JUDGMENT :

Michael Zothankhuma, J.

Heard Mrs. H. Lalmalsawmi, learned Amicus Curiae for the appellant. Also heard Mrs. Vanneihsiami, learned Addl. Public Prosecutor for the State and Mrs. Emily L. Chhangte, learned Legal Aid Counsel for the respondent No. 2.

2. This is an appeal against the impugned Judgment & Order passed by the Presiding Officer/Judge, Fast Track Special Court, Champhai in FTSC (CPI) POCSO 46/2022, arising out of Criminal Trial No. 178/2022, by which the appellant has been convicted under Section 6 of the POCSO Act and sentenced to undergo Rigorous Imprisonment for 20 (twenty) years with a fine of Rs.5,000/-, i/d Simple Imprisonment for 1 (one) month.

3. The learned Amicus Curiae submits that the case of the victim (10 years old) that she had been raped by the appellant, who was a full grown man appears to be doubtful, in view of the fact that the victim had stated that she did not experience pain during or after the incident of rape. Further, the victim stated in her cross-examination that there was no bleeding in her private parts after the incident of rape had occurred.

4. The learned Amicus Curiae further submits that the evidence of the male Doctor, who is PW-4, is to the effect that the hymen of the victim was ruptured/not intact. She submits that the examination of the victim girl should have been done by a lady Doctor, in terms of Section 27(2) of the POCSO Act, 2012 and not by a male Doctor. As such, there was violation of Section 27(2) of the POCSO Act, 2012 due to examination of the victim by a male Doctor.

5. The learned Amicus Curiae also submits that there is inconsistency in the statement made by the victim under Section 164 Cr.PC and in her testimony before the learned Trial Court. In her testimony before the learned Trial Court, the victim had stated that when she resisted the attempt by the appellant to rape her, the appellant threatened her by saying that ‘If you shout, I will pull your hair’. However, no such statement had been made by the victim in her 164 Cr.PC statement. Thus, as the victim’s statement under Section 164 Cr.PC did not fully corroborate the testimony of the victim during trial, conviction could not have been made solely on the basis of the testimony of the victim, who was not a sterling witness. In this respect, she has relied upon the Judgment of the Supreme Court in the case of Rai Sandeep Alias Deepu Vs. State (NCT of Delhi) reported in (2012) 8 SCC 21, wherein it has been held that when a witness evidence does not show that she is a sterling witness, the evidence of the victim would have to be corroborated by other evidence.

6. The learned Amicus Curiae submits that there was no injury on the private parts of the victim, even though she had alleged that she had been raped by the appellant who was the full grown man. She submits that it was unbelievable that a child of ten years would not have injury in her private parts, if she had been raped by a full grown man. As the evidence did not prove that the victim had been raped by the appellant, the impugned Judgment & Order should be set aside.

7. Mrs. Vanneihsiami, learned Addl. Public Prosecutor, on the other hand submits that there is no inconsistency in the evidence of the witness, vis-à-vis her statement made under Section 164 Cr.PC. In fact, the evidence of the victim to the effect that she and the appellant had been caught by the wife of the appellant in the ground floor of the appellant’s house has been corroborated by the evidence of the wife of the appellant, who is Defence Witness-3 (DW-3). The learned Addl. Public Prosecutor submits that the statement made by the victim under Section 164 Cr.PC also corroborates the testimony of the victim and just because the victim did not state the threat given to her by the appellant in her 164 Cr.PC statement did not mean that the evidence of the victim was not reliable.

8. The learned Addl. Public Prosecutor further submits that there is no enmity between the family of the victim