JUDGMENT : Heard Mr. J.C Lalnungsanga, learned counsel appearing for the appellant as well as Mr. C. Zoramchhana, learned Public Prosecutor, Mizoram. The appellant has challenged the impugned Judgment & Order dated 26.04.2018 and the sentence order dated 17.05.2018 passed by the Special Court, POCSO Act, Lunglei in Crl.Tr. No. 158 of 2016, by which the appellant is convicted under section 376(2)(f)(i)(n) Indian Penal Code read with Section 6 of the POCSO Act, 2012 on 26.04.2018 and sentenced to undergo 10 years Rigorous Imprisonment with a fine of Rs.1000/-, in default S.I. for 1 month, vide Sentence Order dated 17.05.2018 and in Crl. Tr. No. 159 of 2016 wherein the accused was found guilty and convicted under section 376(2)(i)/506 IPC read with section 4 of POCSO Act on 26.04.2018 and sentenced to undergo 10 years Rigorous Imprisonment with a fine of Rs.1000/-, in default S.I. for 1 month, vide Sentence Order dated 17.05.2018. This court find it fit to club together both the cases in hearing the appeal wherein the nature of the offence is of the same kind and wherein both the incidents took place well within the period of one year, this is, in fact, an appropriate case for the trial court to have framed the charge of both the cases together under section 219 Cr.P.C. 2. The prosecution story in brief in Crl.A 27 of 2019 arising out of Crl. Tr. No. 158 of 2016 is that on 9.6.2015 @ 3:00 pm, a written report was submitted by H. Chhansanga, S/o Hengnawna of Sangau-I to the effect that his niece ‘X’ aged 12 yrs. D/o Zamliana (L) had been raped by F. Nawlsanga (63) of Sangau since she was 9 years old (2012) and even during the year 2015 he had raped her on three different occasions. They were late in learning about this fact and his niece ‘X’ cannot reveal the exact number of times she was raped by him. That the accused F. Nawlsanga is the husband of ‘X’s grandmother and she lives with them in the same house. In pursuance to the FIR submitted, PS C/No. 8/2015 dt.09.06.2015 u/s 376(2)(f)(i)(n) IPC r/w 6 of POCSO Act was registered against accused F. Nawlsanga (63) S/o Thlacheua (L) of Sangau. 3. During the course of investigation the P.O was visited and sketch map drawn. The statements of the Complainant and the victim ‘X’ was taken. In pursuance to the FIR submitted, PS C/No. 8/2015 dt.09.06.2015 u/s 376(2)(f)(i)(n) IPC r/w 6 of POCSO Act was registered against accused F. Nawlsanga (63) S/o Thlacheua (L) of Sangau. 3. During the course of investigation the P.O was visited and sketch map drawn. The statements of the Complainant and the victim ‘X’ was taken. The accused F. Nawlsanga (63) S/o Thlacheuva (L) was arrested on 09.06.2015 and forwarded to Court of CJM, Lawngtlai for judicial custody. The victim ‘X’ and the accused F. Nawlsanga (63), S/o Thlacheuva (L) were forwarded to M.O, Lawngtlai for medical examination. The victim’s medical report revealed ‘hymen-ruptured’ but there was no sign of fresh injury and vaginal smear was found negative. The accused F. Nawlsanga’s medical examination report revealed ‘normal’. The accused was thoroughly interrogated, wherein he admitted his guilt before Police. On 10.06.2015 accused was forwarded to CJM Court, Lawngtlai to record his confessional statement. On the same day the victim ‘X’ was also forwarded to CJM Court, Lawngtlai for recording her judicial statement. A prima facie case u/s 376(2)(f)(i)(n) IPC r/w 6 of POCSO Act was found well established against the accused F. Nawlsanga (63), S/o Thlacheuva (L) of Sangau – I and charge sheet submitted accordingly. 4. Charge under section 6 of the POCSO Act, 2012 read with section 376(2)(f)(i)(n) IPC was framed against the appellant on 02.08.2016, wherein the appellant pleaded not guilty and asked for trial. The trial court after examination of 5 (five) prosecution witnesses, examined the appellant/accused under Section 313 Cr.P.C on 26.05.2016 where he denied having committed any sexual assault upon the victim girl X, thereafter, 1 (one) defense witness was examined. The learned Trial Court, after hearing the parties relying, on the testimony of the victim girl X, found the appellant to be guilty and convicted him under section 376(2)(f)(i)(n) IPC read with section 6 of the POCSO Act, 2012 vide the impugned Judgment & Order dated 26.04.2018. Sentence hearing was held on 17.05.2018 whereby he was punished to undergo R.I. for 10 years with a fine of Rs.1000 /-, in default S.I. for 1month. 5. Being aggrieved, the appellant has filed the present appeal. 6. Mr. J.C Lalnunsanga, learned counsel for the appellant submits that the impugned Judgment and order should be set aside on the grounds that : (i) there is a great delay in the submission of the FIR. 5. Being aggrieved, the appellant has filed the present appeal. 