ORDER : 1. Heard Mr. Aldrin Lallawmzuala, learned, counsel for the appellant. Also heard Mrs. Linda L. Fambawl, learned Additional Public Prosecutor for the State. 2. This appeal has been filed against the judgment and order dated 19.1.2021 passed by the Special Court, POCSO Act, 2012 in SC No. 80/2018 arising out of Criminal Trial No. 837/2018, by which the appellant was convicted under section 6 of the POCSO Act, 2012 and sentenced to undergo Rigorous Imprisonment for 10 years and to pay a fine of Rs. 5000, in default Simple Imprisonment for I year, vide Sentence Order dated 2.2.2021. 3. The prosecution case in brief is that an FIR was filed by one Mrs. M.S. Dawngliani, w/o Mr. L. Rinmawia, stating that her 15 years old sister “X” had been raped by the appellant in July/August 2016 at Ar Farm Veng, Phullen village in their jhum hut and in November 2017. He again raped the victim at Ar Farm Veng, Phullen village and once behind the Anganwadi building in Phullen village. On the basis of the FIR submitted by [he victim's sister, Saitual Police Station Case No. 8/2018 dated 13.3.2018 was registered under section 6 of the POCSO Act, 2012 and investigation was initiated. 4. During investigation, the victim X and other witnesses were examined. Victim X was also sent to the Sub-District Hospital at Saitual for medical examination on 13.3.2018, wherein the medical examination report stated that no hymen could be seen. The victim X was also produced before the Judicial Magistrate, who recorded her statement, which was to the effect that the appellant had raped her. The Birth Certificate of victim X showed that she was born on 29.9.2003 and the appellant was arrested on 13.3.2018. As the Investigating Officer (I.O.) found a prima facie case under section 6 of the POCSO Act well established against the appellant, charge sheet was filed in the court of the Chief Judicial Magistrate, Aizawl who then committed the case for Trial before the Special Court, POCSO Act. 5. On 30.7.2018, charge under section 6 of the POCSO Act, 2012 was framed against the appellant, to which he claimed trial, stating that he was not guilty. The trial court thereafter examined 7 prosecution witnesses and 3 defence witnesses which included the appellant himself. After examination of the appellant under section 313, Cr. 5. On 30.7.2018, charge under section 6 of the POCSO Act, 2012 was framed against the appellant, to which he claimed trial, stating that he was not guilty. The trial court thereafter examined 7 prosecution witnesses and 3 defence witnesses which included the appellant himself. After examination of the appellant under section 313, Cr. P.C., the learned trial court convicted the appellant under section 6 of the POCSO Act vide the impugned judgment and order dated 19.1.2021 and sentenced the appellant to undergo 10 years rigorous imprisonment along with a fine of Rs. 5,000, in default Simple Imprisonment for 1 month, vide Sentence Order dated 2.2.2021. 6. Being aggrieved by the impugned judgment and order and the sentence order as indicated above, the present appeal has been filed by the appellant/convict. 7. The learned counsel for the appellant submits that the victim X (PW-6) was examined by the trial court on 10.9.2018, wherein the victim stated that the appellant had raped her in the year 2016 and also in November, 2017. However, in the re-examination conducted upon the victim by the trial court on 12.11.2020, the victim stated that she had fabricated the story of rape against the appellant due to the fact that the victim's sister, M.S. Dawngliani wanted her mother and the appellant to separate. 8. The learned counsel for the appellant further submits that the FIR had been filed only on 13.3.2018, while the alleged rapes had occurred in the years 2016 and 2017. He submits that due to the delay in filing the FIR, the allegation of rape made against the appellant is suspect. The appellant's counsel submits that the victim girl's mother had separated from her husband Vanlalsiama. Thereafter, the victim girl's mother started living with the appellant as man and wife, though there was no proper marriage between them. He submits that there is no question of the appellant having raped his lover's daughter, who was a minor. 9. The appellant's counsel further submits that the evidence of DW-1, who is the maternal aunt of the victim, is to the effect that the victim had told DW-1 that the appellant did not rape her and that she had made a false accusation against him because she was scared of her older sister, Mrs. M.S. Dawngliani, who wanted their mother to separate from the appellant. M.S. Dawngliani, who wanted their mother to separate from the appellant. He also submits that the evidence of DW-2, who is the cousin of the victim's mother, was to the same effect as the evidence given by DW-1. The appellant's counsel, thus, submits that in view of the defence evidence that had been recorded by the trial court, the impugned judgment & order and sentence order should be set aside. 