Dismissed

Biakhmingthanga v. State of Mizoram and Anr.

Gauhati HC1 May 2025Crl.A./5/2022

Case brief

AI extract

What is this about?

Appeal against conviction for aggravated penetrative sexual assault of an 11-year-old under Section 6 POCSO. Court held minor discrepancies did not shake the prosecutrix's credible testimony, corroborated by counselors and medical evidence; conviction and sentence affirmed by dismissing the appeal.

What did the court decide?

Conviction and sentence under Section 6 POCSO upheld; appeal dismissed; legal aid counsel's fee payable by State Legal Services Authority.

Biakhmingthanga Vs State of Mizoram and Anr. — Child Sexual Offences (POCSO) | Gauhati HC (2025)

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GAHC030001842022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.A./5/2022

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Biakhmingthanga S/o Lalvuana R/o Venghlui, Lunglei, Mizoram VERSUS State of Mizoram and Anr. Aizawl, Mizoram 2:R. Zodinsang

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Advocate for the Petitioner : Mr. T Lalnunsiama

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Advocate for the Respondent : P.P./Addl.PP, Mizoram

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BEFORE

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HON’BLE MRS. JUSTICE MARLI VANKUNG

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Date of hearing : 08.04.2025

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Date of judgment : 02.05.2025

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J U D G M E N T & O R D E R (CAV)

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Heard Mr. T. Lalnunsiama, learned counsel for the appellant. Also heard Mrs. Mary L. Khiangte, learned Addl. Public Prosecutor for the State respondents and Mr. H. Zodinsanga, learned Legal Aid Counsel for respondent No. 2.

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2 . This is an appeal filed against the Judgment and Order dated 08.12.2021, passed by the learned District & Sessions Judge, Special Court (POCSO Act), Lunglei District in Crl. Tr. No. 516/2020 (Ref. Lunglei P.S. Case No. 54/2020 dated 24.07.2020) wherein the appellant was convicted under Section 6 of the POCSO Act on finding him guilty of committing the offence under Section (l) & (m) of Section 5 of the POCSO Act and thereby sentenced to undergo R.I. for a period of 10 years and to pay a fine of Rs. 1,000/- in default the imprisonment for another period of one month.

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3 . Facts of the case in brief is that an FIR was lodged by the informant/prosecutrix on 24.07.2020 to the effect that during the year 2019, though she does not remember the date and time, the accused/appellant took her to a basement at Venghlun, Lunglei where he had sex with her. She had kept quiet because she was afraid. The FIR is filed for taking legal action against the person who had forcefully committed sexual assault. The case was registered as Lunglei, P.S. Case No. 54/2020 under Section 6 of the POCSO Act dated 24.07.2020. Thereafter, the case was investigated into and the case I.O. during investigation examined the informant and recorded her statement. She was sent for medical examination and was also sent for recording of her judicial statement before the JMFC. Her birth certificate was also seized. The accused was arrested and interrogated, his statement was also recorded. The case I.O. also examined the other prosecution witnesses. On receipt of the medical report, the case I.O. found prima facie case against the accused under Section 6 of the POCSO Act and filed the chargesheet. The learned Trial Court framed charge against the accused under Section 6 of the POCSO Act,to which the accused pleaded not guilty and claimed for trial. During trial as many as 6 prosecution witness were examined. The accused on examination under Section

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313 CrPC denied all the incriminating evidence adduced against him. 2 defense witnesses were also examined. The learned trial Court after hearing both the parties, found the accused/appellant guilty of the charge under Section 6 of the POCSO Act and sentenced him to undergo his term of imprisonment as already mentioned above.

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4 . Mr. T. Lalnunsiama, learned counsel for the appellant submitted that the learned trial Court had erred in convicting the appellant based on the sole testimony of the prosecutrix, which was not reliable and was contradictory with her statement recorded u/s 164 CrPC and the evidence adduced by the other prosecution witnesses. The learned counsel submitted that the prosecutrix had deposed about a previous statement made by her which is mixed up, since she do not mentioned the name of a person named Nunpuia with whom she was supposed to have had sex. The prosecutrix in her cross-examination, had mentioned that she was with the accused below the house of U Baby at about 8:00 pm and she had also admitted that the accused did not sleep in his room, but slept in the sitting room. The learned counsel submitted that contradicted with the deposition of PW-6 who had stated that the prosecutrix and the accused had came to their house at around 7:00 pm where they had a house warming party and further submitted that the prosecutrix was drunk at that time and the accused and the prosecutrix had left her house about 9:15 pm and left the house around 9:20 pm.PW-6 had further mentioned that he saw the accused and the prosecutrix entering the house of the accused together. It is also clear that the prosecutrix was drunk and had consumed liquor at the time of the incident.

