C. Lalramchhana @G. Lalramchhana Vs The State of Mizoram and Anr.

1. This is a criminal appeal filed against the Judgment convicting the appellant dated 07.09.2022 as well as the sentencing order dated 12.09.2022 passed by the Special Judge (POCSO Act), Champhai Judicial District, Mizoram by which the appellant was convicted under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘the POCSO Act’) and was sentenced to undergo Rigorous Imprisonment for a period of 10 (ten) years with a fine of Rs. 20,000/( Rupees twenty thousand) and in default of the said fine, to undergo Rigorous Imprisonment for another period of 2 (two) months.

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FACTS:

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2. The prosecution case as is revealed from the First Information Report (FIR) dated 07.09.2016 is that the victim who was one of the wards in the Special Home and who was a student in Vengthlang Middle School, was lured with money by the appellant and that on two instances i.e. on 22.07.2016 and 29.07.2016, she was subjected to sexual abuse at a vacant house near the school during the lunch break by the appellant. On receipt

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of the said FIR, the police registered the case as CPI-PS Case No. 135 of

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2016 and registered under Section 6 of the POCSO Act and investigated the case. On completion of the investigation, the Police filed charge-sheet vide charge-sheet No. 1 of 2017 on 13.10.2016 against the appellant under Section 6 of the POCSO Act. Thereafter, on completion of the necessary requirements under the law, the learned Special Court (POCSO Act), Aizawl Judicial District framed charge against the appellant under Section 6 of the POCSO Act, on 11.04.2017. Thereafter, the trial proceeded and the accused was examined under Section 313 of the Cr.PC and the learned Trial Court after completion of the trial, convicted the appellant as mentioned above. It is this judgment and order passed by the Special Court (POCSO Act), Champhai, which is put to challenge by the appellant before this Court.

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EVIDENCE

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3. The most clinching evidence in the instant case is the evidence of the victim who is arrayed as PW-10. She stated before the Trial Court that she was admitted to the Shelter Home due to an unfortunate incident happened to her on the previous year and that after her admission in the Shelter Home, she was enrolled in the Champhai Middle School and at the time of occurrence, she was studying in Class-VII. She stated that she saw

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the appellant for the first time when she was going back from her school to her home but she did not speak to him and that subsequently, one day, when she and her friends were sitting together at the waiting shed near the school, the appellant came to her and invited her to have physical relationship with him at which she did not reply anything. She further stated that one day later, she went to a shop nearby to purchase some items and at that juncture, the appellant who was little away waived at her and that she went near him, who took her to an empty house below the school. She then stated that in the said empty house, the appellant made her lie down on the bed and started molesting her and by removing her clothes he mounted on her and had physical relationship with her. She also stated that since the appellant over-powered her, she did not had the strength to resist him from doing the act and that the act was for a short duration and that further she was given Rs. 20/- by the appellant. She stated that the incident took place on 22.07.2016. The victim thereafter, stated that again on 29.07.2016 during the lunch break, she and the appellant went to the outskirt of the Champhai town and that the accused again had sexual relationship with her. She stated that during this time she did not resist as the appellant used to give money to her. She then stated that the first occurrence came to the knowledge of the authorities of the

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Shelter Home. She also stated that after the second incident, the appellant promised her to pay money as and when she demands and that the appellant whom she addressed as maternal uncle, to hide the identity, gave her Rs. 500/- and that a clandestine sexual relationship had established between her and the appellant.

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During the cross-examination, she reiterated that the incident had happened twice i.e. on 22.07.2016 and 29.07.2016. She clarified that although in the FIR, the first incident was mentioned to have occurred on 19.07.2016 but the same had in fact occurred on 22.07.2016. She also reiterated that the incident of rape had happened to her even before the present incident. In her cross-examination, her statements in her examination-in-Chief were not demolished and she stuck to her version as stated earlier.

