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2021 DIGILAW 576 (GAU)

State of Mizoram v. F. Ramngaihzuala

2021-09-22

NELSON SAILO

body2021
ORDER : 1. Heard Mrs. Linda L. Fambawl, learned Public Prosecutor for the State appellant and Mr. Victor L. Ralte, learned amicus curiae for the respondent. 2. This is an appeal filed against the judgment and order dated 28.11.2017 passed by the Court of Special Judge, Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) in S.C No. 113/2015 A/o Crl. Tr. No. 953/2015 convicting the respondent under section 10 of the POCSO Act and thereafter, sentencing him to rigorous imprisonment for 4 years with fine of Rs. 1,000 and in default, to undergo 15 days simple imprisonment vide the order of sentence dated 29.11.2017. 3. The case of the prosecution in brief is that on 11.4.2015, a written FIR was submitted by Zohmingthangi, President MHIP, Sakawrtuichhun to the effect that the respondent had repeatedly raped his own daughter since the year 2014 and that the last incident was on 11.4.2015. The parents of the victim girl were divorced and that she and her other sisters lived with their father, i.e., the respondent. The victim girl did not have the courage to reveal about the incident earlier and that she could do the same only on the night of 11.4.2015. Accordingly, Vaivakawn P.S Case No. 39/2015 dated 11.4.2015 under section 376(2)(f)(i) and (n) of the Penal Code, 1860 (‘IPC’) read with section 6 of the POCSO Act was registered and the case investigated into. Upon completion of the investigation and finding a prima facie case against the respondent under section 6 of the POCSO Act, the case Investigating Officer (I.O.) filed the charge sheet before the court. Charge was then framed against the respondent under section 6 of the POCSO Act and to which, he pleaded not guilty and claimed for trial. During trial, the prosecution examined as many as 10 prosecution witnesses out of the listed 14 prosecution witnesses. As for the respondent, he did not examine any witness in his defence. The respondent was examined under section 313, Cr.PC and then after, the parties were heard, the learned trial court convicted and sentenced the respondent under section 10 of the POCSO Act in the manner already stated herein above. Being aggrieved with the alteration of the charge and the quantum of sentence imposed, the State has preferred the instant appeal. 4. Mrs. Being aggrieved with the alteration of the charge and the quantum of sentence imposed, the State has preferred the instant appeal. 4. Mrs. Linda L. Fambawl, learned Public Prosecutor submits that the grounds of appeal are mainly two fold. Firstly, charge was framed against the respondent under section 6 of the POCSO Act but the learned trial court in its judgment and order has altered the same to one under section 10 of the POCSO Act and the same is only misconceived, unjustified and contrary to the evidence on record. Secondly, the learned trial court could not have imposed the punishment of rigorous imprisonment for 4 years upon the respondent after convicting him under section 10 of the POCSO Act, inasmuch as, the minimum sentence prescribed under the said section is 5 years. Referring to the evidence of the prosecutrix, who was examined as PW-6, the learned Addl. Public Prosecutor submits that she had clearly stated that the respondent who is her biological father after separation with her mother in the year 2014, started assaulting her sexually at night while sleeping and in the presence of her 2 younger sisters who usually were asleep. He undressed her under-pants and took off his pants as well and then, he entered his penis into her private part. Sometimes, he climbed upon her and sometimes he assaulted her from her side. Sometimes, she felt wet in her body and in her under-pant from what came out from her father's male organ. Her father sexually assaulted her every night and he told her not to tell anybody or else, he would kill her. However, when her father was not at home, she narrated her misfortune to their neighbour Pu. Rinawma, who was also her father's friend. The YMA members then came and took her father to the Police and she was taken to the Medical Officer for medical examination. The learned Addl. Public Prosecutor submits that the testimony of the prosecutrix has been corroborated by the statements of the other witnesses and importantly, by the statements of PWs-1,4 and 8 amongst others. She further submits that the underwear of the prosecutrix was seized by the I.O. in the presence of PW-3 and PW-4 and was sent for forensic examination at the Forensic Science Laboratory (FSL), Aizawl. She further submits that the underwear of the prosecutrix was seized by the I.O. in the presence of PW-3 and PW-4 and was sent for forensic examination at the Forensic Science Laboratory (FSL), Aizawl. The examination revealed that semen of human origin belonging to blood group-A was detected from the stains found in the underwear marked as Exhibit-A. The respondent