10. The learned counsel for the appellant also submits that the victim girl was examined by a male Doctor, while section 27(2) of the POCSO Act, 2012 required a victim girl to be medically examined by a women Doctor. He, thus, submits that the medical examination report made by a male Doctor on the victim girl is not admissible as evidence. 11. Mrs. Linda L. Fambawl, learned Additional Public Prosecutor, on the other hand submits that the evidence of the victim girl (PW-6) taken by way of re-examination on 12.11.2020 cannot be considered, as the same has been taken after more than 2 years from the date when the evidence of the victim girl had been taken on 10.9.2018 and the victim's evidence had been closed. The Additional Public Prosecutor submits that the evidence taken by the learned trial court on 10.9.2018 clearly proved the fact that the appellant had raped the victim girl and the subsequent evidence of the victim girl taken by way of re-examination, 2 years later, must have been made due to some extraneous circumstances. She also submits that the medical report and the evidence of the medical Doctor having showed that the victim girl did not have any hymen goes to show that the allegation of rape made by the victim girl was corroborated. The learned Additional Public Prosecutor, thus, submits that there being no infirmity with the decision of the learned trial court, the impugned judgment and order and sentence order should be upheld. 12. I have heard the learned counsels for the parties. 13. The statement of victim X recorded by the Judicial Magistrate 1st Class, Aizawl under section 164, Cr. P.C. is to the following effect:— “Ramvanneia is my mother's lover and he often spends the nights at our home, thus, returning to his home in the morning. One day when I went to the jhoom to give him lunch, he started grabbing my breasts. P.C. is to the following effect:— “Ramvanneia is my mother's lover and he often spends the nights at our home, thus, returning to his home in the morning. One day when I went to the jhoom to give him lunch, he started grabbing my breasts. I manage to just head home that day quietly. Soon after, in the year 2016, we both went to the jhoom together. He went searching for vegetables during the whole morning and he was nowhere in sight. En the afternoon, as I “was about to leave for home he again started grabbing my breasts. He then took off my pant and underwear and he raped me. E told my family about the incident, however, as my family members were afraid of me earning a bad name in the society and also as Ramvanneia apologized in God's name promising to never ever touch me again in future, he “was forgiven by my family. Even after they have forgiven him in this manner, he again raped me three times in our home, while E was sleeping on my bed. E cannot recollect the exact date, however, E do know that it was a Sunday night when Ramvanneia handed me a chit where he wrote “I have your video and E have not shown it to anyone. Ef you do not want me to show it to others, come behind Anganwadi building”. Upon seeing this message, E went behind Anganwadi building where he again raped me. Post this, E did not have my monthly period for about 4 months and my family started getting suspicious. As they started questioning me, I handed the chit to them and I told them the entire details. We then headed towards Saitual PS lo lodge an FER.” 14. The evidence of PW-1 (informant), with regard to the allegation rape committed by the appellant upon victim X, is to the effect that the same had been told to her by victim X in the month of March 2018. The evidence of PW-5, who is the Medical Officer, is to the effect that victim X who was aged about 141/2 years, had told him that she had been sexually assaulted once in September 2017 and 4 times subsequently in November 2017 by her mother's boyfriend. 15. The evidence of PW-5, who is the Medical Officer, is to the effect that victim X who was aged about 141/2 years, had told him that she had been sexually assaulted once in September 2017 and 4 times subsequently in November 2017 by her mother's boyfriend. 15. The evidence of PWs-2 and 3 are to the effect that they are the sisters of victim X and that the Police seized the birth certificate of victim X from the possession of their mother, when they came to their house in Phullen on 14.3.2018. 16. The evidence of PW-4, i.e., the mother of the victim X is to the effect that she was married to Mr. Vanlalsiama and had 4 children. After separation from Mr. Vanlalsiama, all the children stayed with her. Thereafter, the two older children got married and started living in separate households. After separating from her husband, PW-3 started living with the appellant, though there was no proper marriage between them. On 13.3.2018, the police came to her house and thereafter, she gave the police the birth certificate of victim X. The evidence of PW-4, i.e., the mother of the victim X is that she had no knowledge of the appellant having been involved in sexual intercourse with her daughter. 