IMPORTANT POINT
Conviction under POCSO Act can be based solely on the credible testimony of the victim, with sensitivity to delays in filing FIR due to trauma.

JUDGMENT :

MARLI VANKUNG, J.

Heard Mr. Lalrokunga Pautu, learned Amicus Curiae for the appellant. Also heard Mrs. Mary L. Khiangte, learned Addl. Public Prosecutor for the State respondent and Mrs. Emily L. Chhangte, learned Legal Aid Counsel for respondent No. 2.

2 . This is an appeal against the Judgment & Order dated 03.09.2022 passed by the learned Special Judge, Special Court, POCSO Act, Aizawl Judicial District, Aizawl on 03.09.2022 in S.C. No. 115 of 2018 and Crl. Trial No. 1418 of 2018 u/s 6 of POCSO Act, 2012 wherein the appellant was convicted u/s 6 of the POCSO Act and sentenced to suffer R.I. for 10 years and pay a fine of Rs. 1000/- (One thousand) i/d for another period of 1 year.

3 . The brief facts of the case is that on 01.10.2018, an FIR was received from the informant/prosecutrix to the effect that her parents had divorced and her mother had re-married the present appellant. She started to live with them from December 2017. During the month of January – March, 2018, her step father had forcefully had sexual intercourse with her against her will many times in their residence at Thingsulthliah and in the jhum hut of a farm in the forest. Being aggrieved, she had filed the instant FIR so that legal action is taken against her step father. The FIR was duly registered as BKN-PS Case No. 156/2018 dated 16.07.2018 u/s 6 of the POCSO Act.

4 . During the investigation, the prosecutrix was sent for medical examination along with the accused. The statement of the prosecutrix was recorded u/s 164 CrPC and the case I.O. also examined the other witnesses. On receiving the medical examination report, the case I.O. found prima facie case against the accused u/s 6 of the POCSO Act and accordingly filed the charge-sheet.

5 . The learned Trial Court framed charged u/s 6 of the POCSO Act on 17.09.2018 which the accused pleaded guilty and claimed trial. During trial, as many as 8 prosecution witnesses were examined. The accused on examination u/s 313 CRPC denied all the incriminating evidence made out against him. Thereafter, he deposed before the Court as defense witness. The learned Trial Court after hearing both the parties found the accused/appellant guilty and convicted him u/s 6 of the POCSO Act and accordingly sentenced him to undergo 10 years R.I. and pay a fine of Rs. 1000/- i/d for 1 year. Aggrieved, the accused/appellant filed the Jail Appeal.

Submissions made by the learned counsels

6 . Mr. Lalrokunga Pautu, learned Amicus Curiae submitted that the judgment & order is liable to be set aside on the grounds that there was a delay in filing the FIR, which has not been properly explained. He submits that though the incident was said to be during the month of January – March, 2018, however, the FIR was filed only on 16.07.2018, and there is no explanation to the delay of 5 months. In support of his submission, he has cited the judgment of the Apex Court in Satpal Singh vs. State of Haryana , (2010)8 SCC 714 (para 15) and Prakash Chand vs. State of Himachal Pradesh reported in (2019) 5 SCC 628 (para 27).

7 . The learned counsel further submitted that the prosecutrix is not a sterling witness and her evidence cannot be relied upon. He has led this Court to the deposition to the prosecutrix before the Court as PW No. 1 and also to the statements made by her u/s 164 CrPC. The learned counsel pointed out that though the prosecutrix had mentioned that the appellant had sexually assaulted her 4 times in her statement u/s 164 CrPC, in her deposition she had mentioned that the accused/appellant had sexually assaulted her 5 times. He further pointed out that in her deposition before the Court, she had mentioned that she first informed about the incident of sexual assault to grand-daughter of Mr. Hunga, while in her statement recorded u/s 164 CrPC, she had mentioned that she informed about the incident to uncle Faka. There are also discrepancies regarding the place of the incident where in her FIR she had mentioned t