6. Mr. J.C Lalnunsanga, learned counsel for the appellant submits that the impugned Judgment and order should be set aside on the grounds that : (i) there is a great delay in the submission of the FIR. That in the FIR it is stated that the appellant had raped ‘X’ from 2012 till June 2015 but the FIR was submitted only on 21.09.2016. No reason for the delay is mentioned in the FIR (ii) That the vital witness in the case to whom the alleged victim first disclosed the incident has not been made a witness in the case, (iii) The medical report shows that there is an old tear of the hymen which can also be caused due to fall while playing etc. (iv) the alleged victim cannot be said to be a sterling witness. She is not able to mention the dates the alleged rape took place and has stated that it was sometime during June and sometimes she mentions that it was some time during July. (v) age of the alleged victim is not proved. The learned Counsel has relied on the decisions of the High Court of Calcutta in Sushaka Ghosh v. State of West Bengal reported in 2021 SCC Online Cal 2508 in C.R.A No. 209 of 2017,Manirulm Islam v. State of Assam (2021) 3 GLT 128: 20121 Cri LJ 3339 : 2020 3 SCC 433. 7. Mr. C. Zoramchhana on the other hand submits that the there is no delay and that the FIR was submitted once the incident was disclosed. That the victim ‘X’ was staying with the appellant and his wife since her father was dead and her mother had later remarried someone else. She was scared to disclose the matter to anyone because she feared the accused/appellant. The victim had already reached puberty and fearing pregnancy had managed to escape from the accused and disclosed the incident to their neighbor Hrilthangmawii from whom they came to know of the incident. That the prosecutrix finally disclosed how the accused appellant use to sexually molest her since she was only 12 years of age and had been suffering in silence because she feared to tell the truth. That the prosecutrix finally disclosed how the accused appellant use to sexually molest her since she was only 12 years of age and had been suffering in silence because she feared to tell the truth. That there is no reason to disbelieve her testimony which is of sterling quality and the court can convict the accused/appellant without any corroboration if she is a sterling witness. 8. Having considered the submissions both the counsels the evidence adduced by the prosecution is examined. 9. PW No.1/Chhansanga is the complainant who stated that the victim is the daughter of his younger brother Zamliana who expired before the birth of victim. The victim was therefore residing with her grandmother Siangdawii who was married to the accused at the time of incident. He got to know about the incident when ‘X’ disclosed the incident to their neighbour Hrilthangmawii. After the said incident the accused and grandmother of victim have divorced. The victim was about 12 yrs of age during the time of incident. The victim had been repeatedly assaulted by the accused before they learnt about it and was threatened by the accused not to disclose the incidents to anyone. The last incident of sexual molestation occurred at night when the grandmother of the victim was out of station to visit an ailing relative at Reiek, the accused attempted to assault the victim again, however, the victim had already reached puberty and fearing pregnancy managed to escape from the accused and disclosed the incident to their neighbour Hrilthangmawii from whom they came to know of the incident as stated above. He cannot recollect the exact date but it was during the month of June, 2015 that he got to know of the incident. After learning about the alleged incident he submitted FIR at Sangau P.S on 9.06.2015 10. In his cross examination he mentions that the FIR was written down as he had narrated and it was read out to him before he put his signature. The cause of delay in submitting FIR is not mentioned. 11. It is noted here that PW1/the complainant has no first hand of the incident and got to know of the alleged incident only through a Hrilthangmawii however, after learning about the alleged incident in the month of June, he has promptly submitted the FIR at Sangau P.S on 9.06.2015. 12. 11. It is noted here that PW1/the complainant has no first hand of the incident and got to know of the alleged incident only through a Hrilthangmawii however, after learning about the alleged incident in the month of June, he has promptly submitted the FIR at Sangau P.S on 9.06.2015. 