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4. As it has been settled by the Hon’ble Apex Court, that in cases involving sexual offenses, the statement of the victim right from the inception to the Trial Court has to be considered, the statement made by the victim before the Magistrate and police are narrated below.

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5. The victim was examined under Section 164 of the Cr.PC and the

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same was recorded on 09.09.2016 i.e. two days after the registration of the FIR and she stated before the Magistrate that she does not remember the date as to when she went to the shop near the school where she met the appellant and who had said something to her which she found very unpleasant and that on the next day the appellant wanted to talk to her, to which her friends asked her as to whether she knew him and that she answered in the negative. She also stated that since her friends keeps on asking her about the appellant, she told them that he was her maternal uncle and that the appellant gave her Rs. 20/- and that she left. She thereafter, stated that when she was returning from the school, the appellant asked her to meet him near the shop and that she did not had the courage to say no, since the appellant used to give her money and that she went near the shop and met the appellant. She then stated that the appellant took her to the vacant house, closed the door and touched her private parts and that he removed her clothes, made her lie down on the bed and had sexual intercourse with her. She stated that the said incident was on 19.07.2016 and that she was given Rs. 100/- on that day.

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6. The victim further stated that the next incident took place on 29.07.2016, on the day when the appellant took her after school to a forest

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area and on reaching the same, he removed her clothes and again had sexual intercourse with her and gave her Rs. 500/- and that he again invited her after 29.07.2016, to which she refused. She then informed the people at the Shelter Home after a certain period of time and that the FIR was lodged.

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7. Before the police, the victim stated that although she does not remember the date but she said that one day she went to the shop to buy something and found the appellant standing nearby and that the appellant spoke to her and invited her to have sex to which she declined. She stated that on the next day when she again went to the shop near the school, she met the appellant again who however did not speak to her. She again stated that on the next day when she went out during the lunch break and met the appellant who gave her Rs. 20/- and on being back, her friends asked her as to who that person was, to which she replied that he was her maternal uncle. She also stated that after the school hours, the appellant again met her and told her to come near the shop on the next day to which she did not reply but on the next day i.e. 19.07.2016 during the lunch break, she went to the shop and on seeing her, the appellant waived at her and that the appellant took her to an empty house nearby and touched her

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private parts and after taking off her clothes the appellant by laying her down on the bed, committed sexual relationship with her and that thereafter, he gave her Rs. 100/-. She also stated that the appellant met her again two days thereafter, and told her that he would give her money as and when she asks for the same and that she asks money and the appellant gives her. She thereafter stated before the police that on 28.07.2016, during the lunch break, she and the appellant agreed that they would meet on the next day and that on 29.07.2016, they went to a specified place from where the appellant took her near L.M. School Garden, and had sexual relationship with her and that thereafter the appellant gave her Rs. 500/- and asked her to meet him again on the next day to which she declined. She also stated that the appellant wanted to have sex with her even after the second incident but she refused and when the caretakers at the Shelter Home, on doubts, questioned her, she divulged the entire incident.

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8. It is also a settled position of law that in case the statement of the victim is found unreliable and does not inspire confidence of the Court, the necessary corroborations to the said statements have to be found out. As such the brief statements of other witnesses are mentioned here in below.

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9. PW -1 is the complainant in the instant case and he stated that on 07.09.2016, a case worker from the Champhai Shelter Home and the victim appeared before him and reported that the victim was sexually assaulted on two occasions i.e. on 22.07.2019 and 29.07.2016 by the appellant and on receiving the said information, he went and lodged the FIR. He also stated that the said case worker told him that the incident came to light when it was noticed that the victim girl used to go out of the Shelter Home much earlier than co–inmates to the church and that sensing the unusual behavior of the victim girl, the co–worker asked her, to which the victim girl replied that she used to get money after having sex with a person who she claims of not knowing him but then she identified him at his residence when the case worker as well as the Superintendent of the Shelter Home went to the same as stated by the victim. In his cross examination, this witness reiterated that he had simply lodged the FIR on being informed by the case worker and that he has no personal knowledge about the incident.