was also medically examined and his blood group was found to be ‘A+’ Therefore, even on this count, it is established that the respondent committed rape upon the prosecutrix. However, the learned trial court in view of the hymen of the prosecutrix being intact was of the view that section 10 and not section 6 of the POCSO Act was attracted. This view, according to the learned Addl. Public Prosecutor, is contrary to the evidence on record. Referring to section 3 of the POCSO Act, the learned Addl. Public Prosecutor submits that penetration of the penis to any extent into the vagina, mouth, urethra or anus of a child or making the child to do so with him or with any other person would constitute penetrative sexual assault. Therefore, the ingredients to constitute penetrative sexual assault does not include the rupture of the hymen and as such, the finding arrived at by the learned trial court is only misconceived. In support of her submission, she relies upon the case of Bhupen Kalita v. State of Assam, (2020) 5 GLT 153. 5. The learned Addl. Public Prosecutor further submits that even if one is to presume that the charge under section 6 of the POCSO Act was rightly altered to one under section 10 of the same Act, the learned trial court could not have imposed the sentence of 4 years rigorous imprisonment since the minimum sentence prescribed under the said section is 5 years imprisonment while the maximum sentence is 7 years. When the POCSO Act has not given any discretion to the court to determine the minimum term of imprisonment, the learned trial court could not have passed the impugned order of sentence contrary to the law. She, therefore, submits that the impugned order of sentence cannot be sustained and should be interfered with appropriately. In support of her submission, she relies upon the Apex Court decision rendered in Mohd. Hashim v. State of Uttar Pradesh, (2017) 2 SCC 198 . 6. Mr. She, therefore, submits that the impugned order of sentence cannot be sustained and should be interfered with appropriately. In support of her submission, she relies upon the Apex Court decision rendered in Mohd. Hashim v. State of Uttar Pradesh, (2017) 2 SCC 198 . 6. Mr. Victor L. Ralte, learned amicus curiae, on the other hand, submits that the prosecution has to prove their case with proof beyond reasonable doubt and this burden has not been discharged in the instant case. According to the prosecution, the prosecutrix was subjected to rape for more than a year but the medical evidence only indicated that there was redness around the vaginal opening while the hymen was intact. Therefore, the learned trial court was right in rejecting the version of the prosecution that she was subject to aggravated penetrative sexual assault. 7. Mr. Victor L. Ralte further submits that PW-14 in his cross-examination stated that it was not a fact that the seized underwear was the underwear of the prosecutrix. Therefore, the FSL examination report cannot be relied upon to prosecute the respondent under section 6 of the POCSO Act. The learned amicus curiae further submits that the blood group of the respondent was found to be ‘A+’ after he was medically examined. On the other hand, the blood group found in the semen stain in the seized underwear was that of blood group A’. Since the blood group A+’ and ‘A’ are not similar, the FSL report even on this count, cannot be relied upon to prosecute the respondent. The learned amicus curiae also submits that except for the evidence of the medical Doctor, all the evidence of the prosecution witnesses are hearsay evidence. He submits that at any rate, since the learned trial court has convicted and punished the respondent under section 10 of the POCSO Act, he cannot now be convicted under a different section under the same bundle of facts. In support of his submission, he relies upon the decision of a co-ordinate Bench of this court (as it was then) in Pulin Bihari Roy v. State of Tripura, (2012) 5 GLT 58. 8. In support of his submission, he relies upon the decision of a co-ordinate Bench of this court (as it was then) in Pulin Bihari Roy v. State of Tripura, (2012) 5 GLT 58. 8. The learned amicus curiae further submits that the respondent was arrested on 11.4.2015 and throughout the trial, he was not released on bail and he being sentenced to 4 years of rigorous imprisonment, he would by now be out of jail after completing the term of imprisonment imposed upon him. He also submits that since the State appellant is aggrieved with the sentence imposed upon the respondent, the instant appeal should have been preferred under section 377 of the Cr.PC and not under section 374 of the same Code. He, thus, submits that under the facts and circumstances, the appeal is without any merit and the same may be dismissed. 9. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record including the lower court's record requisitioned from the trial court. 