The court affirmed the conviction under the POCSO Act while ruling that the appellant cannot be punished under both the POCSO Act and IPC for the same act, modifying the sentence accordingly.

JUDGMENT :

Michael Zothankhuma, J

Heard Ms. Lalngaihsaki Fanai, learned Amicus Curiae for the appellant. Also heard Ms. Vanneihsiami, learned Addl. Public Prosecutor for the respondent No. 1 and Mr. C. Tlanthianghlima, learned Legal Aid Counsel for the respondent No.2.

2. This is an appeal from Jail filed by the convict/appellant against the Judgment & Order dated 10.07.2023 passed by the Court of the Additional District & Sessions Judge -cum- Judge, Fast Track Court, Kolasib in S.R. No. 31/2022 (Crl.Trl.No. 156/2022), convicting the appellant under Section 6 of the POCSO Act, 2012 and also under Sections 363 and 377 IPC. The appellant has been sentenced to undergo Rigorous Imprisonment for 20 (twenty) years and to pay a fine of Rs. 50,000/-, i/d of fine to undergo Rigorous Imprisonment for 1 (one) year under Section 6 of the POCSO Act, 2012. The appellant has also been sentenced to undergo Simple Imprisonment for a period of 5 (five) years and to pay a fine of Rs. 5,000/-, i/d Simple Imprisonment for 5 (five) months under Section 363 IPC. The appellant has also been sentenced to undergo Simple Imprisonment for 5 (five) years and to pay a fine of Rs. 5,000/-, i/d Simple Imprisonment for 5 (five) months under Section 377 IPC.

3. The prosecution case in brief is that an FIR was lodged by the mother of the victim boy aged 11 years on 28.05.2022 before the Officer-in-Charge, Kolasib Police Station. The informant, who is the Prosecution Witness-1 (PW-1) stated in her FIR that the victim boy aged 11 years was threatened by a certain person between 3:00 a.m. to 6:47 a.m. on 28.05.2022 and took him from Diakkawn Thomas Tyre Works to the outskirts of Salem Veng. From there the victim was taken to a certain jhum hut located at Bakpuk road beyond Project Veng (locality) and then to Lalhlira’s jhum hut, where he forcefully had anal sex with the victim. The appellant even forced the victim to touch his private parts. The victim was also threatened by the appellant with a knife and was told that he would be stabbed if he did not follow the commands of the appellant. That the victim managed to escape when the appellant fell asleep.

4. Pursuant to the FIR, Kolasib P.S Case No. 51/2022 was registered on 28.05.2022 under Section 6 of the POCSO Act, 2012 read with Sections 363 and 377 IPC.

5. The appellant was arrested on 28.05.2022 and both the victim and the appellant were taken for medical examination on the same date. The statement of the victim was also recorded under Section 164 CrPC on 01.06.2022 and on finding a prima facie case under Section 6 of the POCSO Act, 2012 read with Sections 363 and 377 IPC against the appellant, charge-sheet was filed.

6. The learned Trial Court thereafter famed charge against the appellant under Section 6 of the POCSO Act, 2012 read with Sections 363 and 377 IPC, to which the appellant pleaded not guilty and claimed to be tried.

7. The learned Trial Court thereafter examined 11 Prosecution Witnesses and after examining the appellant under Section 313 CrPC, the learned Trial Court found the appellant guilty of having committed the offence under Section 6 of the POCSO Act, 2012 read with Sections 363 and 377 IPC. The appellant was thereafter convicted on the above 3 (three) charged Sections of law and sentenced accordingly.

8. The learned Amicus Curiae submits that there are inconsistencies in the evidence given by the victim in his examination-in-chief and cross-examination. She also submits that the medical report and the evidence of the Doctor do not prove that the appellant had raped the victim or had caused any aggravated penetrative sexual assault. She accordingly submits that the impugned Judgment & Order should be set aside.

9. On the other hand, the learned Addl. Public Prosecutor and Mr. C. Tlanthianghlima, learned Legal Aid Counsel for the respondent No. 2 submit that the evidence of the Prosecution Witnesses clearly proved the guilt of the appellant in having raped the young boy below 12 years and having unn