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10. PW-2 is one of the case worker in the Shelter Home Champhai and she stated that on 30.08.2016, when the school was over, the victim was found missing inside the Shelter Home and that they proceeded to the church in search of the victim but she was not found there and that they

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returned to the Shelter Home and then after sometime the victim returned home alone and on being asked as to where the victim was, the victim replied that she visited her uncle’s home. This witness also stated that they always find the victim with sufficient money to purchase whatever she likes and they suspected as to where she was getting the money and when she and other inmates of the Shelter Home forced her into answering as to where she gets the money, the victim narrated the entire incident. This witness stated that the victim divulged that her so called maternal uncle gives her money and took her to one empty house and raped her and the same was describe as the first incident and that subsequently the maternal uncle again took her to some other place and had sexual relationship with her. On being revealed this witness went and informed the matter to the Superior Officer, for necessary action. During the cross examination, she stated that the victim was sexually molested even before the instant incident and that she accompanied the Chairman of the CWC in submitting the F.I.R. She also stated that the said incident was stated to have occurred on 22.07.2016, and that there are some discrepancy about the date of the occurrence.

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11. PW Nos. 3, 4, 5, 6, 7, 8 are the students of the school where the

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victim studied. PW – 3 stated that as per her knowledge the victim and appellant knew each other and that victim keeps enough money to purchase items and whenever she asked the source of the said money, the victim replied that she got it from her maternal uncle. PW – 4 made similar statement before the Trial Court and further stated that she heard from other student that one day the victim entered in the class room with an unbutton shirt and that she has a boyfriend. PW – 5 deposed that the victim and the appellant used to meet each other during lunch break and that the victim used to go to the residence of the appellant and that the victim returns to the schools late in the in the second half. This witness further stated that she met the so called maternal uncle of the victim and that she told the victim that the said person seems to be a bad person to which the victim replied in the negative that the person was a good one and also saw the victim taking money from the appellant. During the re– examination of this witness she stated that she had never seen the victim entering the house of the appellant. PW – 6 stated that she saw the victim asking for money from the appellant and the appellant giving her the same. She too made similar statements that one day the victim came with an unbutton shirt into the class room and when she enquired about the same, the victim replied that she has a boyfriend. PW – 7 deposed before the Trial

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Court that the appellant and the victim meets each other during the lunch break of the school and that the victim goes to the residence of the appellant during the said lunch break where she stays for long and returns to school very late. She also submitted that the victim had enough money with her and when she asked the source of the said money, the victim replied that she gets it from her maternal uncle as stated to other witnesses and that she also had seen the victim taking money from the appellant. In her re-examination, this witness stated that she never saw the victim entering the house of the appellant because the house of the appellant was out of sight. This witness also stated about the unbuttoned shirt and the resultant reply. PW – 8 had also made a similar statement as that of the other witnesses/students and further stated that one day the victim told her and others that she had a boyfriend and disclosed his name but she forgot the name. This witness found the activities of the victim very suspicious.

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12. PW-7 is the Inspector of Police who stated that the initial part of the investigation was taken up by another Inspector who was transferred to another police station. This witness stated that the investigation revealed that on 19.07.2016, the appellant called the victim to a house and raped

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inside the same. He stated that the victim revealed during investigation that the appellant gave her money and that on 29.07.2016, the second incident took place. He, after completion of the investigation, submitted chargesheet against the appellant.

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These are the prosecution witnesses examined in the present case. Thereafter, the appellant was examined under Section 313 of the Cr.PC, to which he simply denied all the circumstances that were put to him, however, he adduced defense witnesses 5 (five) in numbers.

