Page No.# 1/13 GAHC030002802025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (AIZAWL BENCH) Criminal Appeal (J) No.22 of 2025 Shri B. Lalramliana, Son of Lalringaia, Resident of Tlangkhang Veng, Bawngva. …… Appellant -Versus- 1. State of Mizoram, Aizawl. 2. Smt. R. Lalzidingi, Mamit. …… Respondents – BEFORE – HON’BLE THE CHIEF JUSTICE MR. ASHUTOSH KUMAR HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA For the Appellant(s) : Mrs. H. Lalmalsawmi, Amicus. For the Respondent(s) : Ms. Mary L. Khiangte, Additional Public Prosecutor, Mizoram for respondent No.1. : Mr. C. Tlanthianghlima, Legal Aid Counsel for respondent No.2. Date of hearing : 11.06.2026. Date of Judgment : 11.06.2026. Page No.# 2/13 J UDGMENT & O RDER (O RAL ) (Ashutosh Kumar, CJ) We have heard Mrs. H. Lalmalsawmi, learned Amicus for the appellant; Ms. Mary L. Khiangte, learned Additional Public Prosecutor, Mizoram for respondent No.1 and Mr. C. Tlanthianghlima, learned Legal Aid Counsel for respondent No.2. 2. The appellant stands convicted under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter to be referred as the “POCSO Act, 2012”) and has been sentenced to undergo rigorous imprisonment for 20(twenty) years, to pay a fine of Rs.1,000/- (Rupees One Thousand) and in default of payment of fine, to undergo further rigorous imprisonment for a term of 3(three) months. The period of detention of the appellant in judicial custody has been directed to be set off from the terms of imprisonment as per the provisions contained under Section 428 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as the “Cr.PC”). The appellant is alleged to have sexually assaulted the victim, who was 6(six) years and 8(eight) months of age on 31.07.2018. 3. A complaint was lodged by the mother of the victim (PW-1) in the night of the occurrence, i.e. on 31.07.2018 alleging that around 7:30 PM on 31.07.2018, the victim was taken away by the accused/appellant to a location just below the quarters of the Soil Department at Mamit High School area, where he undressed the victim and manipulated her private parts. It was requested by her that action be taken against the accused/ appellant. Page No.# 3/13 Based on the afore-noted complaint, an FIR was registered under Sections 376AB of the Indian Penal Code, 1860 (hereinafter to be referred as “IPC”) read with Sections 6 and 42 of the POCSO Act, 2012. 4. The Investigating Officer (PW-7) has deposed before the Trial Court that immediately after the registration of the case, he took up the investigation and examined the victim as also the informant. He sent the victim for medical examination. He also, in order to ascertain the age of the victim, accepted the Birth Certificate brought by her mother to the Police Station. The statement of the victim was caused to be recorded by a Judicial Magistrate. He thereafter, visited the place of occurrence and arrested the accused/appellant and also sent him for medical examination. After investigation, he found that a prima facie case was established against the accused/appellant under Section 376AB of the IPC read with Section 42 of the POCSO Act, 2012 and, therefore, Section 6 of the POCSO Act, 2012 and submitted the charge-sheet under the afore-noted Sections. 5. While the victim’s and her mother’s statements were being recorded under Section 161 Cr.PC, PW-7 was not in his uniform. He has deposed before the Trial Court that he was absolutely sure that the victim had not been tutored to make her statement. 6. What can further be gathered from the deposition of PW-7 before the Trial Court is that the FIR was filed with utmost promptitude at 9:10 PM on 31.07.2018 and the accused/appellant was arrested in the same night. It was in that night only that both the victim as well as the Page No.# 4/13 accused/appellant were examined medically. The place of occurrence of sexual assault was very near the house of the victim. 7. The Doctor, who had examined the victim and the accused/ appellant in the same night, has been examined at the trial as PW-5. He deposed that in the night of 31.08.2018, he was on duty at Mamit District Hospital where the accused/appellant aged 56 years was brought before him. The victim was also produced before him, who was accompanied by her mother and it was only after obtaining the consent of the mother that he proceeded to examine the victim. He also questioned the victim regarding the incident to which she had replied that she was sexually assaulted by the accused/appellant. In fact, she went on to state before PW-5 that similar incidents had occurred sometimes in the past. The examination of the victim revealed that she was mentally and physically normal. However, no sign of any external physical injury on the body of the victim could be detected. PW-5 has further deposed that on the examination of genital area of the victim, it was found that it was normally developed and that there were no sign of scratch or laceration in the genital area. However, on deeper examination of her private parts, he found the hymen not to be intact. The examination had taken place with the assistance of and in presence of a female Nurse. He did not write anything about the ruptured hymen in the report as there was no column for recording of the opinion regarding the examination of private parts/hymen. However, the findings clearly reflect that the hymen was Page No.# 5/13 ruptured but it could not have been linked to the occurrence of 31.07.2018 as it was an old rupture. There was no sign of any bleeding or laceration. There were no seminal stains for any forensic examination. He has further deposed before the Trial Court that the accused/appellant was medically examined on the same day. The accused reeked of liquor and disclosed before him (PW-5) that he could not perform sexual act on the victim because of his being in a state of intoxication. He had only manipulated/ rubbed the private parts of the victim. He also did not have any injury on his body. During cross-examination, PW-5 deposed that he had no personal idea about the incident and whatever he had stated in the examination-in-chief was on the basis of what was told to him by the victim and the accused/appellant before their medical examination. He admitted that he was not certain regarding his findings about any sexual assault but he had seen redness in the private parts and that both the accused/appellant and the victim had neither taken bath nor had changed their clothes. 