Page No.# 1/13 GAHC030006982024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./43/2024 H. Lalremruata Tuikual Veng, Dapchhuah, Mamit District VERSUS The State of Mizoram and Anr. Aizawl2:Lalroman Advocate for the Petitioner : Mr. Jonathan Lalrintluanga Advocate for the Respondent : P.P./Addl.PP, Mizoram BEFORE HONOURABLE MR. JUSTICE RAJESH MAZUMDAR JUDGEMENT & ORDER (ORAL) Date : 23-09-2025 Heard Mr. Jonathan Lalrintluanga, learned counsel for the petitioner. Also heard Ms. Mary L. Khiangte, learned P.P. for the State and Mr. Lalrokunga Pautu, learned Legal Aid counsel for the victim. 2. The appellant in this present appeal has assailed his conviction under section 376(1) of the IPC 1860 (as amended up-to-date) sentencing him to undergo imprisonment for a term of 10 years. The prosecutrix (PW-1) had lodged an FIR on 22.04.2020 before the Officer-in-Charge, Mamit Police Station alleging that during Page No.# 2/13 May, 2019, the accused/appellant herein tempted her with love saying that he will divorce his wife and marry her. It was further alleged that the informant and the accused had became lovers and had indulged in sexual intercourse. The informant became pregnant and on 26.02.2020 she gave birth to a baby boy at District Hospital Mamit. The informant alleged that the accused had deceived her and he did not perform any of his duties as a father towards his son. Therefore, a request was made before the Police authority to take legal action against the person who did this to the informant. 3. The case was transferred to the West Phaileng Police Station and re-registered on 12.08.2020 as West Phaileng Police Station Case No. 16/2020 under section 376(3) IPC r/w section 6 of the POCSO Act. During the investigation, it was ascertained that the accused was the biological father of the child born to the prosecutrix. The baptismal certificate of the informant/victim was seized as proof of proof, whereupon it was also ascertained that the informant was a minor. Since the victim/informant was found to have completed 16 years of age at the time of commission of alleged offence upon her by the accused in the month of May 2019, there was no relevance of Section 376(3) of the IPC in the matter. However, since the baptismal certificate reveals that the informant was a minor, the provisions of section 6 of the POCSO Act of 2012 were attracted. The Investigation Officer submitted the Charge-sheet No. 24/2020 dated 04.11.2020. The Charge-sheet was received on 19.11.2020 in the Court of learned Special Judge, POCSO, Aizawl Judicial District, Aizawl. On 15.03.2020, charge under section 6 of the POCSO Act was framed against the accused and the same was read over to the accused and explained in a language known to him to which the accused/appellant herein pleaded not guilty and claimed for trial in accordance with of law. 4. PW-1 who was informant was examined by the learned Special Court on 17.05.2022 where she divulged that she knew the accused who was her step father’s elder brother’s son and who lived in the same village. PW-1 stated that the accused Page No.# 3/13 often came to her and used to praise her saying that he is fond of her. Later they were in relationship and she also listen to whatever he said and she often went out with him. She stated that the accused at that time was already married but he projected that he would marry PW-1. She disclosed that they had sexual intercourse on about two/three occasions and she became pregnant thereafter and delivered a baby boy at District Hospital Mamit on 26.02.2020. She stated that she had not disclosed her relationship with the accused to anyone during their relationship but when she was pregnant, she disclosed it. After some time, the accused and his family gave her assurance that they would help them in looking after the baby and they also requested not to disclose the matter and also not lodge complaint before the Police. She further stated that after the delivery of the baby, the accused refused to give his name to the baby and refused to accept and help her in looking after the baby. She was shattered and wanted her baby to have his father’s name and therefore she along with her parent lodged a complaint on 22.04.2020 at Mamit Police Station. In the cross-examination, the informant revealed that she knew the accused from her childhood and she did not know how many times they had sexual intercourse. She denied her date of birth as mentioned in her deposition. She further stated that the main reason for submitting the FIR was because the accused did not care at all for the baby as a father and she was also expecting maintenance from him. In reply to her suggestion, she admitted that she was born on 31.05.2000 and also admitted that “Sawn Man” had already been given to them by the accused. 4. The step-father of the informant deposed as PW-2. He stated that he did not know the exact age of the victim. He further stated that they had asked the victim regarding the person who made her pregnant and at that time she told them that it was the accused who made her pregnant. During the cross-examination, he said that he did not know that the age of the victim and he also admitted that he did not know whether date of birth of the victim mentioned in the baptismal certificate is correct or not. Page No.