JUDGMENT T. Vaiphei 1. Heard Mr. P.C. Prusty, the learned Amicus Curiae and also heard Mr. Lalsawirema, the learned Addl. PP appearing for the State of Mizoram. This criminal jail appeal is directed against the judgment and order dated 04.02.2011 passed by the Addl. District & Sessions Judge-I, Aizawl Judicial District, Aizawl in Crl. Tr. No. 1434/2006 arising out of Aizawl PS Case No. 398/2006 under Section 376(2)(f)/511 IPC convicting the appellant under Section 376(2)(f) IPC and sentencing him to rigorous imprisonment for five years with a fine of Rs. 500/- and, in default thereof to undergo a simple imprisonment of one month. 2. The story of the prosecution is that on 07.11.2006 between 3:50-4:30 PM, one Liannghilhlova, Bungkawn, Dam Veng, Aizawl, father of the victim, reported that his eight years old daughter, namely, Ms Lalrinawmi, who had gone to school to attend her class at Lalmalsawma Memorial School, was forcibly taken by a stranger somewhere between Khatla and New Capital Complex, Aizawl while returning home and tried to rape her at a vacant place, and his daughter managed to escape from him, but he did not know to what length the stranger had molested her daughter. On the basis of the complaint lodged by the informant, the police registered a regular case i.e. Aizawl PS Case No. 398/2006 under Section 341/376(2)(f)/511 IPC and duly investigated into the case. On completion of the investigation, the police having found a prima facie case against the appellant under Section 341/376(2)(f)/511 IPC, submitted a charge-sheet before the trial court for trial. On the basis of the charge-sheet so filed, the trial court framed the charge against the appellant under Section 376(2)(f) IPC to which he pleaded not guilty and claimed to be tried. 3. In the course of trial, the prosecution examined 20 witnesses while the appellant examined 9 witnesses to substantiate their respective cases. The appellant was also examined under Section 313 CrPC. At the conclusion of the trial, the trial court found him guilty of the offence charged against him and passed the impugned judgment of conviction and sentence. Mr. 3. In the course of trial, the prosecution examined 20 witnesses while the appellant examined 9 witnesses to substantiate their respective cases. The appellant was also examined under Section 313 CrPC. At the conclusion of the trial, the trial court found him guilty of the offence charged against him and passed the impugned judgment of conviction and sentence. Mr. P.C. Prusty, the learned Amicus Curiae at the outset submits that on the basis of the statement of the witnesses adduced on behalf of the appellant i.e. DW6, the appellant has successfully established a case of alibi proving that the appellant was nowhere near the place of occurrence at the time of the incident but was at his house and, as such, a reasonable degree of doubt is created on the case of the prosecution: the appellant is thus entitled the benefit of doubt. He also relies on the decision of the Apex Court in the State of Haryana v. Sher Singh, AIR 1981 SC 1021 and Gurcharan Singh v. State of Punjab, AIR 1956 SC 460 in support of his various contentions. On the other hand, Mr. Lalsawirema, the learned Addl. PP, defends the impugned judgment of conviction and submits that the testimony of the victim girl, which is otherwise cogent, reliable and is consistent throughout, is sufficient to sustain the conviction of the appellant: no interference is called for. On the plea of alibi set up by the appellant, the learned Addl. PP contends that such a plea was never raised by the appellant in his cross-examination for the first time only when he adduced the defence evidence thereby demonstrating that the plea was an afterthought and, therefore, cannot destroy the core of the prosecution case According to the learned Addl. PP, as the defence witnesses have themselves categorically stated that their testimonies are afterthoughts, such testimonies cannot create doubt in the otherwise credible prosecution case. He finally contends that there was no adequate or sufficient reason before the trial court to impose the sentence lesser than the minimum sentence of ten years or more stipulated by Section 376(2)(f) IPC and, as such, the sentence should be enhanced to the minimum statutory requirement. The learned Addl. He finally contends that there was no adequate or sufficient reason before the trial court to impose the sentence lesser than the minimum sentence of ten years or more stipulated by Section 376(2)(f) IPC and, as such, the sentence should be enhanced to the minimum statutory requirement. The learned Addl. PP places strong reliance upon the decision of the Apex Court in Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 SC 147 and the State of Himachal Pradesh v. Gian Chand, (2001)6 SCC 71 to fortify his submissions. 4. In convicting the appellant, the trial court relies on the evidence of PW1, who is the father of the victim girl, PW 13 and PW 19, the victim girl. The victim girl, in her evidence, deposed that on 07.11.2006 between 3-4 PM, when she was on her way home, she met the appellant, who she had never seen before and that while approaching the dental clinic at Khatla, he approached her, asked her name and in which class she was studying. He also asked her to help him in searching his lost documents. According to her, she was at the beginning reluctant to follow him, but he finally persuaded her to follow him towards the direction of the New Capital Complex, Aizawl. She further deposed that on reaching the site of the field where non-Mizos were constructing a house, they found some bushes where he took her there, and as he walked ahead, he told her that it is a very pleasant place etc. and asked her to come and sit with him. She also deposed that the appellant then asked her to open her underwear, but she was scared to death as they were all alone and but ultimately obliged him. It is also her testimony that when she opened her underwear, he took her underwear and put it inside her school bag whereafter he asked her to lie down, opened his pant and thrust his penis inside her private part. According to her, she did not shout for help but she was screaming with pain and that he later on asked her to follow him and when they reached the road he told her to look for a taxi from one side while he went to the other side saying that he would look for the taxi from the other side and gave her Rs. 20/-. 20/-. She also testified that when she came home walking, she met her aunty (father's sister) on her way to him and was asked by her as to where she had gone and then she told her that one unknown person had sexual intercourse with her and that her mother and father also soon joined them. According to this witness, she went to the hospital straight from there and was medically examined on her private part by the hospital doctor and that her father after sometime lodged a complaint to the police station where her statement was also recorded by a lady Police Officer. 