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5. The learned counsel further submitted that though the medical evidence

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shows that the hymen was torn at 4 & 7 O’clock position, however, there is nothing in the evidence to show that the tearing of the hymen was caused by the accused/appellant. He submitted the Case Worker PW-4 and the Counselor PW-5 knew about the incident only from what was told to them by the prosecutrix and that they have no direct knowledge of the incident.

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6. The learned counsel further submitted that the deposition of the prosecutrix is contradictory with the statements made by her under 164 CrPC, since in her statement made under Section 164 CrPC, she had mentioned that she stayed in the house of U Babyi and thereafter, the appellant entered the house and had committed rape upon her. However, in her deposition before the court she had mentioned that when she gained her senses, the accused was having sex with her and that he inserted his penis inside her vagina.

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7 . The learned counsel further submitted that in the evidence adduced by DW-1 who is the mother of the prosecutrix, she had mentioned that their house was measuring only 18 sq.ft. and that the DW-1 was in the house at the time of the incident and as such it is not possible for her not to know of the incident and nothing could have happened without her knowledge in such a small house. He further submitted that DW-2 had deposed that the house of Baby is a small store room and very messy, under such circumstances, it is not possible for the accused/appellant who have committed the offence as stated by the prosecutrix. Thus, it is doubtful that the appellant could have sexually assaulted the prosecution under the above circumstances.

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8. The learned counsel in support of his submission has relied on the judgment of the Apex Court in Buddhu Singh & Ors. Vs. State of Bihar (Now Jharkhand) reported in ( 2011) 14 SCC 471 wherein, it was held that

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in criminal cases the rule is that the accused is entitled to benefit of doubt and if the Court is of the opinion that from the evidence, two views are possible, then benefit is to be given to the accused. He submits that in the instant case also because of the discrepancies found in the prosecution evidence it is possible that the accused did not committed the offence. He has also relied on the judgment of the Apex Court in Shivaji SahabraoBobade&Anr. Vs. State of Maharashtra reported in ( 1973) 2 SCC 793 wherein, the Apex Court held that in criminal cases, the accused must be guilty and not may be guilty of having committed offence. The learned counsel also relied upon the judgment of the Apex Court in Prahlad Vs. State of Rajasthan reported in ( 2019) 14 SCC 438 wherein, again it was reiterated then the benefit of doubt should be given to the accused in a POCSO case.

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9 . Mrs. Mary L. Khiangte, learned Addl. Public Prosecutor on the other hand submitted that even if the room in which the offence was committed was only 18sq.ft. as deposed by DW-1, she was awake at that time, however, many things can still happen within such a small space considering that she is the mother of 4 small children. She further submitted that even though she had stated that she was awake at the time when they entered the house, however, there was nothing to show that she was awake the whole time/night, so she would not be aware of what was happening in the room throughout the night. She further submitted that even though DW-2 had mentioned that the room below the house of Babyi was small and very messy, however, DW-2 deposed in the Court on 07.10.2021 and the incident had occurred during the month of June, 2019, therefore, there is nothing to show that the room was in a messy state during the month of June, 2019. She further submitted that DW-2 had simply mentioned that the accused had come to their house at around 9:00 pm

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during the month of June, but there is nothing to show that he had come to their house at 9:00 pm on the day when the incident had occurred. There is also nothing to show that the room was locked on the date of the incident.

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10 . The learned Addl. Public Prosecutor further submitted that regarding the discrepancies in the time, even though PW-6 had mentioned that the accused/appellant had left with the prosecutrix at around 9:15 pm and not exactly at 9:15 pm and therefore, this would not be a significant difference since incident was said to happen at around 8:00 pm by the prosecutrix. Further the exact timing may also not be noted by the prosecutrix. The learned Addl. Public Prosecutor submitted that the prosecutrix was only of 11 years old and the evidence shows that she is coming from a broken family, having a step father and her mother is said to be selling liquor. The prosecutrix was also required to be kept in a home at Lunglei Child Care Centre due to her broken family. The learned Addl. Public Prosecutor further submitted that what she had stated before the case worker, PW-4 and the Counselor, PW-5 are the same, and the Counselor had also informed her of the importance of speaking the truth. Thus, the deposition of the prosecutrix is reliable and not doubtful.