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13. DW-1 stated that on 29.07.2016, the appellant called him and enquired as to when he would be delivering the sand, to which this witness replied to deliver it in the next morning and that on the next morning the appellant delivered the sand. This witness also stated that earlier on 22.07.2016, he had requested to deliver sand and to substantiate this statement, this witness had produced documents. In his cross – examination he stated that on 22.07.2016, the appellant gave delivery of the sand in the afternoon and that on 30.07.2016, the appellant delivered sand in the morning.

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14 . DW-2 stated that he and the appellant on 22.07.2016, went to

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Zokhawthar, to get sand and that they returned with the sand and delivered

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to Kanan village at night. He, during cross – examination had reiterated that on 22.07.2016, he and the appellant spend the whole day at Zokhawthar.

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15. DW-3 stated that on 22.07.2016, the appellant came to Zokhawthar with a truck loaded with sand and that again on 29.07.2016, he came with the same materials in the morning and that on the said day the truck got stuck in a muddy road and that with the help of another vehicle the appellant’s vehicle was taken from the muddy road and during the said occurrence one of their friend was also present.

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16. DW-4 stated that the appellant was at Zokhawthar on 29.07.2016 and

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that when the appellant was about to return at 1 p.m in the afternoon on the said day, his vehicle got stuck in the mud and the said vehicle was taken out of the mud by taking help of other vehicle and that since it got late the appellant had dinner in the home of one of his friend and then he left.

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17. DW-5 stated before the Trial Court that he was with the appellant on

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29.07.2016 procuring sand at Zokhawthar and that he left for home after

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12 o’clock but then he was informed by the appellant that his vehicle got

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stuck in the mud and that he came back and got his vehicle out of the mud. This witness stated that he took the appellant to his house and made him have the dinner and that after dinner the accused left for his home which is after 10 o’clock at night.

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18. DW-6 is the appellant himself and he stated before the Trial Court that he is always busy with his work and that the allegations against him was totally false. He stated that the victim is a trouble person and that once police had to search her since she left her home. He stated that on 22.07.2016, he was hired on commission for carrying sand from Zokhawthar, and that therefore he went to Zokhawthar. He stated that despite being accused of committing a crime on 29.07.2016, he left for Zokhawthar to collect sand for construction of road. He further stated that after loading sand on his vehicle, his vehicle got stuck in the mud and with the help of others, the vehicle was taken out and that in the process, it got late and that he had dinner at the house of DW-5 and he headed home at around 10 p.m. During his cross-examination he denied of giving money to the victim and even denied knowing her.

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19. The Doctor who examined the victim deposed as court witness No. 1 and she found no marks of sexual intercourse in the victim and she stated that hymen of the victim was not intact but no fresh injury was found in the hymen. The doctor asked the victim about the incident and the victim said that the appellant gave her Rs. 20/- for the first time and that he raped her also for the second occasion and gave her Rs. 500/-. There is another witness which was called by the Court as Court witness No. 2 and she stated that the victim after the incident has been restored to her family as per the Juvenile Justice Act and that she exhibited the birth certificate of the victim.

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These are the witnesses examined in the above case.

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SUBMISSIONS

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20. Mr. C. Tlanthianghlima, learned counsel appearing for the appellant submits that the statement of the victim was not consistent at all in as much as she was not even sure of the date of the incident as to whether it was on 19.07.2016 or 22.07.2016 as far as the first incident is concerned. He also submits that there are contradictions in the statement of the victim before different authorities i.e. the Police, the Magistrate as well as before

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the Trial Court. He also submits that while examining the victim who was 12

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years of age and 13 years of age during her examination before the Trial

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Court, no preliminary questions to judge her capacity to understand, were put as required under the law. The learned counsel appearing for the appellant also submitted that the plea of alibi taken by the appellant, which was substantiated by the defense witnesses, was not appreciated by the Trial Court and he also states that Section 233 of the Cr.PC was not followed. The learned counsel also took the ground on non-examination of the Investigating Officer although the subsequent Investigating Officer, who

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submitted the charge sheet was examined. To substantiate his argument he placed reliance of the following judgments:-

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Rai Sandeep Vs. State reported in (2012) 8 SCC 21 by which

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the Hon’ble Supreme Court had elaborated as to under what conditions and on fulfilling of what requirements, a witness or the prosecutrix could become sterling witness, on the basis of which conviction can be granted.

