Consent cannot be validly given by a minor; conviction under proper provision affirmed following established legal principles.

1. Heard Ms. H. Lalmalsawmi, Amicus Curiae and Mr. A.K. Rokhum, Public Prosecutor.

2. The present appeal had been filed against the Judgment and Order dated 06.05.2014 passed by the Session Judge, Aizawl in Criminal Trial No. 2358/2012, wherein the appellant has been convicted under S.376(2)(f) IPC and sentenced to undergo R.I for a period of 10 years with a fine of Rs.2000/-, i.d S.I for one month.

3. The prosecution story of the case is that on 24.09.2012, one Vanlalhruaia, aged about 35 years of age, resident of Kanhmun Vengthar of Mamit District lodged a written complaint with the kanhmun PS, to the effect that one James Isaka S/o Lalrinthanga (L) of Kanhmun Vengthar had raped his daughter, Rani, 12 years of age, three times during July to September, 2012. Accordingly, Kanhmun PS Case No. 16/2012 dated 24.09.2012 under S.376 (2)(f) IPC was registered and investigation carried out. A prima facie case was found and charge under S.376(2)(f) IPC was registered against the accused James Isaka, S/o Lalrinthanga (L) of Kanhmun Vengthar and charge sheet filed. The appellant had also given his confessional statement under S.164 Cr.P.C before the Judicial Magistrate on 05.11.2012, wherein the appellant admitted to the fact that he had sexual intercourse with the victim, but stated that it was with her consent.

4. The charge under S.376(2)(f) IPC was framed against the appellant on 14.02.2013. Thereafter the Trial Court recorded the evidence of 7 prosecution witnesses. Subsequently, the appellant was examined under S.313 Cr.P.C, wherein he again admitted to having sexual intercourse with the victim with her consent. He denied that he had sexual intercourse with the appellant without her consent. The Trial Court after considering the entire matter convicted and sentenced the accused, as referred to above, vide Judgment and Order dated 06.05.2014.

5. Ms. H. Lalmalsawmi, learned Amicus Curiae submits that the Trial Court has not made any definite finding with regard to the age of the victim at the time the alleged incident of rape had taken place. She submits that the FIR also having clearly stated that the victim was 12 years, the appellant could not have been convicted under S.376(2)(f) IPC.

The learned Amicus Curiae also submits that the fact of the appellant having had sexual intercourse with the victim girl is not denied. However, the confessional statement and the statement given by the accused under S.313 Cr.P.C is to the effect that the act of sexual intercourse was with the consent of the victim. She thus submits that there being no definite proof that the victim had been forced to have sex, the impugned Judgment and Order dated 06.05.2014 should be set aside and the appellant should be acquitted of the charge of rape.

6. Mr. A.K. Rokhum, Public Prosecutor submits that the FIR submitted and the evidence of the prosecutrix in her cross examination shows that the prosecutrix was 12 years old when the appellant had sexual intercourse with the prosecutrix. The Public Prosecutor thus fairly submits that the appellant could not have been convicted and sentenced under S.376(2)(f) IPC. He however submits that the evidence adduced by the victim girl and the other witnesses would clearly go to show that the sexual intercourse was without the consent of the victim girl. Accordingly, the appellant should have been convicted under S.376(1) IPC, as it stood prior to the amendment of S.376.

7. I have heard the learned counsels for the parties.

8. On perusal of the confessional statement of the accused appellant, which has not been retracted by the appellant,