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11. The learned Addl. Public Prosecutor further submitted that though there are minor discrepancies found in the statement made by the prosecutirix in her statement recorded under Section 164 CrPC and her deposition recorded by the Court, however, these are minor discrepancies which do not touch the core of the case. She further submitted that the medical evidence showing that her hymen was torn at 4 to 7 O’ Clock position proved that there was penetration which is caused by the appellant. She also submitted that the evidence of PW-6 also corroborates with the fact that the appellant was with the prosecutrix on

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the evening when the incident happened, since she had seen the appellant with the prosecutrix going towards the house of the appellant. She submitted that it is not known what happened after they went to the house of the appellant and that they could have gone to the room below the house of Baby, where the appellant first committed sexual assault upon the prosecutrix and later again sexually assaulted her in the house. It is not a disputed fact, that she was asked to go home early in the morning at 4:00 am. She therefore submitted that the link of chain of evidence is complete and that the prosecution has been able to establish the foundational facts against the appellant.

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12. The learned Addl. Public Prosecutor has relied on the judgment of a Coordinate Bench of this Court in Bhupen Kalita Vs. State of Assam reported in ( 2020) 5GLR 153 , wherein it has been clearly stated burden of proof is reversed in POCSO cases, wherein it is for the appellant to prove his innocence after the prosecution have established their foundational facts, which is that in this case.

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13 . The learned Addl. Public Prosecutor has also cited the judgment of the Apex Court in State of Himachal Pradesh Vs. Manga Singh reported in ( 2019) 16 SCC 759 wherein, the Apex Court held that minor contradictions which do not touch the core of the case could not vitiate the trial against the accused/appellant.

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14. Mr. H. Zodinsanga, learned Legal Aid Counsel for respondent No. 2 submits that he will adopt the submissions made by the learned Addl. Public Prosecutor and further submits that the medical evidence has proved that there is penetration of the hymen of the prosecutrix and the prosecutrix has clearly stated that the accused/appellant had committed sexual assault upon her,

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therefore, the prosecutrix has established the offence under Section 5 of the POCSO Act.

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15. Mr. T. Lalnunsiama, learned counsel for the appellant in rebuttal has pointed out that even though the medical evidence shows that there is an old tear, however, there is no conclusive prove to show that the tear was caused by the accused/appellant and therefore, the medical evidence is not a corroborative evidence. The Doctor himself, in his cross examination has stated that he cannot say whether the tear was caused due to sexual intercourse by the accused. He further submitted that even though the burden of prove is reversal in the POCSO cases, however, the Apex Court in Prahlad Vs. State of Rajasthan (Supra) has held that benefit of doubt is to be given to the accused person is also to be applied in such POCSO cases.He further submitted that whether or not, the room was messy at the time of the incident was not raised during cross examination and the only prove that the room was messy is from what was stated by DW-2, since the said Baby was also not made a prosecution witness.

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Evidence adduced before the Trial Court

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16. In order to fully appreciate the submissions made by the learned counsels for both the parties, this Court find it fit to highlight the evidence recorded before the learned trial Court herein under:

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17. PW-1/Prosecutrix, R.Zodinsangi, deposed to the effect that she was born on January 30, 2008. She finished class six on 07.10.2020. She knew the accused, which was related to her step-father. He came to their house. They

