which is against the provision of Section 235(2) of the Cr.P.C. and the law laid down by the Hon’ble Supreme Court in the case of Allauddin Mian & Ors. Sharif Mian & Anr. vs. State of Bihar, reported in (1989) 3 SCC 5;

(iii) That, the learned Court below had arrived at the finding that the victim is a minor child at the relevant time, based on the deposition of PW.1, PW.3 and PW.4 but none of them has produced the original birth certificate of the victim, for comparison before the Court and concluded that the age of the victim, at the relevant point of time was below 12 year;

(iv) That, the learned Court below had failed to consider the