10. From the projection made by the appellant, the issue to be considered is as to whether the respondent was wrongly convicted under section 10 of the POCSO Act instead of section 6 of the same Act and whether, he could have been imposed with a sentence lesser within the minimum sentence period prescribed by section 10 of the POCSO Act. In order to find out, the correctness of the impugned judgment and order and the sentence passed, let us examined the evidence led during the trial. 11. PW-1 Zohmingthangi, who is the informant in her examination-in-chief, stated that she knows the accused-person produced in the court and that he was a resident of Sakawrtuichhun. During the year 2015, she was the Local Council Chairman of Sakawrtuichhun. On 11.4.2015, she received information over. telephone from Lalhmaa asking her to immediately rush to the house of Lalrami of Field Veng in-Sakawrtuichhun. Sh. Lalhmaa also informed him that one minor girl was sexually assaulted by her own father and that the victim ran away from her father and hid in her neighbour's house and the accused-person was trying to take the victim home from Her hiding place. She then rushed immediately to the house of Lalrami where the victim was hiding from her own father, i.e., the accused. She met Mr. She then rushed immediately to the house of Lalrami where the victim was hiding from her own father, i.e., the accused. She met Mr. Zonuntluanga VDP leader and together, they went to the house of Lalrami. On reaching the house, they asked the victim what her father did to her. She narrated that the accused sexually assaulted her for several times, sometimes in the night time and sometimes in the morning. She also stated that while they were staying at Mamit, the accused also used to sexually assault her. While the victim was narrating the incidents, the accused came to the house and all of them went to the house of the accused. The YMA leaders also came to the house of the accused and after some discussion, the accused was taken to the Police Station. At the Police Station, she as the Chairman of the Local Council and President of the MHTP submitted the FIR. She exhibited the FIR and her signature as Exhibit P-1 and Exhibit P-1(a). PW-1, in her cross-examination, stated that she did not know the exact time of the alleged sexual assault and that she never heard any rumour about the sexual assault earlier. She did not see any mark in the body of the victim or in her private part since she did not examine her personally. 12. PW-2, Malsawmtluanga and PW-3, Lalfakzuala are both seizure witnesses, who accompanied the prosecutrix while she was being taken for medical examination and they witnessed the seizure and her underwear. They both exhibited the seizure memo, their signatures and the seized underwear. 13. PW-4, Ramngaihawmi who is the wife of P.C. Lalrinawma (PW-8) in her examination-in-chief stated that she knows the respondent who was produced before the court. The respondent too resided at Sakawrtuichhun and they were close neighbours. After the accused and his wife got separated, their children were living with him. The victim was his daughter and she had 2 other siblings and they frequently visited their house. She used to sell vegetables at Ramrikawn and on 11.4.2015, while she was at Ramrikawn, her husband contacted her through mobile phone and asked her to immediately come home. He stated that the victim and her siblings were afraid of their father as he used to sexually assault the victim. She used to sell vegetables at Ramrikawn and on 11.4.2015, while she was at Ramrikawn, her husband contacted her through mobile phone and asked her to immediately come home. He stated that the victim and her siblings were afraid of their father as he used to sexually assault the victim. She then immediately went home and on entering the house she saw the victim and she asked her how she was assaulted by her father. The victim told her that her father sexually assaulted her at night time and she was afraid of him and did not want to go home. They reported the matter to the MHIP of their locality and submitted a FIR in the Police Station. Later they went to the Crime Against Women (‘CAW’) Cell and the Police seized the Baptismal Certificate of the victim and that she was present at the time of seizure and she put her signature in the seizure memo. She exhibited the seizure memo, her signature and the seized Baptismal Certificates as Exhibit P-3, P-3(a) and M-1, respectively. In his cross-examination, PW-4 reiterated what she stated in her examination-in-chief. 