# 4/13 5. The mother of the victim deposed as PW-3 in the case. She deposed that she was illiterate and that when she got married the PW-2, the victim came with her along with her three siblings. She stated that she did not know that exact age of the victim. She further stated that when the victim got pregnant, and her belly started showing, they asked about the father of the child and the victim told them that it was the accused. She stated that the victim delivered a baby boy in the year 2020 and both of the mother and the child live with them and they were handed over Sawn man on the birth of the baby. She stated that initially they did not complain to the Police but when the victim was subjected to insult by the wife of the accused and when the accused and his wife receded from their promise to support the victim financially at the time of delivery of the baby, they decided to lodge the complaint. She stated that she had no grudge against the accused personally. During the cross-examination, the PW-3 stated that at the time of pregnancy of her daughter, the accused and her daughter made that an agreement with accused at Mamit Police Station that the accused shall give all the expenditure of hospital to give birth and also her pregnancy needs. She stated that the agreement was not complied by the accused. She admitted as a fact that she was not certain about the date and month of birth of the victim but she was sure that the victim was born in the year 2000. She denied the knowledge of romantic love affairs between her daughter and the accused till she was told by her daughter when her pregnancy was revealed. 6. PW-4 was Police personnel who had prepared the seizure list of the baptismal certificate of the victim produced by the parents. PW-5 was a seizure witnesses. PW-6, was another witness to the seizure of the baptismal certificate of the victim. PW-7 was also a seizure witness. PW-10, who was the first I.O, deposed that during the investigation, it was found that the place of occurrence falls under the jurisdiction of West Phaileng Police Station and therefore, she had prayed for transfer of the case to West Phaileng Police Station and the same was registered at West Phaileng Police Station vide P.S Case No. Page No.# 5/13 16/20, dated 12.08.2020 u/s 376(3) IPC r/w 6 of POCSO Act. She deposed facts regarding her visit to the place of occurrence and the examination of the complainant. She also deposed regarding the apprehension, interrogation and formal arrest of the accused following all formalities required by law and that she forwarded the accused and the victim for their medical examination. She deposed about the seizure in the presence of the two reliable persons. She further deposed that the information of the case was given to the Chairperson, Child Welfare Committee Mamit and that she forwarded the case to the Special Judge, POCSO without delay. She further deposed that statement under Section 164 of the Cr. PC 1973 was taken up by the Judicial Magistrate of the First Class, Mamit during the investigation. During the cross- examination, she admitted that no document was seized from the Mamit Police Station but the same was seized from the victim while the investigation was being conducted. She had replied positively to a suggestion that the complaint lodged by the victim was not done out of the complaint of sexual intercourse but for monetary negligence on the part of the accused toward his son. PW-11 deposed that he investigated of the case at the West Phaileng Police Station and that during the investigation he had gone through the statement of the victim, which was already recorded by the previous Investigating Officer during her investigation. He deposed that blood sample matching for DNA profiling of the accused and the victim was done to ascertain the parentage of the child of the accused and he deposed that as per the report of the Forensic Science Laboratory examination, the accused was the biological father and the informant was the biological mother. He deposed that as per the baptismal certificate, the informant/victim was born on 30.05.2002. He deposed that after thorough investigation, he found that a prima facie case was well established against the accused under section 6 of the POCSO Act and that he submitted the Charge-sheet accordingly. During the cross-examination, he stated that it is a fact that there was no other valid document except the baptismal certificate of the victim seized at the time Page No.