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lived in Venghlun, Lunglei, and so did the accused. One evening in the middle of 2019, she went to Nu Apiani's house in Venghlun. Nu Apiani asked her stepfather if she could stay the night, and he said yes. She drank liquor at the house and got drunk. She passed out. When she woke up, she was in a small, empty room under U Babyi's house and the accused was having sex with her. He put his penis inside her vagina. Then, he took her to his house and had sex with her again on his bed. After she slept, he woke her up around 4:00 AM and told her to go home. She filed an (FIR) on 24.07.2020 after she was taken by the YMA leaders from Pukpui to the Lunglei Child Care Centre (CCC) on 19.02.2020. She and her mother moved back to her mother’s parents’ house in Pukpui later that year, because her step-father was in the TNT Camp in Lunglei. While at the CCC, she got counseling. She told the counselors what the accused did, because they said they wanted to help her. They said they would do what they could. Counselors Nu Nunpuii and Nu Saii asked if she wanted to press charges, and if she would tell the police what happened and she said yes. The Child Welfare Committee (CWC) also asked if she wanted them to tell her mother and she said yes ,so they told her mother, but mother didn't want to press charges because of money problems. However, the CWC said they would help so she went to the Lunglei police station with the counselors and filed the FIR. Exhibit P-1 was the FIR. She also stated that the judicial statement was shown to her that day and found that her statement was wrongly recorded. In some portion, another incident relating to Nunpuia was written and found that her statement was mixed up. Exhibit P-2 was the judicial statement which was mixed up. She didn't tell anyone what happened at first because she was afraid it would make her step-father angry, since he is related to the accused.

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During cross examination she stated that the accused did not misbehave with

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her earlier. That she cannot tell the date and month when the incident, took place.That she was with the accused below the house U Babyi at about 8 PM. She admitted that she stated before the Medical Officer who examined her that she drank a glasses of liquor given to her by Nu Apiani. She stated that it is a fact that her statement to the Doctor was true. And that it is a fact that she stated before the Police official that she drank a glass of alcohol kept on the table at Nu Apiani's house, and that it is a fact that the accused did not sleep in his room, he slept in the sitting room and there was nobody else sleeping in the sitting room. She stated that though there were other people in the house of the accused when he took me to his house, all of them were asleep.

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18. PW-2 & PW-3 are the seizure witnesses who seized the birth certificate of ‘X’ exhibited as Ext.P-3 and Ext.P-4 as the Seizure Memo.

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19. PW-4, Saimawii Sailo, Case Worker at Child Care Centre, Lunglei deposed to the effect that ‘X’ came to the Child Care Centre in Lunglei on 19.02.2020. The Child Welfare Committee (CWC) sent ‘X’ to the center. They said her mother wasn't a good parent. This was because her mother sold alcohol and married another man after divorcing ‘X's father. At the center, the children got counseling and learned about their rights. On 07.07.2020, ‘X’ told her that she wanted to tell her something important. ‘X’ then told her that she went to U Apiani's house in Venghlun, the locality where her mother lived with her second husband. She drank a glass of something she thought was water, but it was alcohol. She passed out. When she woke up, she was in a building under U Babyi's house with the accused, Biakhmingthanga. He had taken her pants off and was having sex with her. Then, he took her to his house where everyone was asleep. They slept in a bed in the living room. He had sex with her again, and she fell asleep.

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He woke her up around 4:00 AM and told her to go home. PW-4 then went with ‘X’ to Lunglei Police Station and helped her file an FIR.

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During cross examination she stated admitted that she did not hear anything about the incident other than what was stated to her by the victim and that did not have any other evidence about the incident.

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20. PW-5, Lalnunpuii works as a counselor at the Child Care Centre in Lunglei. She deposed to the effect that ‘X’ came to the Child Care Centre on February 19, 2020. The Child Welfare Committee (CWC) sent her there because they said her parents were "unfit” since her mother got remarried in Venghlun after divorcing her father. The Pukpui YMA Branch caught ‘X’'s mother selling alcohol. They wanted to take her to a shelter, since there was no other place for her to go, the CWC sent her to their center. She gives counseling to the children and tell them about their rights. She stated that ‘X’ once told her co-worker, Saimawii Sailo, about having sex with the accused so she told the ‘X’ that making false accusations was risky. But ‘X’ told her the same story. She told her that one evening, she went to U Apiani's house and drank water from a table. She realized it was alcohol and passed out. Later, she woke up and was with the accused under U Babyi's rented house, in an empty room. Her pants were gone, and the accused had sex with her. He then took her to his house, and they slept on the same bed. He had sex with her again. He woke her up around 4:00 AM and told her to leave. From talking with the ‘X’, PW-5 learned that she was neglected and moved around freely.