14. PW-6 is the prosecutrix and in her examination-in-chief, she stated that the accused-person was her father and presently, she was living in the Hlimna in Girl's Home at Saitual which is run by the Child Welfare Committee of the Social Welfare Department, Govt. of Mizoram. She was now reading in Class-6 and studied in William Booth Middle English School. After her father and mother separated, she and her 2 younger sisters lived with their father at Mamit and they later on shifted to Sakawrtuichhun, where her father worked in a stone quarry. She, her father and her 2 younger sisters used to sleep together on the floor at night and that her father let her sleep besides him. He started assaulting her sexually after her 2 younger sisters went to sleep. He undressed’ her under-pants and after he took off his pants he entered his penis into her private part. Sometimes, he climbed on her and sometimes he assaulted her from her side. Sometimes, she felt wet in her body and in her under-pant from what came out from her father's male, organ. Her father sexually assaulted her every night and he told her not to tell anybody or else, he would kill her. Sometimes, he climbed on her and sometimes he assaulted her from her side. Sometimes, she felt wet in her body and in her under-pant from what came out from her father's male, organ. Her father sexually assaulted her every night and he told her not to tell anybody or else, he would kill her. However, when her father was not at home, she told their neighbour Pu. Rinawma, who was her father's friend. The YMA members then came and took her father to the Police and she was taken to the Medical Officer for medical examination. In her cross-examination, PW-6 stated that it was a fact that there was no injury mark on her private part while she was repeatedly assaulted by the accused. 15. PW-8, P.C. Lalrinawma, who is also the husband of Ramngaihawmi (PW-4), in his examination-in-chief stated that he knows the accused-person produced in the court and that he also resided at Sakawrtuichhun as they are next-door neighbour. The accused had 3 (three) daughters and they frequently visited their house. On 11.4.2015, he was in the house and his wife was out of the house to visit their relatives. The daughters of the accused came to their house and they informed him that they did not want to go home as they were scared of their father. When he asked them why they were afraid of their father, the prosecutrix who was the eldest of the 3 (three) sisters stated her father sexually assaulted her many times. Surprised to hear the narration, he contacted his neighbour Pu. Lalhmaa and he informed him what he had heard. Pu. Lalhmaa, in turn, informed the Local Council member. In the evening, his wife came home and he told her what the prosecutrix had said to him. His wife also asked the victim about the incident and she told her how she was sexually assaulted by her father. The Local Council informed the matter to the Police and the Police later on came and arrested the accused. In his cross-examination, PW-8 stated that it was a fact that he did not see the accused sexually assaulting the victim and also he did not know whether the victim was medically examined or not. 16. PW-10, Dr. Lalbiakdiki, in her examination-in-chief, stated that during the year 2015, she was posted at Civil Hospital, Aizawl as Gynaecologist. In his cross-examination, PW-8 stated that it was a fact that he did not see the accused sexually assaulting the victim and also he did not know whether the victim was medically examined or not. 16. PW-10, Dr. Lalbiakdiki, in her examination-in-chief, stated that during the year 2015, she was posted at Civil Hospital, Aizawl as Gynaecologist. On 11.4.2015, she received a requisition from Vaivakawn Police Station to examine an alleged rape victim. She accordingly examined the victim who was 10 years of age and found her physically and mentally stable. Upon examining her genitals, she found redness around the vaginal opening and she recorded her findings in the examination report which she exhibited as Exhibit P-4 and her signature as Exhibit P-4 A. In her cross-examination, she stated that the victim herself reported that she was 10 years of age. She did not know the cause of redness around the vaginal opening of the victim. The Police personnel who brought the victim did not produce any document to identify the victim. 17. PW-11, Dr. Robert Lalduhkima, in his examination-in-chief, stated that during the year 2015, he was posted as Medical Officer in Civil Hospital, Aizawl. On 11.4.2015, he received a requisition from Vaivakawn Police Station to examine the accused, who was alleged to have committed sexual assault. Accordingly, he examined the accused and found him to be physically and mentally normal. On examining his genitals, he found the same to be fully developed. There were no scratches, laceration and abrasion and there was no presence of smegma around corona gland and there is no sign of infection. On general examination, he found him fit to perform sexual activity and he recorded his findings in his examination report which he exhibited as Exhibit P-5 and his signature as Exhibit P-5 A. In his cross-examination, he reiterated what is stated in his examination-in-chief. 18. PW-13, Ammie Lalnunpuii, in her examination-in-chief, deposed that during the year 2015, she was posted at the FSL as Junior Scientific Officer. 