# 6/13 of investigation to show the exact age of the victim. The evidence of the prosecution having been closed, the accused was examined under section 313 of the Cr. PC, 1973 on 19.06.2023. During the proceeding under section 313 Cr. PC, the accused denied that he continued to sleep with the victim. He admitted that he had told the Police that he had sex with the victim for about 10-15 times. He denied having told the victim that he would divorce his wife in order to live with her. The accused admitted that he had told the victim when she was pregnant not to have abortion. He admitted the baby as his child. The argument of the prosecution and the defense were heard on 13.07.2023, where the learned Special Public Prosecutor submitted oral argument which was heard and the learned counsel of the accused submitted a comprehensive written argument which was gone through. Based on the understanding of the evidence led and the arguments made, the learned Presiding Officer, Fast Track Special Court (Rape & POCSO Act), Aizawl Judicial District, Mizoram delivered his judgment & order on 27.09.2023 wherein he held that the appellant herein committed the offence of rape under section 375 of the IPC 1860. The learned Presiding Officer, Fast Track Special Court, POSCO Act came to the finding that the accused had committed aggravated penetrative sexual assault against the victim. The basis for such finding is found at paragraph-18 of the judgment & order under consideration where the learned Presiding Officer of the Court had rendered as follows; “In view of his replies at the time he was examined as per the provision of section 313 of the Cr.P.C, 1973 on 19th June, 2023, the accused also had agreed that he committed rape against the victim.” The learned Presiding Officer, Fast Track Special Court, POCSO Act also came to the conclusion that since the victim had deposed that she was born on 31.05.2000, she attained the age of 19 years till May 2019 and therefore, he came to an opinion that the victim did not fall within the definition of ‘child’ as enunciated in clause-(d) of Page No.# 7/13 the POCSO Act, 2012. The learned Presiding Officer, Fast Track Special Court, POCSO Act also took note of section 42 of the POCSO Act, 2012 which mentioned that where an act or omission constituted an offence punishable under the POCSO Act and also under section 375, 376 amongst others, of the IPC, then notwithstanding anything contained in any law for time being in force, the offender found guilty of such offence shall be liable to punishment under either the POCSO Act or the IPC, whichever provides for a punishment which is greater in degree. Since the accused as offender in the instant case, cannot be punished under the POCSO Act, he decided to apply the provision of sub section(1) of section 376 of the IPC 1860 as amended from time to time for the punishment of the accused offender in the present case. He converted charge framed against the accused from under section 6 of the POCSO Act, 2012 into a charge under sub-section(1) of section 376(1) of the IPC 1860. By referring to the judgment of the Gujarat High Court rendered in the case of State of Gujarat -vs- Gandabhai Govindbhai, reported in 2000 Cr. LJ 92, the Presiding Officer, FTC did not give any opportunity of hearing on the question of sentence to the accused- convict and sentenced him to undergo rigorous imprisonment for a term of 10 years, setting off the period of judicial custody as an under trial prisoner against the term imposed by the judgment & order. The appellant has been in custody since 27.09.2023 serving the sentence imposed upon him. 7. Mr. Jonathan Lalrintluang, learned counsel for the appellant has assailed the impugned judgment & order primarily on the ground that the Trial Court had committed a serious and grave error, when it failed to notice that none of the evidence led by any of the prosecution witness sufficed to demonstrate the commission of offence of rape as alleged. He has drawn attention of the Court to the statement of the informant/victim to stress that it was in evidence that the informant and the appellant herein were in a love relationship from around May 2019 and the informant/victim had also admitted that she used to listen to whatever the appellant said and often go out with him. He submitted that it would be evident from the Page No.# 8/13 statement made by the victim that she knew that the appellant herein, was already a married man. He further submitted that it was not because of any false promise of marriage or due to the promise made to her that she had entered into physical relationship with the accused. He submitted that a bare reading of the FIR and the statement of the alleged victim would demonstrate that the grievance against the appellant arose only when the accused did not take up the expenditures during the delivery of the child by the alleged victim and when he did not take care of the child born out of their relationship. He submitted that nothing in the evidence of the alleged victim culled out the commission of rape against the victim by the appellant. He submitted that during the cross-examination, the alleged victim had admitted that she did not know how many times they had sexual intercourse. She had admitted that she lodged the FIR because the appellant did not care for the baby boy as a father and also she was expecting maintenance from him. He further submitted that the very acceptance of “Sawn man” by the alleged victim would nullify the allegation of rape against the appellant. He further referred to the deposition of mother of the alleged victim to stress that the FIR was lodged when her daughter fell insulted and emotionally hurt by the wife of the appellant using filthy words and because the appellant and his wife receded from their promise to support the alleged victim financially at the time