8. This deposition and the medical report only testify that some occurrence had taken place where an attempt had been made by the accused/appellant to sexually assault the victim. 9. Now, to ascertain whether the accusation made by the victim and the consequent complaint made by her mother are to be believed and whether even if such accusation is found to be correct, whether the conviction of the accused/appellant under Section 6 of the POCSO Act, 2012 would be justifiable. Page No.# 6/13 10. Perforce, we have very closely examined the deposition of the victim and her mother. 11. The mother of the victim has been examined as PW-1. She identified the accused/appellant in Court and stated that he resides in the same locality of the village where she resides and in fact, he is distantly related to the family. On 31.07.2018, she had sent her daughter (victim) to a neighbour’s house for getting the betel nut cracker sharpened. However, the victim took time in returning home. This made her go out in search for her (victim) in the neighbourhood when she had met PW-4, another neighbor, who had informed the mother of the victim that he had seen the victim going along with the accused/appellant. This reassured the mother of the victim that since she (victim) was seen last with one of her distant relatives, there was nothing to worry about. She came back home and questioned her daughter, who had already arrived by that time. After some hesitation, the victim narrated the entire occurrence to her (PW-1). Without loosing time, she informed her neighbours about the occurrence, who advised her to lodge the FIR. She proceeded alone to the Police Station and submitted the complaint. She confirmed the fact that on the same night, the victim was forwarded for medical examination. 12. With respect to the age of the victim, PW-1 deposed before the Court that the victim was born on 08.11.2011 and she also gave her Birth Certificate to the Police. After keeping the photocopy of the Birth Certificate, the original document was returned to her. In cross-examination, there does not appear to be any Page No.# 7/13 embellishment. She has clearly replied that the victim had not reported about any pain in her private parts. She had not physically examined the victim for any sign of injury or sexual assault, but from the medical report she was aware that there was redness in the private parts of the victim but no sign of bruise or laceration. She denied of having made any false statement at any point of time. 13. Analyzing such statements, it appears that soon after PW-1 learnt about the occurrence from her daughter (victim), she revealed this fact to her neighbours who advised her to lodge the FIR. The evidence on record indicates that PW-1 was never formally married to her husband and presently she was staying alone and the father of the victim was staying somewhere else. She, therefore, proceeded alone to the Police Station and lodged the FIR. If there were any intention to falsely depose against the accused/appellant, she would have done so but absence of any exaggeration in the allegation reflects that she thoroughly relied upon the victim for lodging the FIR. 14. There does not appear to be any intention on part of PW-1 to falsely allege such charge against the accused/appellant about whom she entertained no doubt in the beginning and in fact she had felt relieved when PW-4 had informed her that the victim had gone out with him. The occasion for the victim to disclose about the incident to her mother was her explanation for arriving home late. 15. The statement of the victim further appears to be absolutely truthful. She has been examined as PW-8, who has admitted that she Page No.# 8/13 knew the accused/ appellant from before as he had been visiting her house. She had been residing with her mother and grandparents in the same house. In fact, she was the one who had disclosed before the Trial Court that her parents had not formally married and that his father had been living separately. She claimed to be studying in Class-II in St. Francis School. What she was not sure of before the Trial Court was the exact date when the occurrence had taken place in the year 2018. She was watching television in the house of one neighbour when the accused/appellant called him from outside and offered to buy her some eatables. She followed the accused/appellant because she knew him before, who took her to the Soil Department area where he undressed himself, forcibly opened her undergarments and then inserted his private parts into hers. She was candid enough to admit that no threat was given to her by the accused/appellant. She did not feel any pain while the accused/ appellant was at the act but she felt pain only in the night. After the act, the accused/ appellant had given her Rs.20/- and had allowed her to go back home. In her cross-examination, she has reiterated that she was never threatened by the accused/ appellant. She has further categorically replied even when she was not of the age to understand all that, that the accused/appellant never ejaculated and that it was a short encounter. 16. The question which arises now is whether the evidence of PW-8 is of such sterling quality that it has to be accepted as true. 17. That the accused/appellant was known to the family and her Page No.# 9/13 from before; there was no embellishment in the allegation and the corroborative statement of the neighbour, namely, PW-4, who had not suspected any foul play that he had heard the voice of the accused/ appellant calling the victim, confirm the fact that there was a sexual encounter to which the victim had never consented. 