IMPORTANT POINT
The delay in lodging the FIR due to pandemic restrictions does not undermine the prosecution's case, and the evidence of child witnesses is credible despite minor discrepancies.

JUDGMENT :

SUSMITA PHUKAN KHAUND, J.

1. Heard learned Amicus Curiae Mr. Victor L. Ralte for the appellant, learned Public Prosecutor Ms. Linda L. Fambawl for the respondent State and Ms. Emily L. Chhangte, learned Amicus Curiae for the respondent No. 2.

2. An appeal has been preferred by Sh. Rosangpuia (hereinafter referred as the appellant or accused) from the jail challenging the judgment and order dated 18.02.2022 as well as the sentence dated 23.02.2022 passed by the learned Special Judge (POCSO), Lunglei Judicial District, Mizoram in connection with Crl. Tr. No. 353/2020, convicting the appellant under Sections 6 and 12 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act for short) and sentencing him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.5000/-(Rupees Five Thousand) with default stipulation and for offence under Section 12 of the POCSO Act and sentencing him to undergo rigorous imprisonment for one year and to pay a fine of Rs.1000/-(Rupees One Thousand) with default stipulation. The sentences are directed to run concurrently.

3. The genesis of the case was that on 10.03.2020 at about 6:00 PM, the victim ‘X’ aged about 10 years 9 months) was taken by the appellant to the ME School, Sertlangpui. Then, the appellant made her watch porn videos in his mobile phone and touched her breasts and inserted his hands inside her pants and poked his fingers into her private part. An FIR regarding this incident was lodged by ‘Y’, victim’s father, which was registered as Lunglei PS C/No. 35/2020 under Sections 4 and 12 of the POCSO Act and investigation commenced.

4. The Investigating Officer (IO for short) embarked upon the investigation. He forwarded the victim for recording her statement under Section 164 of the Code of Criminal Procedure, 1973 (CrPC for short) and also forwarded her for medical examination. He recorded the statements of the witnesses and obtained the medico-legal report. On completion of investigation, charge sheet was laid against the appellant under Sections 6 and 12 of the POCSO Act. At the commencement of trial, a formal charge under Section 6/12 of the POCSO Act was framed and read over and explained to the appellant. The appellant abjured his guilt and claimed innocence.

5. To substantiate its stance, prosecution adduced evidence of 8 (Eight) witnesses and defence cross examined the witnesses to refute the charges. The appellant also adduced evidence of two witnesses in defence. On the incriminating materials projected by the prosecution through the evidence of the prosecution witnesses, several questions were asked to the appellant.

6. The appellant has admitted that the victim is his niece, being his elder brother’s daughter. He has vehemently denied that he has committed penetrative sexual assault on the victim. He has admitted that the victim used to visit them as she is his niece. He has denied that he gave her 10 rupees to buy eatables but he admitted that he sent her to buy ‘kuva’. He has also stated under Section 313 of CrPC that he was intending to contest VC Election but he could not contest as he is being incarcerated in connection with this case.

7. Learned Amicus Curiae for the appellant laid stress in his argument that the incident occurred on 10.03.2020 whereas the FIR was lodged after a considerable period of more than one month i.e. on 18.04.2020. The reasons assigned to justify the delay cannot be considered due to the prolonged delay, which leaves sufficient scope for fabrication and embellishment. It is submitted that although it has surfaced through the evidence that due to the pandemic there was a delay in lodgment of the FIR, yet no cogent reasons were assigned to explain the delay in lodgment of the FIR in the FIR. It is further submitted that there are discrepancies in the statement of the victim under Section 164 of CrPC vis-a-vis her testimony in the Court. The victim has stated in her statement under Section 164 of CrPC that s