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21. PW-6, Lalpianhunmawii deposed to the effect that she has worked as an Outreach worker for Grace Society since October 2019.In May 2019, she rented a house and moved out from her parents' home with her children. The following month, she had a house warming party with friends. Some colleagues brought liquor and they drank. 'X' came to her house around 7 pm. And she knew 'X' because she rented the house above hers. She saw 'X' was drunk, but did not see her drinking at the party. 'X' had vomited, and she cleaned the mess and changed 'X's clothing. During this time, one of PW-6's friends was shouting. Hearing this shouting, the accused came to the house. The accused told her that he would take 'X' home, saying 'X' was related to him. When they left, 'X' could barely walk. She saw them enter the accused's house. 'X's parents were working in the fields that evening and did not return home. 'X' often spent nights at different houses.

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During cross-examination she stated that the accused came to her house at about 9:15 pm and they left at 9:20 pm and she knew that the accused and the ‘X’ went inside the house of the accused. As far as she knew the accused and the ‘X’ did not go elsewhere before they entered the house of the accused.

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22. PW-8, Dr. Catherine Lalmuanawmi, deposed to the effect that on 24.07.2020, at 2:30 PM, ‘X’ was brought to her for a medical exam which was related to a claim of rape. She was brought to the hospital by her guardian, Saimawii. ‘X’ said that she was raped by someone at her neighbor Baby's house in the middle of 2019. She couldn't remember the exact month. She said she drank five glasses of alcohol before it happened. She also said she had never had sex before and had not started her period yet. When DW-8 examined her, ‘X’ was physically and mentally healthy for her age. She didn't seem to be under

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the influence of alcohol or drugs. There were no marks of violence on her body. During the genital exam, her genital organs were normal for her age. She had no pubic hair and no semen was found. She had no bruises or cuts on her external or internal genitals. Old tears were seen in her hymen at the 4 and 7 o'clock positions. There were no recent injuries and no signs of infection. Because the alleged incident happened more than six months prior, no vaginal smears were taken for testing. No X-ray was taken to determine her age. The medical examination report id exhibited as Ext P-5.

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During cross examination she stated that she cannot say whether the hyminal tear was caused due to sexual intercourse by the accused with ‘X’.

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On re- examination she stated that in her opinion the old hymenal tears at 4 and 7 O’Clock position was due to rape.

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23. PW-9, R. Lalhmingliani, Sub-Inspector of Police w/o Vanlalkulha deposed to the effect that ‘X’ from Lunglei Child Care Centre filed an FIR on 24.07.2020 registered as Lunglei PS Case No. 54, dated 24.07.2020, u/s 6 of the POCSO Act. She was asked by the Officer-in-Charge of Lunglei Police Station to investigate the case. First, she examined and recorded the statements of ‘X’ on the date the FIR was filed. PW-5/Z.D. Lalnunpuii (Counselor) and PW-4/ Saimawii(Case Worker) were there too and she also talked to them and wrote down their statements. She asked for a medical exam for ‘X’ and got the report. She went to the place where the incident happened, in Venghlun, and made a Crime Detail Form. She arrested the accused who resided at the place near the incident occurred. She took the accused to the Police Station, interrogated him and recorded his statement. She called ‘X's mother and asked for ‘X's birth certificate. The mother brought the certificate to the Police Station and she

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seized it in the presence of witnesses. The birth certificate showed ‘X’ was born on 30.01.2008, which meant she was a child. She asked for a medical exam for the accused and got a report saying he was fit to be held in custody and made a prayer for his remand under judicial custody on 25.07.2020. She also made a prayer for recording of judicial statement of ‘X’ to CJM, Lunglei District, she received ‘X’ statement which was recorded by Pi. F. Laltlansangi, JMFC. She examined PW-6/Lalpianmawii as a witness and recorded her statement. She found enough evidence against the accused under Section 6 of the POCSO Act and filed a chargesheet against him.

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Exhibit P-1 as FIR

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Exhibit P-2 as the judicial statement of the ‘X’

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Exhibit P-3 as the ‘X's birth certificate.

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Exhibit P-4 as the seizure memo of the birth certificate

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Exhibit P-5 as ‘X's medical examination report

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Exhibit P-6 as her request for recording judicial statement of ‘X’

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Exhibit P-7 as the arrest memo of the accused

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Exhibit P-8 as the Crime Detail Form she made.

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Exhibit P-9 as the chargesheet she filed.

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During cross-examination she stated that the place of occurrence was at Venghlun. However, the time of occurrence could not be stated by X. As per her investigation the time the incident took place was at about 08:00 PM - 09:00 PM and she did not examine Baby-i as witness.