5. On reading and re-reading the testimony of PW 13, I do not find any discrepancy or inconsistency in her deposition, which, on the whole, is rather very natural and convincing. The cross-examination of this witness is hardly inspiring and does not in any way falsify her evidence in the examination-in-chief. The law is now well settled that the sole testimony of the prosecutrix can form the basis for conviction in a rape case if the evidence so tendered is otherwise trustworthy and reliable. That apart, the statement of the victim girl is corroborated in material particulars by the evidence of PW No. 1, who is her father, PW 2, the Judicial Magistrate, who conducted the TI parade, and testified that the appellant was duly identified by the victim girl, PW 3, the Medical Officer who examined the victim girl, who deposed that even though the hymen was intact, it was possible that there could be penetration depending on the size of what was used for penetration (like stick, etc.), PW 18, the sister of the father of the prosecutrix, who went to search for the victim girl on receipt of such request by SMS from the mother of the prosecutrix (PW 19) and eventually found her while coming up from the New Capital Complex and to whom she narrated the whole episode for the first time and PW 19, mother of the prosecutrix, who corroborated the said statement of PW 18. The cross-examination of the defence witnesses does not destroy the core of the prosecution story in any manner. The absence of violent marks on the private part of the prosecutrix is hardly significant when she never testified that she resisted the rape. The cross-examination of the defence witnesses does not destroy the core of the prosecution story in any manner. The absence of violent marks on the private part of the prosecutrix is hardly significant when she never testified that she resisted the rape. In her statement, the victim girl categorically stated that the appellant put his penis inside her private part and that though she did not shout for help she was screaming as it was paining. Interestingly, this part of the statement of the victim girl has not been denied or disputed by the defence in the cross-examination. Under Section 376(2)(f) IPC, a person who commits rape on a woman when she is under twelve years is punishable for a term which shall not be not less than ten years but which may be for life and shall also be liable to fine. Her consent is thus immaterial in the case of a woman who is under twelve years. Though in the FIR, the appellant was accused of an attempt to commit rape, the evidence brought on record clinchingly establishes that it is not a case of attempt to commit rape but is a statutory rape committed upon an underage, who was eight years old at the time of occurrence. Thus, the offence committed by the appellant comes within the purview of Section 376(2)(f) IPC, for which a minimum imprisonment is not less than 10 years but may extend to like and also with a fine. 6. It is, however, reiterated by Mr. Prusty, the learned Amicus Curiae that the medical evidence does not show that there was a mark of violence on the private part of the prosecutrix which falsified the case of rape set up by the prosecution. This submission of the learned Amicus Curiae is noted only to be summarily rejected for a simple reason that the law is now well settled if there is conflict between the statement of ocular witnesses and the medical evidence, the statements of ocular witnesses should be given weightage. Here is a case in which the prosecutrix in her evidence has proved to the hilt that rape was committed by the appellant upon her. In this view of the matter, any inconsistency found in the testimony of the expert witness like the Medical Officer cannot falsify the case of the prosecution. Here is a case in which the prosecutrix in her evidence has proved to the hilt that rape was committed by the appellant upon her. In this view of the matter, any inconsistency found in the testimony of the expert witness like the Medical Officer cannot falsify the case of the prosecution. In any case, the Medical Officer also did not rule out the possibility of hymen being intact even with penetration. 7. It is next contended by the learned Amicus Curiae that the evidence of DW 6 that the appellant was nowhere near the scene of crime when the alleged rape was committed and that he was confining himself at his home due to illness after returning home from his office at around 2 PM. It is the contention of the learned Amicus Curiae that as the incident took place between 3-4PM and as there was evidence to show from the testimony of DW 6 that the appellant was not at the scene of crime at the relevant time, the appellant cannot be implicated in the case. It is true that burden of proving alibi undoubtedly lies on the accused setting up the defence. The learned Addl. PP, however, refutes the contention of the learned Amicus Curiae by submitting that the plea of alibi set up by the appellant is an afterthought as evident from the fact that no foundation was laid by him to this effect in the cross-examination of the prosecution witnesses. I have carefully gone through the cross-examination of the prosecution witnesses and found that no such plea was indeed set up by the appellant in his cross-examination. The plea of alibi came to surface only at the time of cross-examination of defence witnesses. Under the circumstances, I find considerable force in the contention of the learned Addl. PP. Resultantly, I have no alternative but to conclude that the plea of alibi set up by the defence has no foundation whatsoever, but is merely an afterthought and cannot demolish the otherwise trustworthy evidence of the prosecution witnesses. In the view that I have taken, I am satisfied that the prosecution has established its case beyond reasonable doubt that the appellant is guilty of the offence punishable under Section 376(2)(f) IPC. Resultantly, I find no infirmity in the impugned judgment of conviction passed by the trial court. In the view that I have taken, I am satisfied that the prosecution has established its case beyond reasonable doubt that the appellant is guilty of the offence punishable under Section 376(2)(f) IPC. Resultantly, I find no infirmity in the impugned judgment of conviction passed by the trial court. Though the sentence imposed upon the appellant by the trial court is in contravention of the minimum sentence stipulated by Section 376(2)(f) IPC, I do not propose to interfere therein as no appeal for enhancement of sentence is filed by the State. For the reasons stated in the foregoing, this criminal appeal has no merit and, is, accordingly, dismissed. As the appellant is in jail, he shall serve out the remaining period of his sentence. The fee for the Amicus Curiae, which is quantified at Rs. 5,000/-, shall be paid by the Mizoram State Legal Services Authority without any loss of time. Transmit the LCR forthwith. Appeal dismissed