18. PW-13, Ammie Lalnunpuii, in her examination-in-chief, deposed that during the year 2015, she was posted at the FSL as Junior Scientific Officer. On 22.4.2015, she received a requisition to examine the underwear of the victim which was marked as Exhibit-A. She conducted examination and after careful physical and biological examination of the exhibit using scientific instruments available in the FSL, she found semen of human origin belonging to blood group ‘A’ from the stains of Exhibit-A. In her cross-examination, she stated that she did not know the blood group of the accused as she did not receive his blood sample. 19. PW-14, Lalawmpuii, who was the I.O. in her examination-in-chief, stated that she knows the accused-person present in the court. On 11.4.2015, a written FIR was submitted to the effect that the accused repeatedly raped his own daughter who was 10 years of age and staying with him since 2014 and the last incident occurred on 10.4.2015. The victim did not disclose the incident earlier but did so only on the night of 11.4.2015 to their neighbour P.C Lalrinawma, who then informed Lalhmaa. Lalhmaa, in turn, informed Zohmingthangi, the complainant. After a case was registered, she was endorsed to take up the investigation. During her investigation, she examined the complainant and recorded her statement. Likewise, she also examined the victim and recorded her statements. The victim stated that after the separation of their parents, she continued to live with her father at Sakawrtuichhun. He sexually assaulted her since 2014 while they were living at Mamit and continued to do so in Sakawrtuichhun as well. The last incident was took place on 10.4.2015 and on the next day, she disclosed the incident to P.C Lalrinawma, their neighbour. The victim was forwarded to Medical Officer at Civil Hospital, Aizawl for examination and she received the medical report, which was already exhibited as Exhibit P-4. She seized the underwear of the victim in presence of reliable witnesses and sent the same to the FSL for examination. The FSL report showed that semen of human origin belonging to blood group A was detected from the stain in the underwear marked as Exhibit-A which corroborated the blood group of the accused. She also seized the Baptismal Certificates of the victim for age determination and the same was marked as Exhibit M-1. The FSL report showed that semen of human origin belonging to blood group A was detected from the stain in the underwear marked as Exhibit-A which corroborated the blood group of the accused. She also seized the Baptismal Certificates of the victim for age determination and the same was marked as Exhibit M-1. She examined and recorded the statement of other witnesses as shown in the charge sheet. The victim was also forwarded to the CJM, Aizawl for recording her judicial statement and the victim stated that she did not dare disclose about the incident as her father threatened her by saying that he would kill her if she did. On 11.4.2015, at around 10.15 a.m., she arrested the accused and interrogated him. The accused admitted his guilt and PW-14 forwarded him to the Medical Officer for examination. Thereafter, she received the medical examination report which has already been exhibited as Exhibit P-5. Upon finding the prima facie case under section 6 of the POCSO Act against the accused, she submitted the charge sheet before the court on 25.5.2015. PW-14 exhibited the charge sheet, her signature, the property search and seizure forms and the Baptismal Certificate of the victim as Exhibits P-6, P-6 A, P-2, P-3 and M-1. In her cross-examination, she stated that the informant submitted the FIR based on the information disclosed by the victim to her neighbour. She did not know who were present at the time when the victim disclosed about the incident to Pu. Lalrinawma and Zohmingthangi and that it was not a fact that the seized underwear was the underwear of the victim. 20. To sum up the evidence of the prosecution, it may be seen that the prosecution examined 10 prosecution witnesses including the prosecutrix herself while the defence did not examine any defence witness. The judicial statements of the prosecutrix were recorded by the Chief Judicial Magistrate beginning with some general questions and which she was able to answer rationally. She stated that towards the beginning of the year 2014 while she was asleep, her father pulled down her quilt and after taking off her pants, he raped her. Her younger sister Peki also awoke but she went off to sleep again. Her father warned her that if she made any noise he would kill her. She stated that towards the beginning of the year 2014 while she was asleep, her father pulled down her quilt and after taking off her pants, he raped her. Her younger sister Peki also awoke but she went off to sleep again. Her father warned her that if she made any noise he would kill her. In this manner, he committed rape upon her many times and it usually happened while they were sleeping at night. The last time he raped her was on 10.4.2015. The next day, while her father had gone out, she and her sisters went to the house of Mr. Rinawma, who