17. The evidence of the victim X (PW-6), recorded on 10.9.2018 by the trial court, is to the following effect:— “On S/A From when I was 13 years old, the accused-Ramvanneia used to touch my breasts while we “were constructing our house at Ar Farm Veng, Phullen. During July or August 2016, I had gone with Ramvanneia to Zo “where we have our field, to collect vegetables. My mother was unwell and in hospital at the time. Ramvanneia took off my pants in the jhum hut and had sex with me by inserting his penis into my vagina. My mother has asthma and used to take medication which made her drowsy. While she was sleeping in the night after taking her asthma medicine, Ramvanneia had sex with me Lhrce Limes in our house in my bed in November 2017. Afterwards he called me to the Anganwadi Centre near our house. He said that he had a video of us having sex and would leak it out if I did not obey. He sent me letters two times to come to the Anganwadi Centre. Afterwards he called me to the Anganwadi Centre near our house. He said that he had a video of us having sex and would leak it out if I did not obey. He sent me letters two times to come to the Anganwadi Centre. I went to the Centre once because I “was scared he would leak the video out, and he had sex with me behind the Centre. I started missing my periods and told my oldest sister about it. She was in Aizawl and I phoned her and told her about it. She came to Phullen and asked me what had happened. I told her about the sexual assaults in the jhum hut, at home and behind the Anganwadi Centre. She spoke to my grandfather and other relatives and they decided to file an FIR. I went along with my older sister and she filed an FIR at Saitual PS. “was taken for a medical examination by the police accompanied by my sister. I “was also taken to the court at Aizawl and my statement “was recorded by a Judicial Magistrate. XXX by learned defense counsel: It is denied that Ramvanneia had merely hugged me in the house and that I had not objected but when my mother came I extricated myself. It is denied that the accused had not had sex with me in the jhum hut, the house or behind the Anganwadi Centre. I am not sure of the date when Ramvanneia had sex with me the first time but I am sure that it was in July or August 2016. I told my sister about the sexual assaults before the Christmas of 2017. My sister’s house where she lives with her husband is less than 1 km from the house in which I live with my mother. I do not have a younger brother. I do not know if the accused “was staying with my mother before the arrest because, after we filed the FIR, I was staying in Saitual. My biological father is still alive. It is denied that the accusation against Ramvanneia “was made falsely because my mother did not want to continue the relationship with him.” As can be seen from the above, the evidence of the victim is to the effect that the appellant raped her while still being a minor. 18. My biological father is still alive. It is denied that the accusation against Ramvanneia “was made falsely because my mother did not want to continue the relationship with him.” As can be seen from the above, the evidence of the victim is to the effect that the appellant raped her while still being a minor. 18. The evidence of PW-7 (LO.) is to the effect that the appellant denied committing rape upon the victim X during investigation. The victim was also taken before a Medical Officer, who examined her wherein it was found that her hymen was absent. The victim X was also taken before a judicial Magistrate for recording her statement. 19. The deposition of the maternal aunt of victim X, who is DW-I, is to the effect that victim X had told her that the appellant had done nothing to her. However, she had made a false accusation against the appellant because she was scared of her older sister, who wanted their mother to separate from the appellant. 20. The evidence of DW-2 who is the cousin of the mother of victim X is similar to the evidence given by DW-1. 21. The appellant also stood as a defence witness (DW-3) and his deposition is to the effect that victim X was his step daughter and that the informant was not happy with the marriage between victim X's mother and the appellant. DW-3 stated that the informant (PW-1) was always looking for an opportunity to create trouble between himself and the mother of victim X. DW-3 also stated that victim X falsely implicated him at the instigation of her elder sister and was repentant of her action, due to which victim X wanted to be re-examined by the court. DW-3 also stated that he did not have any sexual intercourse with victim X. As can be seen from the evidence recorded, the re-examination of the victim X has apparently been done due to the statement given by the appellant during evidence that the victim X wanted to be re-examined by the trial court. 