18. It would be relevant here to refer to the deposition of PW-4, who had actually lent assurance to the mother of the victim that she should not worry and that her daughter was accompanied by the accused/appellant. He had only heard the voice of the accused/ appellant who had called the victim from outside the house where she was watching television programme. It was only on the next morning of the occurrence that he was told by the mother of the victim that such an occurrence had taken place. 19. With respect to the background check on the accused/ appellant, he deposed before the Trial Court that the accused/appellant is a divorcee and that one of his sons would be around 30 years of age. He admitted before the Trial Court that he had neither seen the incident nor had any idea about the same, except for the information given to him by the mother of the victim. He had got his statement recorded under Section 161 of the Cr.PC in the morning of the occurrence. 20. All these facts and the evidence garnered in the trial coalesce to form a chain of such evidence which unerringly points towards the sexual encounter of the victim with the accused/appellant for a short while. Page No.# 10/13 The accused/appellant, as it appears from the records, was divorced from his wife and was leading the life of a loner. He was known to the family of the victim. 21. Did he act in a state of stupor or intoxication? 22. He admits to being drunk. However, such admission is before the Doctor who had examined him, may not be taken into account. 23. At another stage when charge was being read out to accused/appellant, he cried hoarse before the Trial Court that he did commit such misdemeanor with a 7(seven) years old girl but since he could not perform the sexual act for some reason or the other, he ought not to be punished for aggravated penetrative sexual assault but for any lesser offence under Section 10 of the POCSO Act, 2012. Though such statements before the Trial Court at the time of framing of the charge and before the Doctor when he was being examined are not of great consequence, but the statement of the Doctor that he had smelt of liquor confirms that the accused/ appellant was drunk at that time. 24. That the accused/appellant did not run away and was arrested in the same night is perhaps indicative of the fact that since he could not actually perform the sexual act, he may not have been worried that any case would be lodged against him at the instance of the victim. The victim had not violently reacted to his advances and promptly left the place when he allowed her that freedom. He also gave her Rs.20/- for eatables as he had promised her. 25. Under such circumstances, whether accused /appellant could Page No.# 11/13 be held guilty under Section 6 of the POCSO Act, 2012. 26. Section 3 of the POCSO Act, 2012 defines “penetrative sexual assault”. Sub-section (c) of Section 3 provides that if an accused manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person, that would constitute penetrative sexual assault. 27. Section 5 of the POCSO Act, 2012, which provides circumstances under which a penetrative sexual assault would be an aggravated one. Sub-section (m) of Section 5 makes such a penetrative sexual assault of an aggravated category if sexual assault is made on a child below 12(twelve) years of age. 28. The accused/appellant was also charged under Section 376AB of the IPC read with Sections 6 and 42 of the POCSO Act, 2012. 29. Section 376AB provides for punishment of rape on a woman under 12(twelve) years of age. Section 375 of the IPC defines “rape”. Explanation 1 attached to Section 375 of the IPC provides that for the purposes of this Section, “vagina” shall also include labia majora. 30. That the accused/appellant was punished under Section 6 of the POCSO Act, 2012 for the reason of Section 42 of the POCSO Act, 2012, which provides that when an act or omission constitutes an offence punishable under the Act and also under various Sections of the IPC, then the accused shall be liable to punishment under the POCSO Act, Page No.# 12/13 2012 if the punishment provided under this Act is greater in degree then under the IPC. 31. This takes us to the question whether POCSO Act, 2012 would be invoked, which can only get triggered if the victim is a child. 32. It was never disputed during the investigation or during the trial that the victim was 6 yeas 8 months old. The Birth Certificate disclosed that the victim was born on 08.11.2011. It would also be profitable to state here that the accused/appellant in his statement under Section 313 of the Cr.PC has also admitted that the victim was around 7(seven) years of age at the time of occurrence. As such, there does not appear to be any doubt with respect to the victim being a minor at the time of the commission of the offence. 33. In his 313 Cr.PC statement, for the first time the accused/appellant claimed that he had been falsely implicated because of the enmity with the family of the victim. This was a bald statement without any supportive evidence. In fact, one defence witness was examined who made a short statement at the trial that he knew the appellant from before who bears a good moral character and it is not possible to believe such an accusation against him. 34. This certification is of no value so far as the assertion of the appellant that he has falsely been implicated because of the enmity. 35. Situated thus, we find no reason to take any other view of the materials on record. We do reckon that the accused/appellant at present is more than 60(sixty) years of age but there is no possibility of any Page No.# 13/13 interference with the conviction and sentence on sympathy. 36. The appeal, therefore, fails. 37. The judgment and order of the conviction and sentence is affirmed. 38. The Trial Court Record (TCR) be sent back forthwith. 39. In appreciation of the assistance rendered by the learned Amicus Curiae and the learned Legal Aid Counsel representing the respondent No.2, the fees due to them shall be paid by the High Court Legal Services Authority as per the prescribed norms. JUDGE CHIEF JUSTICE Comparing Assistant