Shri. Tibet Assumi Vs the State of Nagaland and Anr.

-----------Advocate for the appellant : Mr. A. Zho, Sr. Adv. Advocate for the respondent : Mr. V. Zhimomi, P.P Advocate for the respondent No.2 : Mr. N. Mozhui, Amicus Curiae.

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BEFORE

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HON'BLE MR. JUSTICE PRANJAL DAS

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Date on which judgment is reserved : 19.06.2026 Date of pronouncement of judgment : 16.07.2026 Whether the pronouncement is of the : No. operative part of the judgment ?

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Whether the full judgment has been : Yes pronounced?

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JUDGMENT & ORDER (CAV)

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Date : 16-07-2026 ( Pranjal Das, J )tra

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Heard Mr. A. Zho, learned Sr. counsel assisted by Mr. B. Soto, learned counsel for the appellant. Also heard Mr. V. Zhimomi, learned Public Prosecutor for the State, Nagaland and Mr. N. Mozhui, learned Amicus Curiae for the respondent No. 2.

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2. The convict appellant, namely Tibet Assumi , has preferred this criminal appeal aggrieved by judgment and order dated 26-07-2018, passed by the learned Sessions Judge, Zunheboto, Nagaland, in Sessions Case No. 12/2017 (arising out of Zbto/PS/FIR No. 21 of 2017), whereby the appellant was convicted under

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section 363/376(2)(i)/506IPC, r/w section 4 of the POCSO Act, 2012. For such conviction, the appellant has been sentenced to undergo rigorous imprisonment for 10(ten) years and a fine of Rs. 10,000, in default, undergo 3(three) months R.I. He has been given the benefit of set-off. The victim has also been granted a compensation of Rs. 1 lakh under section 357Cr.P.C. and Nagaland Victim Compensation Scheme, 2012.

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3. The prosecution case in brief is that on 22-06-2017, a complaint was lodged before the Zunheboto police station by the informant with allegations that the appellant raped the prosecutrix on 21-06-2018. Allegations of kidnapping from lawful guardianship and criminal intimidation were also made against the accused. The complaint was registered into Zunheboto P.S. Case No. 21 of 2017 under Section 363/506/376(2) IPC. The case was investigated. Upon completion of investigation, charge-sheet was submitted against the appellant under section 363/506/376(2)(i) IPC and section 4 of the POCSO Act, 2012. Subsequently, vide order dated 12-10-2017, the learned Special Judge-cum-Sessions Judge, Zunheboto framed charges against the accused appellant under section 363/506/376(2)(i) IPC and section 4 of the POCSO Act. The charges upon being denied by the accused led to commencement of the trial. During the trial, the prosecution examined nine witnesses including the I/O, MO, victim and her parents.

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4. After completion of prosecution evidence, the appellant as accused was examined under section 313Cr.P.C. Subsequently, he was called upon to adduce evidence but the defence did not adduce any evidence. After completion of trial, the appellant as accused was convicted and sentenced as narrated above.Hence, this appeal.

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5. Amongst the penal provisions under which the appellant has been convicted

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and sentenced is section 4 of the POCSO Act, which may be reproduced herein below –

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Punishment for penetrative sexual assault.- (1) Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than [ten years] but which may extend to imprisonment for life, and shall also be liable to fine.

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(2) Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine.

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(3) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.

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6. Thus, I find that as far as sentencing is concerned, section 4 has two limbs, being section 4(1) under which the convict is liable to be sentenced for not less than 10 years and which may extend to life imprisonment and he shall also be liable to fine. The second limb, being in section 4(2) applies to a case where the victim child is below 16 years and, in that case, the convict will be liable to imprisonment not less than 20 years but which may extend to life imprisonment without remission and he shall also be liable to fine.

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7. While convicting and sentencing the appellant under section 4 of the POCSO Act, the learned trial court has not indicated as to under which sub-section or limb

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of section 4 of the POCSO Act, the appellant has been convicted and sentenced.But going by the fact that the appellant has been sentenced to 10 years imprisonment, it implies that the conviction and sentence has been under the first limb of section 4 of the POCSO Act, i.e. section 4(1) of the POCSO Act.

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8. Upon perusing the judgment, this appellate court did not find any specific determination made by the learned trial court that the child was not less than 16 years so as to attract the provisions of section 4 (1), rather than the provisions of section 4 (2) of the POCSO Act.

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9. On this point, the learned senior counsel submits that the age of the victim has not been cogently proved during the trial. He refers to the testimony of the parents of the victim being PW1, her fatherand PW5, her mother. Upon perusing the said testimony, I do find that the parents have not testified and made any statement about the age of the victim their daughter.

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10. The learned senior counsel has also contended that though the birth certificate of the victim has been exhibited as Exhibit-P1, but it is only a photocopy and further submits that from the testimony of the I/O as PW-8, it is not revealed that he seized any birth certificate during the investigation.