of delivery of the child and had instead accused the victim of being harboring immoral character. He referred to the cross-examination of the PW-3 to stress that the alleged victim had in fact informed the PW-3 of the romantic love affairs had been existing between the alleged victim and the accused. By referring to the examination of the appellant under the provision of section 313 of the Cr. PC, the learned counsel for the appellant has submitted that nothing in the statement reveals that he had in any manner committed rape against the victim and therefore, he submitted that the findings of the learned Fast Track Special Court, POCSO Act that the accused had agreed to the act of rape against the victim, is without any material basis and is a perverse conclusion. He submits that said Page No.# 9/13 conclusion needs interference of this Court in the present appeal and the appellant would be entitled to clean acquittal. The learned counsel for the appellant has placed reliance on the judgment & order passed in the case of Jaspal Singh Kaural -vs- State of NTC of Delhi & Another, reported in (2025) 5 SCC 756 to submit that when a sexual relationship is entered into by consenting adults, a mere reference to a promise to marry would not be sufficient to draw an inference of commission of rape. The learned counsel submitted that when physical relationship between two consenting adults is consensual from the very beginning, it cannot be said to be against the will or without the consent of the prosecturix. Even if the case of the prosecutrix is accepted, there is no evidence on record to support that the relationship was against the will or without the consent of the prosecutrix, and therefore, offence of rape cannot be said to have been committed. He submitted that the conduct of the alleged victim in not letting anyone know about the admitted love affairs between her and the accused and later on, she having admittedly consented to a promise that the appellant would extent financial help and that he would take care of the child, itself shows that the alleged victim was not aggrieved by the physical relationship between them but she was aggrieved because the appellant did not take care during her pregnancy and the delivery of the child. He further submitted that the impugned judgment & order dated 27.09.2023 passed by the learned Presiding Officer, Fast Track Special Court, (Rape and Protection of Children from Sexual Offence) Act, Aizawl, Mizoram in SC No. 83/20 Crl. TR No. 1286/2020 deserves interference of this Court and the appellant deserved to be acquitted and set at liberty forthwith. 8. Ms. Mary L. Khiangte, learned P.P. for the State, on the other hand, refuted the contention raised on behalf of the appellant. The learned P.P has submitted that PW-1 had, in very clear terms, stated that the appellant had stated before the victim that he will not live with his wife and had promised to marry her. The learned P.P has submitted that it is obvious that the victim allowed accused to have physical Page No.# 10/13 intercourse with her only because of the promise of marriage made by the appellant. She submitted that during the cross-examination, the PW-1, i.e. the alleged victim, had specifically stated that there was no love affairs between the appellant and herself. The learned P.P thereafter submitted that in the proceeding under section 313 of the Cr.P.C, the appellant had admitted to have sex with the victim for about 10-15 times and also admitted that he had asked the victim not to have abortion of the child. She submitted that the conduct of the appellant was proof enough to show that from the very initial stage that he had no intention to marry the victim and he had made such false promise only to induce her to have physical relationship with him. 9. Mr. Lalrokunga Pautu, learned Legal Aid counsel for the victim has adopted the argument made by the learned P.P. and he submits that the impugned judgment & order does not deserve any interference. 10. The submissions made by the learned counsel for the appellant and the learned P.P as well as the learned Legal Aid counsel have been considered. 11. A perusal of the statement recorded under the provision of 313 of the Cr.P.C reveals that there is no admission or agreement on the part of the appellant that he had committed rape against the victim. His answers only reveal that he did not denied sleeping with the victim buthe had denied that he told the victim that he will divorce his wife and marry her in order to have sex with her. He denied that he threatened the victim while he first slept with her. He admitted that he asked the victim not to abort the child. He also admitted that the child was his son. None of the aforesaid admission can be said to be an admission that the appellant had agreed that he had committed rape against the victim. There is not an iota of evidence to lead to the conclusion that an offence under section 375, 376(1) is made out. It is pertinent to analyze that section 375 of the IPC, 1860 defines that a man is said to commit rape if a sexual offence is committed firstly, against her will, secondly, without consent, thirdly, passing non-resistance, fourthly consent obtained by fraud, fifthly, sexual intercourse with insane or drunken person, sixthly, sexual intercourse with a minor and seventhly, Page No.