12. PW2 is the prosecutrix who deposed that the accused had sexually assaulted her for about two years before it was reported and had sexually assaulted her for about more than 10 occasions. The accused had sexually penetrated in her private parts on several occasions and threatened her with a knife and sometimes threatened her by telling her that he would not allow her to stay in their house since her biological father had already expired and her biological mother was already married to another person and living separately. On some occasions he would also offer her money and therefore she was not in a position to disclose the matter to anyone as she is an orphan and dependent on the accused. On the first occasion when the accused sexually assaulted her, blood had come out from her private parts. The accused would sexually assault her whenever he got the opportunity. Sometimes it was at night and sometimes it was in the day time when other persons were not in the house. All the sexual assaults had occurred within the house. On the last occasion she had informed of the incident to her relative Hrilthangmawii who had suspected something unusual was going on between the accused and her, and also since she had already attained puberty, she feared pregnancy. Thereafter, the sexual assault committed by the accused was reported to the police by her uncle Chhansanga. She was then questioned by the police and also taken for medical examination. 13. In her cross examination she stated that there are other houses close to the residence of accused and her relative Hrilthangmawii is also residing downstairs in the house of accused. She is going to school and also continued regularly even after the alleged incident. The accused was out of station on several occasions for two/three days. She has not narrated full facts of incident before the police but she has narrated the complete story before the Court. She was born on 6th Jan, 2003. She is going to school and also continued regularly even after the alleged incident. The accused was out of station on several occasions for two/three days. She has not narrated full facts of incident before the police but she has narrated the complete story before the Court. She was born on 6th Jan, 2003. She denied the suggestions that she was tutored by the complainant and other relatives to depose before the court and that the accused did not sexually assault her. 14. The prosecutrix in her deposition has explained the reason for the delay stating that she was not in a position to disclose the matter to anyone as she is an orphan and dependent on the accused. I find the reason given by her plausible, it is an undisputed fact that the victim girl ‘X’ was staying with her grandmother who was married to the appellant since the father of the girl is dead and her mother is re-married to someone else, thus, the victim ‘X’, is dependent on the appellant who has also threatened her not to disclose the truth. 15. I find that the deposition of the prosecutrix is straight forward and inspires confidence as she narrates how the accused had sexually molested her and explaining why she could not tell anyone about what the accused/appellant did to her. Nothing is made out in the cross examination, which caste doubt on the truthfulness of her testimony. Her testimony is corroborated by the medical examination report of the which was exhibited as Ext-P-IV(a) in the trial court, PW No.4/Dr. Lalmalsawma : stated that the victim aged about 12 yrs was brought before him for medical examination on 10.6.2015. On examination of the victim there was no sign of any external injury. On examination of the genitalia he found rupture of hymen but no fresh injury. He also sent vaginal smear for examination and received the report. The report gave negative result for spermatozoa. The presence of live spermatozoa is possible to be detected up to 24 hours. Nothing to discredit the medical examination report is made out during cross examination. 16. The Apex Court in Dola v. State of Odisha, (2018) 18 SCC 695: (2019) 3 SCC (Cri) 239 has held as follows: “6. The report gave negative result for spermatozoa. The presence of live spermatozoa is possible to be detected up to 24 hours. Nothing to discredit the medical examination report is made out during cross examination. 16. The Apex Court in Dola v. State of Odisha, (2018) 18 SCC 695: (2019) 3 SCC (Cri) 239 has held as follows: “6. It is well-settled law that if the version of the prosecutrix is believed, basic truth in her evidence is ascertainable and if it is found to be credible and consistent, the same would form the basis of conviction. Corroboration is not a sine qua non for a conviction in a rape case. The evidence of a victim of sexual assault stands on a par with the evidence of an injured witness and is entitled to great weight, absence of corroboration notwithstanding. If the evidence of the victim does not suffer from any basic infirmity and the “probabilities factor” does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration, except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. When a grown up and married woman gives evidence on oath in court that she was raped, it is not the proper judicial approach to disbelieve her outright. 17. In view of the above, I find no grounds to discredit the testimony of the victim ‘X’ duly corroborated by the medical report. 