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2) Santosh Prasad @ Santosh Kumar Vs. State of Bihar

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reported on (2020) 3 SCC 443 by which the Hon’ble Apex Court

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observed that discrepancy in the statement of the prosecutrix cannot make her the sterling witness and on the basis of the same, conviction cannot be granted.

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Sh. Lalramthanga Vs. State of Mizoram reported in (2022)

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2 GLT 694 by which the Hon’ble Gauhati High Court had observed that in respect of a child witness, a scrutiny has to be made with regard to her intelligence and her capacity to understand the facts in question.

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Mrinaldas Vs. State of Assam reported in (2017) 5 GLT 626

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by which the Hon’ble Gauhati High court had deliberated as to under what conditions, the delay in lodging the FIR can be held to be fatal.

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Lalbiakliana Vs. State of Mizoram reported in (2022) 1 GLT

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625 by which the Hon’ble Gauhati High Court on noticing the discrepancy in the statement of the prosecutrix, gave benefit of doubt to the accused.

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Pradeep Vs. State of Haryana reported in (2023) 19 SCC

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221 by which the Hon’ble Supreme Court had observed that

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depending on the facts of a case, preliminary examination of the minor should be done before recording her deposition by the Trial Court.

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21. On the other hand, Mrs. Mary L. Khiangte, learned Addl. Public Prosecutor submitted before this Court that the contention with regard to the preliminary questions not been put to the victim, the same would not be fatal as has been held by the Hon’ble Apex Court and that the same depends on the facts and circumstances of the case. She stated it is not a mandatory requirement to put preliminary questions to the victim and if the Trial Judge was of the opinion that the victim has the capacity to understand the facts, the said Trial Judge can carry on with the examination and she also stated by the time the victim was examined before the Trial Court, she was 13 years of age. She thereafter, submitted that the classmates of the victim being arrayed as PW-3 to PW-8 had pin pointed that the appellant was the one with whom the victim had the relationship and as such, the identity of the appellant being the perpetrator of the crime cannot be doubted. She further stated that the victim had faced similar situation even before the present incident and the same shows her mental status and that the victim was lured into the incident by

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the appellant. She further stated that the statement of the Doctor also corroborates the fact that the victim was raped. As such, the learned Addl. Public Prosecutor submits that the foundational facts with regard to the offence in question committed by the appellant upon the victim has been established by the prosecution and that the reverse burden lies on the respondent to rebut the said allegation.

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22. Mr. H. Zodinsanga, learned Amicus Curiae appearing for respondent No. 2 i.e. the mother of the victim stated that the victim had deposed same facts as to the core spectrum of the offence to all the authorities and in her cross-examination she had reiterated the said statements and that the said facts narrated by the victim was not demolished by any extent whatsoever. He relied on the submissions made by the Addl. Public Prosecutor and had placed reliance on the Judgment delivered by the Hon’ble Apex Court in Lok Mal Vs. State of UP reported in (2025) 4 SCC 470 by which the Hon’ble Apex Court had observed that the evidence of the prosecutrix is of the same value as that of an injured witness and her testimony can be solely relied in convicting the accused person.

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23. On the aforesaid facts and submissions of the learned counsels for all

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the parties, this Court is now called upon to adjudicate as to the legality of the Judgment and Order passed by the Special Court (POCSO) as well as to find out as to whether under the facts of the present case and by applying the law there under, the conviction of appellant can be maintained or not.

