JUDGMENT :

Heard Ms. Rosalynn L. Hmar, learned counsel for the appellant alongwith Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor for respondent No.1 and Ms. Ruthi Vanlalhruaii, learned counsel for respondent No.2.

2. This is an appeal under Section 374 Cr.PC against the impugned Judgment & Order dated 07.11.2019 passed by the Special Judge, POCSO Act, Lunglei in connection with Crl.Tr. No. 459/2019 arising out of Lawntlai PS Case No.47/2017 under Section 4 of POCSO Act, 2012.

3. The brief facts of the prosecution story is that a written FIR was filed at the Police Station on 23.8.2017 by one X, D/o Vanlalsanga, of Lungpuk, stating that at about 9:00 Pm on 19.8.2017, when she went outside to use the toilet, the accused, S.T. Lalngamzova, forcibly took her to his house where he kept her the whole night and raped her twice. The next morning she escaped from a window. The delay in filing the report, the informant stated in the FIR, was because she had waited for word from her father on how to proceed in the mater. Lawngtlai Police Station Case No. 47/2017 dated 23.8.2017 under Section 4 of the Protection of Children from Sexual Offences Act, 2012, was accordingly registered and investigated into. The alleged victim and a number of witnesses were examined. X was forwarded to the District Hospital at Lawngtlai for a medical examination which showed that her hymen was ruptured. A pretrial statement she tendered was recorded by a judicial Magistrate. X’s birth certificate, which was seized, showed that she was born on 5.5.2002 and was a child at the time of the alleged incident on 19.8.2017. It was concluded from the investigation that a prima facie case under Section 4 of the Protection of Children from Sexual Offences Act, 2012 was well-established against the accused and he was sent up for trial. The case was received by this Court on 14.12.2017 on commitment by the Chief Judicial Magistrate, Lawngtlai.

4. A charge was framed in writing against the accused on 5.2.2018 under Section 4 of the Protection of Children from Sexual Offences Act, 2012. He denied the charge and claimed to be tried. All the eight witnesses listed for the prosecution deposed and the accused was then examined on 24.07.2019 under Section 313 of the Code of Criminal Procedure. In explanation to the evidence adduced against him, he said that he was unsure of X’s date of birth. He agreed that he had sex her but said that she was romantically involved with him and that he was in love with her. He declined to adduce evidence.

5. The learned trial court after hearing both the parties, convicted he appellant under Section 4 of the Protection of Children from Sexual Offences Act, 2012, for committing penetrative sexual assault as charged and accordingly sentenced to undergo Simple Imprisonment for 7 (seven) years and to pay a fine of Rs. 1,000/- (Rupees one thousand). In default of payment of the fine, he shall undergo further imprisonment of 1 (one) week. The period of detention already undergone by the accused in connection with this case shall be set off against the sentences imposed. Aggrieved, the appellant has filed the instant appeal.

6. Ms. Rosalynn L. Hmar, learned counsel for the appellant submits that the Judgment & Order dated 07.11.2019 passed by the Judge, POCSO Act, Lunglei Judicial District in Crl. Trial No.495/2017 is liable to be set aside and quashed for following the reasons;

i. that there was a delay of 4 days in lodging the FIR as a victim girl was waiting for word from her father which reveals that there were awaiting for a marriage proposal which is not a unusual practice as per the Mara customs. The incident is said to occur on 19.08.2017 and the FIR was submitted on 23.08.2017.

ii. That the age of the alleged victim is not proved since the birth certificate seized is not reliable. The birth certificate exhibited as M-Ext-1 shows that the date of registration of the birth is 10.09.2015 while the date of birth is shown as 05.05.2002. The medica