18. PW5/S.I V. HKilchema Nawlsanga during investigation he recorded the statements of the complainant and victim and thereafter arrested the accused who on interrogation admitted his guilt. He seized the birth certificate of the prosecutrix which was exhibited M Ext-1 and it was seen that the victim was minor. The statement of the prosecutrix was also recorded under section 164 Cr.P.C which was a apart of the charge sheet submitted. Thereafter he arrested the accused/appellant and interrogated him. The accused/appellant did not deny the accusation and narrated that he would sexually assault the victim with his fingers and the tip of his private part. He received the medical report wherein it was found that hymen was ruptured. He visited the PO and drew sketch map of the house and locality where the alleged offence was committed. The accused/appellant did not deny the accusation and narrated that he would sexually assault the victim with his fingers and the tip of his private part. He received the medical report wherein it was found that hymen was ruptured. He visited the PO and drew sketch map of the house and locality where the alleged offence was committed. He found prima facie case u/s 367(2)(f)(i)(n) IPC and section 6 of POCSO Act and submitted charge sheet accordingly. 19. During his cross examination he stated that the medical report stated there was ruptured of hymen but it was not mentioned whether it was fresh or old rupture. The medical report did not mention any external injury. The victim did not report the matter to any other person since the offence was first committed in the year 2012, although she had opportunity to report the matter to some other person. There are other houses nearby the residence of the accused where the alleged incident occurred. He did not examine any near neighbours. He did not seize any clothing of the victim and accused. He has seized the Xerox copy of birth certificate of the victim. He denied the suggestions that the accused did not admit to committing the offence; that due to family problems/misunderstanding the case was reported against the accused. 20. From the above deposition the age of the victim has been established by producing the Birth certificate which was duly exhibited before the trial the Court as M Ext-I which establishes that the victim was born on 6th Jan, 2003. The Medical Officer also recorded the age of victim to be about 12 years at the time of examination. Moreover it is noted that the first instant of offence was reportedly from the year 2012 when the victim would have been much younger. 21. The court is thus of the considered view that the appellant had committed penetrative sexual assault and rape on the child who was the grand-daughter of his wife more than once. 22. Further, this court find that while ordinarily there is a 'presumption of innocence' vis-a-vis an accused, section 29 of the POCSO Act reverses this position. Section 29 of the POCSO Act creates a 'presumption of guilt' on the part of the accused if he is prosecuted for committing, abetting or attempting certain offences. 22. Further, this court find that while ordinarily there is a 'presumption of innocence' vis-a-vis an accused, section 29 of the POCSO Act reverses this position. Section 29 of the POCSO Act creates a 'presumption of guilt' on the part of the accused if he is prosecuted for committing, abetting or attempting certain offences. Section 29 reads as under : “Presumption as to certain offences.--Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3,5,7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved." In the context of Section 29, the other provisions of the POCSO Act which also need attention is section 30 of that statute, which is extracted herein below for ease of reference : "30. Presumption of culpable mental state.--(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. 23. In a recent decision in the case of Bhupen Kalita Vs. State of Assam reported in 2020 (3) GLT 403 learned Single Judge of this Court had elaborately dealt with sections 29 and 30 of the POCSO and upon a detailed analysis of the aforementioned sections and on discussion of the various judicial pronouncements of the Apex held that: "71. In the light of the discussions above, the following legal positions emerge in any proceeding under the POCSO Act. (A) The prosecution has to prove the foundational facts of the offence charged against the accused, not based on proof beyond reasonable doubt, but on the basis of preponderance of probability. (B) Accordingly, if the prosecution is not able to prove the foundational facts of the offence based on preponderance of probability, the presumption under Section 29 of the Act cannot be invoked against the accused. (B) Accordingly, if the prosecution is not able to prove the foundational facts of the offence based on preponderance of probability, the presumption under Section 