22. The re-examination of the victim X by the learned trial court two years later, i.e., on 32.31.2020 is to the effect that the appellant did not rape her at any time and the allegation was fabricated at the behest of the informant who wanted the appellant and their mother to separate. 22. The re-examination of the victim X by the learned trial court two years later, i.e., on 32.31.2020 is to the effect that the appellant did not rape her at any time and the allegation was fabricated at the behest of the informant who wanted the appellant and their mother to separate. The evidence of the victim in the re-examination is as follows:— “On S/A Re-examination: I “was not actually subjected to sexual assaults of any kind by the accused. My sister M.S. Dawngliani wanted my mother and the accused to separate so she fabricated the story of sexual assault and asked me to say that the accused had sexual intercourse with me a number of times. The fact is that he never assaulted my in anyway. I got married on 18.5.2020 and before I got married I never had sexual intercourse with anybody. Cross-examination: Declined.” 23. A reading of the impugned judgment and order passed by the learned trial court goes to show that though the victim X had in her reexamination denied that the appellant had committed rape upon her and that the said allegation had been made on the pressure put upon victim X by her elder sister, who wanted her mother to separate from the appellant the learned trial court did not accept the evidence given by victim X during re-examination, on the ground that it was made solely to protect the appellant who was like a family member. The learned trial court thereafter came to a finding that as the deposition of victim X recorded by the trial court on 10.9.2018 had been corroborated by her judicial statement given before the Magistrate on 15.3.2018, the fact that the appellant had raped the victim had been proved. The learned trial court also came to a finding that tire appellant had rape the victim X, as the evidence of rape had been duly supported by the informant (PW-1) and the Medical Doctor (PW-5). 24. The evidence recorded in the above case clearly goes to show that the evidence given by victim X in the trial court on 10.9.2018 has been corroborated by the statement given by victim X under section 164, Cr. P.C. However, victim X has denied the truthfulness of her earlier deposition in her re-examination made 2 years later. The defence witness Nos. P.C. However, victim X has denied the truthfulness of her earlier deposition in her re-examination made 2 years later. The defence witness Nos. 1 and 2, who are related to victim X, have taken a stand that victim X had falsely accused the appellant, due to the pressure being applied upon victim X by the informant. The mother of victim X has not stated anything with regard to the allegation of rape. Thus, as per the records, the allegation of rape has been made only by the informant (PW-1) and victim X, as per the evidence of the victim X recorded on 10.9.2018. 25. Though it is settled law that once the statement of a prosecutrix inspires confidence and is accepted by the court, conviction can be based solely on the evidence of the prosecutrix, the problem that arises in the present case is the deposition of victim X in her re-examination recorded two years later, i.e., on 12.11.2020, which is to the effect that she had falsely accused the appellant of rape and that she had never had sexual intercourse with anybody prior to her marriage on 18.5.2020. 26. The truthfulness of the deposition of victim X in her re-examination recorded on 12.11.2020 is suspect due to the fact that she has stated that she never had sexual intercourse with anybody prior to her marriage on 18.5.2020, while the evidence of the Medical Officer and the medical examination report dated 13.3.2018 is to the effect that the hymen of victim X was absent during medical examination. However, it is possible that the absence of hymen can be due to other causes, such as exercise, gymnastics, putting in tampons, etc. 27. Due to the contradictory evidence given by victim X on 10.9.2019 and on 12.11.2020, the power of the learned trial court to invoke section 311 of the Cr. P.C. may be looked into. 28. Section 311 of the Cr. P.C. states as follows:— “311. Power to summon material witness, or examine person present. 27. Due to the contradictory evidence given by victim X on 10.9.2019 and on 12.11.2020, the power of the learned trial court to invoke section 311 of the Cr. P.C. may be looked into. 28. Section 311 of the Cr. P.C. states as follows:— “311. Power to summon material witness, or examine person present. -Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a “witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.” 29. Section 311, Cr. P.C. gives power to the court to summon any person as a witness or to recall or re-examine any witness at any stage of the proceedings, provided that the examination is essential for the just decision of the case. This has been held by the Apex Court in the case of S. Ratnavel Pandian and K. Jayachandra Reddy]], 1991 Supp (1) SCC 271 : AIR 1991 SC 1346 . 