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ANALYSIS

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24. It is a settled position of law that in case involving sexual offence, the testimony of the prosecutrix can be solely relied upon, in case her testimony is consistent right from the beginning i.e. her statement before the police to her statement before the Trial Court and which inspires the confidence of the Court. In POCSO cases, the victim’s testimony is pivotal and the same can be treated as of sterling nature unless there are reasons to doubt its credibility. The statement of the prosecutrix is deemed vital only because of the fact that sexual offence occurs in a private sitting, leaving little room for any corroborative evidence. The Apex Court has consistently held that the victim’s testimony if found credible and reliable is sufficient to bring home the guilt of the accused person without any further corroboration.

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25. One of the leading case amongst others in respect of the said

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position of law is Rai Sandeep @ Deepu Vs. State of NCT of Delhi

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(Supra) and the observation made by the Apex Court therein are reproduced herein below:-

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"15. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more

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precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."

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26. It is apparent from the above decision that status of the witness is immaterial and what should be seen is that the truthfulness of the statement of the victim. It is also reflected that the statement of the victim has to be considered from the starting point till the end i.e. at the time when the witness makes the initial statement and ultimately before the Court and that it should be natural and consistent with the case of the prosecution qua the accused.

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27. In the instant case by applying the analogy provided for by the apex Court, it is noticed that the victim in her initial statement before the police stated that when she and her friends were at the waiting shed near the school, she, leaving her friends, went alone to the shop to buy some items and the appellant who was standing near the shop, spoke to her and invited her to have sex to which she denied and that on the next day during the lunch break, she again went to the shop to buy items and that she again met the appellant and that she did not talk to him and that she

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did not find him when she came back from the shop. She also stated that

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on the next day, she again went out during the lunch break and on the way she met the appellant who gave her Rs. 20/- and that after school hours she again met him on the way home and that the appellant told her to come near the shop again the next day and that on the next day i.e. 19.07.2016 during lunch break, the victim went to the shop where the appellant was already present and who waived at her and that the appellant took her to an empty house and raped her.

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28. In her statement before the Magistrate under Section 164 of the

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Cr.PC, she stated that during lunch hour she went to buy some stuffs at a nearby shop and that the appellant told her something which was not pleasant and that the appellant gave her Rs. 20/- and told her to meet her near the shop and since the victim had already taken money from him, she could not say no and that she went on the next day near the shop. From there, the appellant took her to the empty house and raped her. The victim stated that the said incident took place on 19.07.2016.

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29. Before the Trial Court, the victim stated that she saw the appellant

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for the first time when she was on her way back to home from her school

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and that one day while she and her friends were sitting in the shed near the school, the appellant came to her and in front of her friends, invited her to have sex with him and that one another day she went to the shop to buy some items and at that juncture, the appellant waived at her and that she went near him and she was taken to the empty house and she was raped and she further stated that the said incident had occurred on 22.07.2016.

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30. During her cross-examination before the Trial Court, the victim stated that the incident of rape had occurred on 22.07.2016 and that she clarified that the date stated in the FIR as 19.07.2016 was wrong.

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31. It is noticed that the statements made by the prosecutrix before the authorities are inconsistent. The Hon'ble Apex Court in the said judgment of

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Rai Sandeep @ Deepu Vs. State of NCT of Delhi (Supra) had further observed that the victim should be in a position to withstand the cross examination of any length and however strenuous it may be and under no circumstance should give room for any doubt as to the factum of occurrence, the person involved as well as the sequence of it and the said version should consistently match with the version of every other witness.

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32. It is noticed that as far as the core spectrum of the first incident is

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concerned, the same appears consistent in as much as the victim stated before all the authorities that she went with him and the appellant took her to one empty house below the school and on entering the same, the appellant forced her to lie on the bed and by removing her clothes, the appellant had sexual intercourse with her and that the said act was for a short duration and that the victim was given Rs. 20. The only discrepancy is the date on which the incident took place. In the FIR, it was written as 19.07.2016 as well as in her statement before the police and also in her statement before the Magistrate.