29 of the Act cannot be invoked against the accused. (C) If the prosecution is successful in establishing the foundational facts and the presumption is raised against the accused, the accused can rebut the same either by discrediting the prosecution witnesses through cross-examination or by adducing his own evidence to demonstrate that the prosecution case is improbable based on the principle of preponderance of probability. However, if it relates to absence of culpable mental state, the accused has to prove the absence of such culpable mental state beyond reasonable doubt as provided under Section 30(2) of the Act. (D) However, because of legal presumption against the accused, it may not suffice by merely trying to discredit the evidence of the prosecution through cross-examination, and the defence may be required to adduce evidence to dismantle the legal presumption against him and prove that he is not guilty.” 24. In light of the above finding the evidence adduced by the defence is examined. The accused on examination under section 313 Cr.P.C has denied the evidence adduced against him and has stated that the victim girl ‘X’ liked him as her own father and hanged around him when he came home from work. His wife who is the grandmother of the victim girl ‘X’ has falsely fabricated the case against him. His wife insisted him to make document transferring his house in her name which he refused. That she got angry and conspired with her other relatives, they fabricated this case against him. That she further insisted to make a promise in writing that the document of transfer he would make should not be revocable. 25. DW No.1: Thangchungnunga is the sole defence witness who stated that the accused is residing in his village and he has known him for long time. He is not aware of the incident allegedly blamed upon the accused. However since their village is small and there was no report received by the YLA or LWA at Sangau and no protest was made against the accused at the relevant time he does not believe the accused would have committed the offence. He is not aware of the incident allegedly blamed upon the accused. However since their village is small and there was no report received by the YLA or LWA at Sangau and no protest was made against the accused at the relevant time he does not believe the accused would have committed the offence. He believes the instant criminal proceeding was falsely fabricated by the former wife of the accused since she was planning to snatch the land and property of the accused. He does not know the victim in this instant case. 26. In his cross examination he stated that the accused could have divorced the former wife if they were not in good terms and that the former wife of the accused left the accused after the incident. 27. The evidence given by the defence witness shows that the wife of the appellant has left him after the incident and therefore finds the claim that the instant criminal proceeding was falsely fabricated by the former wife of the accused since she was planning to snatch the land and property of the accused is found unconvincing with no basis. Thus, I find no reason for the victim girl ’X’ to falsely implicate the appellant as alleged by the appellant. 28. On a combined reading of evidence of P.Ws.1 to 5 and Ext.M –I (Medical Certificate), this Court is of the opinion that prosecution has proved its case beyond all reasonable doubt and the accused/Appellant has failed to rebut the presumption under Section 29 and 30 of the POCSO Act. Trial Court has rightly appreciated the evidence of prosecution and come to the conclusion that the appellant/accused committed offence under 3 punishable under Section 4 of the POCSO Act read with section 376 (f) (i) (n) IPC in Crl.Tr. No. 158 of 2016. 29. In Crl. A. 28 of 2019 arising out of Cr. Trl. No. 159 of 2016 the prosecution story is that F.I.R was submitted on 18.06.2015 by Biakzama (58), S/o Rualhaia of Sangau-I, Lawngtlai district to the effect that on 31.05.2015, ‘X’ (the alleged victim in Crl.Tr. No. 158 of 2016) requested his daughter herein addressed as ‘Y’ aged 12 yrs. to sleep over in their house wherein the accused/appellant owner of the house threatened her with knife and raped her, Hence, Sangau P.S C/No. 9/15 Dt. No. 158 of 2016) requested his daughter herein addressed as ‘Y’ aged 12 yrs. to sleep over in their house wherein the accused/appellant owner of the house threatened her with knife and raped her, Hence, Sangau P.S C/No. 9/15 Dt. 1/7/2015 u/s 376(2)(i)/506 IPC r/w/section 4 of POCSO Act as registered and investigated into. 30. During investigation the complainant Biakzama was examined and his statement recorded, wherein he explained that incident that happened on 31.05.2015 was not revealed by the ‘Y’ earlier because she was afraid to tell the truth in the beginning. The victim ‘Y’ was examined and her statement recorded. She