was their neighbour and also her father's friend and she told him what her father used to do to her. Mr. Rinawma informed the YMA leaders who then reported and handed over her father to the Police. The prosecutrix in her evidence during the trial stated that after their parents separated in the year 2014, she and her two sisters lived with her father at Mamit. Thereafter, they shifted to Sakawrtuichhun near Aizawl city where her father worked in a stone quarry. She and her two sisters slept with their father on the floor and that her father let her sleep besides him. He started assaulting her sexually after her two younger sisters go off to sleep. He undressed her underpants and he took off his pants and underpants as well and then he entered her private part with his penis. Sometimes he climbed on her and sometimes he assaulted her from her side. Sometimes she felt wet in her body and in her underpants from what came out from her father's male organ. Her father sexually assaulted her every night and he told her not to tell anybody or else he would kill her. When her father had gone out, she told Mr. Rinawma, who is her father's friend, about what her father had done to her. The YMA members, thereafter, took her father to the Police. Mr. Rinawma (P.C. Lalrinawma) was examined as PW-8 and in his examination-in-chief, he stated that on 11.4.2015 while he was at home and his wife had gone out, the daughters of the accused came and told him that they did not want to go back home as they were afraid of their father. Mr. Rinawma (P.C. Lalrinawma) was examined as PW-8 and in his examination-in-chief, he stated that on 11.4.2015 while he was at home and his wife had gone out, the daughters of the accused came and told him that they did not want to go back home as they were afraid of their father. When he asked them the reason, the prosecutrix said that her father sexually assaulted her many times. Surprised to hear this, he informed his neighbour Mr. Lalhmaa, who in turn informed the Local Council member. In the evening, his wife came home and he told her what the prosecutrix had narrated to him. She then also asked the prosecutrix what her father had done to her and the prosecutrix told her what her father did to her as well. The wife of PW-8, i.e., Smt. Ramngaihawmi was also examined as PW-4. In her examination-in-chief, she stated that on 11.4.2015, while she was at Ramrikawn, her husband contacted her over phone and informed her to come back home. He also informed her that the prosecutrix and her younger siblings were afraid of their father as he used to sexually assault the prosecutrix. She then went home immediately. On reaching home, she saw the prosecutrix and she asked her what her father had done to her. The prosecutrix told her that her father used to sexually assault her at night and that she was afraid of him and did not want to go home. From the evidence of these witnesses, it can be clearly seen that the version of the prosecutrix is consistent and corroborated. There is also consistency in her version before and during the trial. The learned trial court in the impugned judgment and order was also of the view that the evidence of the prosecutrix is corroborated by the evidence of all the prosecution witnesses and that the appellant sexually abused his own daughter at night. However, as the medical report revealed that the hymen of the prosecutrix was intact with redness around the vaginal opening, the learned trial court took the view that section 6 of the POCSO Act was not attracted and instead, it was section 10 of the same Act which was applicable. However, as the medical report revealed that the hymen of the prosecutrix was intact with redness around the vaginal opening, the learned trial court took the view that section 6 of the POCSO Act was not attracted and instead, it was section 10 of the same Act which was applicable. Therefore, the trial court proceeded to convict the appellant under section 10 of the POCSO Act and vide the Order of Sentence dated 29.11.2017 imposed upon the appellant rigorous imprisonment for 4 years with fine of Rs. 1,000 and with a default clause. 21. Section 3 of the POCSO Act deals with penetrative sexual assault. The same may be abstracted hereunder for ready perusal:— “3. Penetrative sexual assault.— A person is said to commit “penetrative sexual assault” if— (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.” 