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33. As far as the second incident is concerned i.e. on 29.07.2016, there again appear some contradictions. Before the police she stated that on 28.07.2016 during the lunch break, she and the appellant agreed that they would meet the next day and that on 29.07.2016, the victim went to the agreed specified place from where the appellant took her to some other place and they had sexual relationship on the said day. She also stated that the appellant gave her Rs. 500/- and asked her to meet him again.

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34. Before the Magistrate, the victim stated that the appellant called her after school on 29.07.2016 and took her to a different area where he had

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sexual relationship with her and that he gave her Rs. 500/-.

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35. Before the Trial Court, the victim stated that on 29.07.2016 during the lunch break, she and the appellant went to a particular place and that the appellant had sexual intercourse with her and further that she did not resist since the appellant used to give her money.

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36. It is noticed that there are discrepancies to the effect that before the police she did not say at what time she went with the appellant to the particular place on 29.07.2016 whereas, before the Magistrate she said that it was after the school and before the Trial Court, she said it was during the lunch break.

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37. There appear contradictions also in respect of the sequence she narrated after the second incident. Before the police she said that the appellant asked her to meet him again the next day to which the victim declined. She thereafter stated that due to the school break she did not see

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him for a while and that one day she went near his house and asked him Rs. 10/- at which the appellant again invited her to have sex to which she declined. Before the Magistrate, the victim stated that the appellant invited her even after 29.07.2016 but she refused. In her statement before the

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Trial Court, that after the second incident, a clandestine sexual relationship had established between them although she was not willing as such but then she said she was compelled since she needed money for her own expenses.

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38. A bare perusal of the aforesaid inconsistencies shows that the sequences of the events were not stated properly and were not consistent with each other. There is also a further requirement that the victim’s version should matched with the version of other witnesses. In this context, it be stated that there are no other evidence with respect to the incidents which happened on two occasions i.e. on 19.07.2016/22.07.2016 and 29.07.2016.

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39. In the instant case, PW-1 was the informant and he lodged the ejahar on the basis of the statements made by the victim, who stated that the incident occurred on the aforesaid two dates. PW-2 who was the case worker in the Shelter Home was also not aware of the two incidents. She was apprised of, by the victim that the same had taken place and it be stated here that the victim has stated about the incidents much after the alleged offence. The friends of the victim, who were examined as PW-3 to PW-8 had simply stated that they had seen the victim going to the house of

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the appellant during the lunch hours and had stated that the victim used to

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get money from the appellant, whom the victim addressed as maternal uncle and also that the victim had a boyfriend. A bare perusal of the aforesaid statements of the other witnesses shows no corroboration to the evidence of the victim as far as the incidents on the said two occasions are concerned.

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40. The further observation of the Apex Court is that only if the version of such a victim qualify the test of reliability, it can be held that such a witness is a sterling witness, whose statement can be accepted by the Court without any corroboration and based on which, the guilty can by punished. It is noticed in the facts of the present case that the victim cannot, in the opinion of this Court, be termed as a sterling witness whose version can be accepted by the Court. It is further held by the Apex Court that not only the core spectrum of the crime should remain intact in her statement before the authorities but also that the other attendant materials mainly oral, documentary and material objects should also matched the said version in material particulars.

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41. The Hon'ble Supreme Court in yet another decision of Nirmal

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Page No.# 30/34

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Premkumar & Another Vs. State Represented by Inspector of

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Police reported in (2024) 3 SCALE 632 has held further in the following

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terms:-

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"15. What flows from the aforesaid decisions is that in cases where witnesses neither wholly reliable nor wholly unreliable, the Court should strive to find the true genesis of the incident. The Court can rely on the victim as sterling witness without further corroboration but the quality and credibility must be exceptionally high. The statement of the prosecutrix ought to be consistent from the beginning to the end (minor inconsistencies excepted), from the initial statement to the oral testimony, without creating any doubt qua the prosecution case. While a victim's testimony is usually enough for sexual offence cases, an unreliable or insufficient account from the prosecutrix, marked by identified flaws and gaps, could make it difficult for a conviction to be recorded."