was then forwarded to Civil Hospital, Lawngtlai for medical examination and also forwarded to CJM Court Lawngtlai for recording her judicial statement by Pu Laldinpuia Tlau, CJM Lawngtlai. The P.O was visited by O/C Sangau PS and a rough sketch map drawn. Statement of one witness F. Hrilthangmawii also recorded. As the accused/appellant was already arrested and sent for judicial custody in connection with Sangau P.S C/No. 8/15 (Crl.Tr. No. 158 of 2016), the statement of the accused was recorded inside District Jail Lawngtlai. The accused did not admit his guilt before the police. But from the medical report of the victim and the judicial statement given by the minor victim and statements recorded from the witnesses, it was strongly established that on 31.5.2015 the accused forcibly raped the minor girl inside the house of the accused. Hence a prima facie case u/s 376(2)(i)/506 IPC r/w 4 of the POCSO Act was found well established against the accused F. Nawlsanga (63) S/o Thalcheuva of Sangau-I. 31. Charge under section 4 of the POCSO Act, 2012 read with section 376(2)(i)/506 IPC was framed against the appellant on 02.08.2016, wherein the appellant pleaded not guilty and asked for trial. The trial court after examination of 5 (five) prosecution witnesses, examined the appellant/accused under Section 313 Cr.P.C on 05.07.2016 where he denied having committed any sexual assault upon the victim girl ‘Y’, thereafter, 1 (one) defense witness was examined. The learned Trial Court, after hearing the parties relying, on the testimony of the victim girl ‘Y’, found the appellant to be guilty and convicted him under section 376(2)(i) IPC read with section 6 of the POCSO Act, 2012 vide the impugned Judgment & Order dated 26.04.2018. The learned Trial Court, after hearing the parties relying, on the testimony of the victim girl ‘Y’, found the appellant to be guilty and convicted him under section 376(2)(i) IPC read with section 6 of the POCSO Act, 2012 vide the impugned Judgment & Order dated 26.04.2018. Sentence hearing was held on 17.05.2018 whereby he was punished to undergo R.I. for 10 years with a fine of Rs.1000 /-, in default S.I. for 1 month. 32. Being aggrieved, the appellant has filed the present appeal along with the appeal against the Judgment and order in Crl.Tr.No. 158 of 2016. 33. Mr. J.C Lalnunsanga, learned counsel for the appellant submits that the impugned Judgment and order should be set aside on the grounds that; (i) there is a great delay in the submission of the FIR. That in the FIR it is stated that the appellant had raped ‘Y’ on 31.05.2015 but the FIR was submitted only on 02.08.2016. No reason for the delay is mentioned in the FIR (ii) That the vital witness in the case to whom the alleged victim first disclosed the incident has not been made a witness in the case. Who is a vital witness in the case (iii) The medical report shows that there is an old tear of the hymen which can also be caused due to fall while playing etc. (iv) the alleged victim cannot be said to be a sterling witness. (v) age of the alleged victim is not proved. The learned Counsel has relied on the decisions of the High Court of Calcutta in Sushaka Ghosh v. State of West Bengal reported in 2021 SCC Online Cal 2508 in C.R.A No. 209 of 2017, Manirulm Islam v. State of Assam (2021)3 GLT 128: 20121 Cri LJ 3339 : 2020 3 SCC 433. 34. Mr. C.Zoramchhana, on the other hand, submits that the delay in submission of the FIR has been explained since the matter was first reported to CWC and the FIR was then submitted on the advice of CWC. That the appellant appears habitual offender since he has committed similar kind of offence on the friend of the instant victim and is dangerous to the society. The age of the victim is likely to be around the same age of her friend who is the victim in Cr.Tr. No. 158 of 2016 who was also only 12 years of age. The age of the victim is likely to be around the same age of her friend who is the victim in Cr.Tr. No. 158 of 2016 who was also only 12 years of age. That the testimony of the victim child is truthful and is a sterling witness inspiring confidence which does not need any corroboration. He has relied on the Supreme Court’s decision. In Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21 . 35. Having considered the submissions both the counsels the evidence adduced by the prosecution is examined. 36. PW No.1/F. Biakzama: identified the accused and stated that the victim is his granddaughter and lived with them during the time of alleged incident. He came to know of the incident when in connection with another case, ‘X’ (the victim in Crl.Tr. No. 158 of 2016) had mentioned that the accused had also sexually assaulted the victim ‘Y’ in this case to a Hrilthangmawii and thereafter the incident came to be known to them. He then questioned the victim ‘Y’ and learnt that ‘X’( the victim in Crl.Tr. No. 158 of 2016) had invited ‘Y’ to sleep over sometime in the month of June, 2015. When ‘Y’ had gone to sleep over in their house, the accused had forcibly carried her from the bed of the ‘X’ (the victim in Crl.Tr. No. 158 of 2016) and threatened her with knife and thereafter sexually assaulted her. The matter was reported to the CWC at Lawngtlai and thereafter the FIR was submitted at Police Station, Lawngtlai and they prepared the FIR upon which he put his signature. 