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24. DW-1, Zoramthangi w/o Lalvuana, Venghlun, Lunglei, Mizoram, deposed to

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the effect that she recalled that on the month of June 2019 one evening around 10:00 PM, the accused accompanied ‘X’ to their home. She was already in bed, but not asleep. ‘X’ is her elder brother's son's stepdaughter. The accused brought her home because ‘X’ was drunk. Their house is only 18 sq.ft with no partitions. There are three beds: one for DW-1/Zoramthangi and her husband, one for their daughter, and the other for the accused. The accused placed ‘X’ on his bed and he slept on a long chair. The next morning, the accused woke ‘X’ and she left for her house.

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During her cross examination she stated that X never spent the night in their house except the said evening. That they usually get up in the morning around 06:00 AM - 06:30 AM. She did not know whether the accused and X went below the house of Baby-i before coming to their house.

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25. DW-2, P.C. Hrangtluanga, casual labourer s/o P.C. Rualchhinga deposed to the effect that one evening, around 9:30 PM in June 2019, the accused came to his house. The accused left for his house and he walked with him to Primary School. He knows that there is a store room below an empty house which was locked. Above the empty house, Makungi, the house owner, and Baby-i stayed by dividing the floor into two. The store room is so messy that only one person could enter. He did not know what the accused did after he left him near the Primary School.

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26. In the examination of the accused /appellant under Section 313 CrPC he denied having sex with ‘X’ but admitted that he took her to our house that evening and asked her to go the next morning at about 04:00 AM. But he did not have sex with her. He made her sleep on his bed. In that room his parents and siblings were also sleeping on their respective bed. He slept on the long

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chair in the sitting room and not in the bed room. He admitted the evidence that on the said evening, he took her out from the house of Lalpianhunmawii. She was drunk that time and could hardly walk.

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Findings and reasons thereof

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27. In the instant case, it is seen that the date of birth of the prosecutrix as per her birth certificate exhibited as Exbt-3 has not under challenged and the date of birth of the prosecutrix is shown as 30.01.2008. Thus, sometime in mid 2019, when the incident was said to occur, she would be around 11 years of age and when her deposition was recorded on 07.10.2020, she would be 12 years and 9 months. It is seen that there are certain discrepancies in her deposition recorded in the court and her statement recorded u/s 164 CrPC wherein, while describing the incident. In her statement under 164 CrPC, she stated that she sat in the room below the house of U Baby when the accused/appellant entered the room and had committed sexual assault however, in her deposition recorded in the Court, she had stated that she was unconscious and when she woke up, she found the accused/appellant lying on top of her having sex with her. In her statement u/s 164 CrPC, she had been more elaborate by stating that the accused/appellant came and lay on top of her. During this time, he thrusted his pelvis on her for around 5 to 10 minutes. She could not shout as his entire body was on top of her body. He piggy-backed her home and made her lied on his bed and he made her spend the night with him. He had sex with her again and that she slept next to him that night. While in her deposition recorded before the Court, she had stated that he inserted his penis into her vagina. He then took her to his house. He again had sex with her on his bed. After sleeping, he woke her up at the back door and asked her to go home. This Court however,

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finds that her statement is consistent with the fact that the appellant/accused had committed sexual assault on her below the house of U Baby and that he later carried her and had sex with her on his bed.

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28. It is seen that the Apex court in State of H.P. v. Manga Singh, (Supra) held that:

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“10. The conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence. The conviction can be based solely on the solitary evidence of the prosecutrix and no corroboration be required unless there are compelling reasons which necessitate the courts to insist for corroboration of her statement. Corroboration of the testimony of the prosecutrix is not a requirement of law, but a guidance of prudence under the given facts and circumstances. Minor contractions or small discrepancies should not be a ground for throwing the evidence of the prosecutrix.

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29. The Supreme Court in Bhagwan Jagannath Markad and Others V State of Maharashtra, (2016) 10 SCC 537 observed as under:-

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“19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence.

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Discrepancies may arise due to error of observations, loss of memory due to

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lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness.”