30. In the case of SM. Sikri, R.S. Bachawat and K.S. Hedge]], (1969) 3 SCC 429 : AIR 1970 SC 45 , the Apex Court has held that the court has inherent power to recall a witness, if it is satisfied that he is prepared to give evidence which is materially different from what he has already given at the trial. But when there is no material upon which the court can be so satisfied and the court rejects the defence application for recalling a prosecution witness after his cross-examination is already concluded, the rejection of the application is proper. 31. Thus, it is clear that the trial court has the power to recall a witness and re-examine him/her. Though an application under section 311, Cr. P.C. was filed by the appellant for recalling victim X for re-examination, no reason has been recorded by the learned trial court for recalling victim X for re-examination. Be that as it may, the victim X has been recalled and reexamined. Surprisingly, the re-examination of the victim X has been done by the prosecution and not by the appellant's counsel. P.C. was filed by the appellant for recalling victim X for re-examination, no reason has been recorded by the learned trial court for recalling victim X for re-examination. Be that as it may, the victim X has been recalled and reexamined. Surprisingly, the re-examination of the victim X has been done by the prosecution and not by the appellant's counsel. It is also surprising to note that once the evidence of victim X had been recorded, which was in consonance with the charge sheet and her statements given under sections 161 and 164, Cr. P.C., there was no reason for the prosecution to re-examine the witness two years later, as it was the defence/appellant who wanted re-examination of the witness. The re-examination of the witness should have been done by the appellant and if the witness's testimony on re-examination was found to be in contradiction to the evidence earlier recorded by the trial court, the prosecution could have sought for declaring her a hostile witness. The same not being done, this court would, have to take into consideration the evidence given by victim X in her re-examination. The gross discrepancy and contradiction in the evidence adduced by the victim X on 10.9.2018 and 12.11.2020 is there for all to see. The different stands taken by victim X in her evidence on two different dates also lends credence to the view that victim X is not a reliable witness. As such, in the considered, opinion of this court, the evidence of victim X cannot be taken at its face value, as it does not inspire the confidence of this court. Further, the impugned incident of rape having allegedly occurred firstly in July/August 2016, then in November 2017, coupled with the fact that there was a delay of approximately 1 year 8 months in filing an FIR, i.e., on 13.3.2018, lends suspicion with respect to the allegation of rape levelled, against the appellant. 32. In the case of Mohd. All alias Guddu v. State of Uttar Pradesh, (2015) 7 SCC 272 , the Apex Court has held that in rape cases the delay in filing the FIR by the prosecutrix or by the parents in all circumstance is not of significance. 32. In the case of Mohd. All alias Guddu v. State of Uttar Pradesh, (2015) 7 SCC 272 , the Apex Court has held that in rape cases the delay in filing the FIR by the prosecutrix or by the parents in all circumstance is not of significance. It has held that the court has granted adequate protection/allowance in that aspect, regard being had to the trauma suffered, the agony and anguish that creates turbulence in the mind of the victim, to muster the courage to expose oneself in a conservative social milieu. Keeping in view the contradictory evidence given by victim X in her reexamination on 12.11.2020, vis-a-vis her earlier evidence recorded on 10.9.2018, which makes the testimony of victim X to be suspect, this court is of the view that the delay in filing the FIR by 1 year 8 months from the date of the first alleged sexual assault is fatal to the prosecution. 33. Two views are possible while considering the contradictory evidence, one in favour of the appellant and the other against the appellant. As it settled law that the view in favour of the accused should be advanced/taken, this court holds that the evidence of the victim not being trustworthy, the benefit of doubt should be given to the appellant. As such, this court finds that the Prosecution has not been able to prove beyond reasonable doubt that the appellant is guilty of having committed an offence punishable under section 6 of the POCSO Act, 2012. Accordingly, in view of the reasons stated above, this court sets aside the impugned judgment and order dated 19.1.2021 passed by the Special Court, POCSO Act, 2012 in SC No. 80/2018 arising out of Criminal Trial No. 837/2018 and Sentence Order dated 2.2.2021. The appellant should be released from Jail immediately. 34. The Appeal is accordingly allowed. Send back the LCR.