# 11/13 when the woman is unable to communicate consent. The learned Presiding Officer, Fast Track Special Court, POCSO Act, in his judgment has not disclosed as to in what manner the appellant could have said to commit rape and there is no discussion under which category of the circumstances enunciated under section 375 of the IPC would the act of the appellant fall. From the judgment, it appears that the only reason for convicting the appellant was that he had caused penetration into the alleged victim and it was observed that during his examination as per the provisions of section 313 of the Cr.P.C, the accused had agreed that he had committed rape against the victim. This Court cannot bring itself to agree to the conclusion arrived at by the learned Presiding Officer, Fast Track Special Court, POCSO Act, to hold that the appellant is guilty of rape. We also cannot agree with the conclusion of the learned Presiding Officer, Fast Track Special Court, POCSO Act that as the accused offender cannot be punished under the POCSO Act, by operation of the provision of section 42 of POCSO Act, he would liable to be punished under the provision of sub-section-(3) of Section 375 of the IPC 1860. We thus, find the reasoning and conclusion arrived at by the learned Presiding Officer, Fast Track Special Court, POCSO Act to be unreasonable and to be insufficient to hold that the allegation of rape against the accused stood proved beyond all reasonable doubt. To address the argument raised by the learned P.P. that the appellant was guilty of having made false promise to the victim that he would divorce his wife and marry her, which the learned PP has argued to be enough to hold that the appellant guilty of offence of rape, we have applied mind to the contents of the FIR, the evidence lead by the PW-1 as the alleged victim and the evidence lead by PW-3 who is the mother of the alleged victim. We find that the victim was 19 years of age when she got involved in love affairs with the appellant, knowingly fully well that he was a married man. We do not find any evidence to show that the victim had participated in the physical relationship on the trust and belief that the appellant would divorce his first wife and marry her. From the evidence, it is disclosed that the PW-1 had suffered Page No.# 12/13 heart burn when the appellant did not take care of her during pregnancy and also refused to take care of the child born out of their relationship. It has been held in the case of Maheshwar Tigga -vs- State of Jharkhand, reported in (2020) 10 SCC 108 that if the consent of the prosecutrix was a conscious and deliberate choice, as distinct from an involuntary action or denial and such opportunity was available to her and yet she allowed the appellant to have indulged in the act of love because of her deep-seated love for the appellant, the appellant could not be held guilty of rape. The Apex Court in the aforesaid case referred to the observation made in Uday -vs- State of Karnataka, reported in (2003) 4 SCC 46 wherein it was observed that it usually happens when the two persons are madly in love, that they promise to each other several times that come what may, they will get married. The Apex Court in that case has held that the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. In the present case, the victim has clearly stated that she and the appellant were in the relationship and she listened to whatever he said and she often go out with him. We find force on the reliance of the learned counsel for the appellant on the judgment rendered by the Apex Court in the case of Jaispal Singh (supra) that no malafide intent can be accrued to the male partner when it is the case of the prosecutrix that she was in a relationship with the appellant and we also find force in his submission that the act of the prosecutrix in hiding their relationship from her parents to be an indication that she was not adverse to the relationship. The PW-10 in her cross-examination stated that it was a fact that the FIR has not mentioned that the sexual intercourse was by compulsion but it was about monetary negligence on the part of the appellant toward her pregnancy and her new born child. From all of the above, this Court does not find that any of the ingredients of the offence of rape is made out against the appellant. There is no allegation or evidence to convince the Court that the promise of marriage allegedly made by the appellant Page No.# 13/13 was made with no intention to keep the promise. The prosecutrix was of 19 years of age who knew the appellant for a very long time since he was the son of the brother of her step-father and also knew that he was a married man when the love affairs started. In conclusion, this Court finds the conviction of the appellant to be unsustainable in law and the conviction is accordingly set aside. The appellant is acquitted. The appellant/accused is directed to set at liberty forthwith unless he is wanted in any other case. The appeal stands allowed. Return LCR along with a copy of this order to keep in the record. JUDGE Comparing Assistant