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11. The learned Additional Public Prosecutor on behalf of the prosecution contends that the testimony of the prosecutrix in the instant case fulfils the criteria of a stunning witness and further submits that considering the tender years of a girl, she had her own way of referring to the private parts and the bad act of the appellant. It is submitted that the birth certificate was issued duly by the authority. The prosecution submits that there is no scope for interference with the impugned judgment and order.

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12. On the other hand, the learned Amicus Curiae for the informant submits that

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the evidence of the prosecution including the victim girl is consistent and the testimony of the victim clearly shows that the offence has been committed. Supporting the prosecution in this regard, the learned Amicus Curiae also contends that there is no scope for interference with the impugned judgment of the appellant.

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13. I find from the evidence that the birth certificate Exhibit-P1 was proved and exhibited by PW1, the father of the prosecutrix. But from the perusal of the said birth certificate, it is not clear as to whether it was proved in original.

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14. Despite the aforesaid contentions of the learned senior counsel appearing for the appellate regarding the age of the prosecutrix – this Court upon perusing the evidence adduced during the trial find the following materials regarding the age of the victim girl.

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14.1. The victim girl adduced evidence as PW3 during the trial and in her examination-in-chief, she stated that she was a student of Class IV at Cornerstone School and she is about 10 years old.The deposition was taken on 6-12-2017. The date of the incident is stated to be 21-06-2017. I find that the victim as PW3 was not cross-examined by the defence and that her cross-examination was declined.Therefore, the aforesaid testimony of the victim as PW3 that she was a student of Class IV, aged about 10 years remains unrebutted.

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14.2. During the investigation, her statement was recorded before the learned Judicial Magistrate and in the said statement, she has indicated her age as 9 years and stated that she was studying in class IV at that time.The statement was recorded on 30-06-2017.In the said statement, the victim girl has indicated her age as 9 years at the time of recording her statement and stated that she was studying in class IV.

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14.3. Dr. Nitovi Shikhu, the medical officer who examined the victim girl after the incident, adduced evidence as PW9 in which he stated that on 21-062017, he examined the victim girl. In his examination-in-chief, he stated the victim girl to be aged 9 years and in cross-examination he again indicated the child to be aged 9 years while mentioning the injuries found on her private parts. As part of his deposition, PW9 exhibited as Exhibit- P4, the medical reportand his signature thereon as Exhibit- P4(b).

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14.4. In the medical report exhibited as Exhibit- P4, I find that the age of the victim girl is mentioned as 9 years. Even against column No. 5 of the medical report, the victim is again mentioned as 9 years old.

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14.5. As regards the birth certificate, the same indicates her date of birth as 12-072007 and going by the date of occurrence on 21-06-2017, her age at the time of the incident would be about 9 years.

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15. As discussed earlier, the learned Senior counsel submitted about infirmities in the birth certificate by contending that the same is a photocopy and that it is not revealed from the testimony of the I/O that he seized the birth certificate during investigation. The seized birth certificate is exhibited as Exhibit- P1 by a father of the prosecutrix who adduced evidence as PW1. However, as already stated above, from the birth certificate it is not clear as to whether it was proved in origin.

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16. Even if the birth certificate is overlooked, the other evidence regarding the age of the victim girl, especially, her unrebutted testimony during the trial as PW3 cannot be overlooked. On the basis of the said evidence, it is quite clear that the victim girl at the time of the incident was aged below 16(sixteen) years and therefore, if the accused was found guilty of penetrative sexual assault under Section 4 of the POCSO Act, then the said offence would have fallen in the second limb defined by Section 4(2) of the POCSO Act, wherein the

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minimum sentence is 20(twenty) years imprisonment.

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17. Thus, I find that though there were cogent evidence on record about the victim girl being aged below 16 years at the time of the incident, the learned trial court omitted to specify the conviction as under Section 4(2) and to impose the minimum sentence of 20(twenty) years imprisonment stipulated under the said Section 4(2) of the POCSO Act.

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18. Upon such determination, clearly there is an error in the sentencing for which the matter has to be remanded back to the learned trial court for a fresh sentencing in terms of appropriate provisions of law.

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19. Accordingly, the impugned judgment and order dated 26-07-2017 passed by the learned Sessions Judge, Zunheboto, Nagaland, in Sessions Case No. 12/2017 (arising out of Zbto/PS/FIR No. 21 of 2017) is hereby set aside. The case is remanded back to the court of the learned Sessions Judge, Zunheboto for fresh order on sentencing under appropriate provisions of the POCSO Act {i.e. Section 4 (2) of the Act} after giving due opportunity to the convict.

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20. It is made clear that the matter has been remanded only for a fresh order on sentencing and after conducting that exercise, the sessions case shall be disposed of, while informing the convict about his right of appeal.

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21. The criminal appeal stands disposed of on the aforesaid terms.

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22. Returned back the original TCR to the learned trial court.

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JUDGE

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Comparing Assistant

Shri. Tibet Assumi v. the State of Nagaland and Anr.

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Shri. Tibet Assumi v. the State of Nagaland and Anr.

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