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30. The Supreme Court in Thoti Manohar V State of A.P, reported in (2012) 7SCC 723 observed that minor discrepancies on trivial matters not touching the core of the matter cannot bring discredit to the story of the prosecution. Giving undue importance to them would amount to adopting a hyper- technical approach. The court while appreciating the evidence should not attach much significance to minor discrepancies, for the discrepancies which do not shake the basic version of the prosecution case are to be ignored. It was further observed that no evidence can ever be perfect for man is not perfect and man lives in an imperfect world.

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31. This Court also find it fit to refer to the decision of the Apex Court in the case of Sham Singh v. State of Haryana , reported in (2018) 18 SCC 34 , wherein the Apex Court has observed and held as under:-

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"6. We are conscious that the courts shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may

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lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the

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background of the entire case and the court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual assaults. [See State of Punjab v. Gurmit Singh3 (SCC p. 403, para 21).]

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It is also by now well settled that the courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. (See Ranjit Hazarika v. State of Assam4.)"

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32. The Apex Court in Karnel Singh Vs. State of Madhya Pradesh reported (1995) 5SCC 518 had also held that ‘a women who is a victim of sexual assault is not an accomplice to the crime, but as a victim of another person’s lust and therefore, her evidence did not be tested with the same amount on suspicion and that of an accomplice. She is not in the category of a

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child witness or an accomplice and therefore, the rule of prejudice that her evidence must be corroborated in material particular has no application, at the most the Court may look for some evidence which leaves to assurance.

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33. In view of the above observations and decisions of the Apex court, this court finds that the discrepancies found in the deposition of the prosecutrix in the court and her statement recorded under 164 Cr.P.C are minor discrepancies which do not negate her testimony that the accused appellant had sexual intercourse with her in a empty room under ‘U Babyi's’ house and that he took her to his house and had sex with her again on his bed. It is also seen that the prosecutrix had stated that she first inform about the incident to the counselors, Nu Nupuii (PW-5) and Nu Saii (PW-6) when she was admitted in the Child Care Centre on 19.02.2020. On perusal of the deposition of Nu Nupuii (PW-5) and the deposition of Nu Saii (PW-6), it is seen that both their depositions corroborate with the deposition of the prosecutrix ‘X’. A perusal of the medical report and the deposition of PW-8, who is the doctor who conducted her medical examination, show that on examination of her genital organs, there is old tear hymen at 4 to 7 O’Clock position. The doctor in her re-examination also stated that in her opinion, the old hymenal tear at 4 to 7 O’Clock position was due to rape. The prosecutrix had also stated before the doctor that she never had sex before and had not started her period yet. Thus, this Court finds that the evidence of PW-5, PW-6 and PW-8 corroborate with the evidence of the prosecutrix and therefore find that there are no any grounds to doubt her testimony and find it trustworthy, inspiring the confidence of this Court.

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34. Further, it is also observed the appellant on examination u/s 313 had also not denied that he had taken the prosecutrix to his home on the said date of

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the incident and that he had asked her to go home at around 4 AM the next day, he has also not denied that he had made her sleep on his bed while his parents and his siblings were also sleeping in their respective beds. DW-1 who is the mother of the accused/appellant also admitted that the accused/appellant had placed the prosecutrix on his bed and that the next morning, he had asked her to go home which proves that the accused was with the prosecutrix as claimed by her. It is also observed that there is no explanation why she was asked to leave as early as 4 am the next day which is found unnaturally early under normal circumstances. It is also seen from the evidence that there is no reason whatsoever for the prosecutrix to falsely implicate the accused/appellant of the offence.

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35. In view of the above findings and reasoning, this Court is of the considered opinion that the offence of aggravated penetrated sexual assault is clearly established and proved by the prosecution beyond reasonable doubt against the accused/appellant and hence do not find ground for interfering with the Judgment and Order dated 08.12.2021, passed by the learned District & Sessions Judge, Special Court (POCSO Act), Lunglei District in Crl. Tr. No. 516/2020 (Ref. Lunglei P.S. Case No. 54/2020 dated 24.07.2020).

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36. Accordingly Crl.No.5 of 2022 stands dismissed and disposed of.

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37. In appreciation of the services rendered by Mr. H.Zodinsanga, learned Legal Aid Counsel his requisite fees are to be paid by the State Legal Services Authority as per existing rates.

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JUDGE

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Comparing Assistant

Biakhmingthanga v. State of Mizoram and Anr.

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Biakhmingthanga v. State of Mizoram and Anr.

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