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42. It is therefore apparent from the aforesaid judgment that the quality

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and credibility of the victim's statement must be exceptionally high to rely upon the same and inflict conviction. In the instant case, it is seen that the statement of the prosecutrix does not reach to that extent. Since there are many discrepancies in the sequence of the incident as narrated by the victim, although, the core spectrum of the incident is consistent, the same cannot be relied upon.

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43. Further it is writ large in the facts of the instant case that the victim

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never revealed the incident during the relevant point of time. It was only when the inmates of the Shelter Home saw her unusual behaviour along with the money she carries with herself, the incident came to light. On repeated questioning by the inmates of the Shelter Home, the victim divulged the alleged incidents which according to her took place on 22.07.2016 and 29.07.2016. It is also seen in the evidence of the defence witnesses that the appellant was doing his business on 22.07.2016 and 29.07.2016 and was not at the place of occurrence. It will not be out of context to mention herein that it is a settled position of law that defence witnesses are not to be treated as inferior and their evidence must be judged on the same parameters of reliability, corroboration and consistency as applied to prosecution witnesses. Such observation made by the Apex Court in Dudh Nath Pandey Vs. State of UP reported in (1981) 2 SCC 166 is reproduced below:

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"19. .............We do not want to attribute motives to them merely because they were examined by the defence. Defence witnesses are entitled to equal treatment with those of the prosecution. And, Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses."

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44. There is yet another flaw which is noticed in the instant case in

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respect the appellant entering into his defence. Section 233 of the Cr.PC provides that when the accused is not acquitted under Section 232, he shall be called upon to enter on his own defence and adduce any evidence in his support. It is noticed in the instant case that during examination of the appellant under Section 313 of the Cr.PC, no questions was put to him, asking him as to what his defence is and as to whether he would adduce any evidence although, it is seen that defence witnesses were produced and the appellant was himself a defence witness. It be stated here that even if defence witnesses were produced but the violation of Section 233 CrPC is apparent.

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45. Thus, inconsistency in the testimony of the victim, failure on the part of the prosecution witness including the victim to tell the exact date or day of the occurrence, inordinate delay in lodging the FIR without any explanation and coming into light, the incident only when the case worker and others of the Shelter Home saw unusual behaviour of the victim and the resultant FIR, cast a serious doubt on the prosecution story. The accused cannot be convicted on the sole testimony of the victim which is found to be inconsistent. It is noticed that prosecution evidence is grossly inadequate to bring home the charge against the accused beyond

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reasonable doubt and therefore the accused/appellant at least ought to have been given the benefit of doubt in the instant case. The cardinal principle of Administration of Criminal Justice that prosecution has to prove the guilt beyond reasonable doubt equally applies in case of sexual offence. The prosecution evidence having been found inadequate to bring home the guilt of the appellant beyond reasonable doubt, the conviction and sentence of the appellant is not sustainable.

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CONCLUSION

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46. It is as such concluded that the statements of the victim which were seen to be inconsistent except the core status, the same cannot be believed as it did not inspire the confidence of the Court.

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47. In view of the above discussion, the impugned Judgment dated 07.09.2022 and the Sentence order dated 12.09.2022 passed by the learned Special Judge POCSO Act, Champhai Judicial District, Mizoram convicting the appellant for the offence under Section 6 of the POCSO Act and imposing the punishment of rigorous imprisonment for 10 (ten) years with fine and default stipulation, is hereby set aside and quashed.

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48. The appeal is allowed. The appellant shall be set at liberty forthwith

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unless required to be in custody in connection with any other case.

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49. In appreciation to the services rendered by the learned Amicus Curiae, Mr. H. Zodinsanga for respondent No. 2, his requisite fees to be

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paid by the State Legal Services Authority as per the existing rates.

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50 . Accordingly, the criminal appeal stands disposed of.