22. From the above abstract, it may be seen that a person is said to commit penetrative sexual assault if he penetrate his penis to any extent into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person or if he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person. It may be seen that in order to constitute penetrative sexual assault the rupture of the hymen is not a precondition. It may be seen that in order to constitute penetrative sexual assault the rupture of the hymen is not a precondition. The above provision also does not say that it would not amount to the commission of an offence of penetrative sexual assault, if the hymen of the alleged victim is found to be intact. The Apex Court in the case of Bhupeh Kalita (supra) held that the use of the words “to any extent’ in section 3(a) and (b) means that the penetration may not necessarily be deep or injurious to the private parts and even a mild or peripheral penetration will constitute penetration within the ambit and meaning of section 3 of the POCSO Act. Therefore, even if there is no full penetration of the male organ into the vagina and even if it is superficial, it can amount to penetrative sexual assault within the meaning of section 3 of the POCSO Act and punishable under section 4 of the Act. 23. Section 5 of the POCSO Act deals with aggravated penetrative sexual assault. Section 5(1) of the same Act provides that whoever commits penetrative sexual assault on the child more than once or repeatedly is said to commit aggravated penetrative sexual assault. Section 5(m) further provides that whoever commits penetrative sexual assault on a child below 12 years is said to commit aggravated penetrative sexual assault. Further, section 5(m) provides that whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child is said to commit aggravated penetrative sexual assault. The punishment for aggravated penetrative sexual assault is provided under section 6 of the POCSO Act, which is rigorous imprisonment for a term which shall not be less than 20 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 or with death. 24. 24. Having regard to the evidence led by the prosecution, the relevant provisions of the POCSO Act and the Apex Court decision in Bhupen Kalita (supra), I am of the considered view that the learned trial court could not have altered the charge from section 6 to section 10 of the POCSO Act. In respect of the sentence of 4 years rigorous imprisonment imposed upon the appellant on his conviction under section 10 of the POCSO Act, it may be seen that the minimum imprisonment provided under the said provision is for a term which shall not be less than 5 years and may also extend to 7 years with fine. When 5 years imprisonment is the minimum term of imprisonment, the learned trial court could not have awarded only 4 years imprisonment. The Apex Court in Mohd. Hashim (supra) in the given facts of that case held that when the Legislature has prescribed minimum sentence without discretion, the same cannot be reduced by the courts. In such cases, imposition of minimum sentence, be it imprisonment or fine, is mandatory and leaves no discretion to the court. Minimum sentence means a sentence which must be imposed without leaving any discretion to the court. It means a quantum of punishment which cannot be reduced below the period fixed. Similarly, in the present case, section ??? the POCSO Act does not give the court any discretion to impose a sentence lesser than the minimum stipulated. Therefore, the sentence imposed by the learned trial court is also found to bad in law. The case of Putin Bihari Roy (supra) cited by the learned amicus curiae in view of the facts involved and conclusion reached is found tobe not applicable. This court is informed that during the pendency of the State. appeal, the accused-respondent was released from jail on 2.11.2018 on remission of the term of his sentence. Although the accused-respondent is represented by the learned amicus curiae but in view of the findings arrived at, it is found necessary that an opportunity shbuld'be afforded to him to show cause as to why he should not be convicted under section 6 of the POCSO Act and be given appropriate punishment. He will also be entitled to defend himself and lead evidence, if any. Likewise, the prosecution should be given the opportunity to be heard and cross examine the defence witness, if any. 25. He will also be entitled to defend himself and lead evidence, if any. Likewise, the prosecution should be given the opportunity to be heard and cross examine the defence witness, if any. 25. In that view of the matter, the impugned judgment and order of conviction and the order of sentence are hereby interfered with, insofar as, the alteration of charge from section 6 to section 10 and the period of imprisonment, respectively, are concerned. The matter is now remanded back to the learned trial court who shall issue necessary process to secure the presence of the accused-respondent before the court. On his appearance, the learned trial court shall give him and the prosecution an opportunity as already stated herein above. Thereafter, the learned trial court shall proceed in accordance with law and bring the case to its logical conclusion. It is needless to mention herein that the period of imprisonment already undergone by the accused-respondent shall be set off. The appeal accordingly stands disposed of. Send back the LCR. 26. The fee of the learned amicus curiae is quantified at Rs. 7,500 which shall be paid by the Mizoram State Legal Services Authority on production of a copy of this order.