37. In his cross examination he stated that he did not have any direct knowledge of the incident and the facts that he have narrated are learnt from other persons. His residence is close to the house of accused. The cause of delay mentioned in the FIR submitted and written by the police is not correct since the matter was initially reported to CWC and not JJB. He does not have any knowledge whether the accused has any other criminal case pending or filed against him. He personally did not notice any unusual behavior in the victim. 38. PW No. 2/Hrilthangmawii: identified the accused and stated that during the time of alleged incident she was residing downstairs of the house of accused. He does not have any knowledge whether the accused has any other criminal case pending or filed against him. He personally did not notice any unusual behavior in the victim. 38. PW No. 2/Hrilthangmawii: identified the accused and stated that during the time of alleged incident she was residing downstairs of the house of accused. Since she was residing downstairs she had suspected untoward incidents committed by the accused upon the granddaughter ‘X’ (the victim in Crl.Tr. No. 158 of 2016) especially in the nights of Saturdays and Sundays when the wife of accused used to attend Church. During the year 2014 while she was residing downstairs of the house of accused these incidents was heard by her and she was deeply disturbed. She had spoken to the accused about the matter and he did not deny the incidents and told her that the victim was also willing. She had asked to ‘X’ (the victim in Crl.Tr. No. 158 of 2016) to narrate the incidents but she initially denied anything between the appellant and herself. She did not report the matter during those times since she did not get the corporation of the victim and fear that the case would not be successful. She continued pursuing the victim ‘X’ (the victim in Crl.Tr. No. 158 of 2016) saying that since she had attained puberty she would become pregnant and be out casted by the society. On the last occasion when the wife of accused had gone to visit ailing relatives at Reiek the accused had again attempted to assault the victim ‘X’ (the victim in Crl.Tr. No. 158 of 2016). Due to her persuasion on this occasion the victim did not agree to the advances of the accused and immediately rushed to her residence and narrated all the incident. She also narrated that the accused had sexually assaulted the victim in this present case viz..‘Y”. The relatives of ‘Y’ were also informed of the incident. 39. During cross examination she denied the suggestions that she has any enmity with the accused; that she has concocted the offences against the accused even on the refusal of the victim to narrate anything. 40. PW No. 3/prosecutrix ‘Y’: identified the accused/appellant and stated that the accused are running a small Tea Stall where they also reside and this stall is close to their residence and therefore she was acquainted with the accused. 40. PW No. 3/prosecutrix ‘Y’: identified the accused/appellant and stated that the accused are running a small Tea Stall where they also reside and this stall is close to their residence and therefore she was acquainted with the accused. She does not know for sure whether there is any ill relationship between the family of accused and her family. She was acquainted with ‘X’ (the victim in Cr.Tr.No. 158 of 2016) since they were attending the same school and lived close by. They used to visit each other’s house frequently. Sometime during June, 2015 the grandmother of the other victim ‘X’ (the victim in Crl.Tr.No. 158 of 2016) was out of station visiting ailing relatives at Reiek and therefore, invited her to sleep over at their house. She agreed and slept over at their house. The accused/appellant, ‘X’ (the victim in Crl.Tr. No 158 of 2016) and herself were present at the house when she slept over. She was watching TV at night with ‘X’( the victim in Crl.Tr. No. 158 of 2016) and after she fell asleep, at about midnight the accused/appellant came to her and tried to drag her to the bedroom. In the bed room there were two beds. She refused but he was carrying a knife and threatened to stab her and forcibly dragged her to the bedroom. He also threatened her and said that if she disclosed the matter he would not allow her to be free and she would also be sent to jail. Since he also threatened with the knife she submitted to this demand. He sexually assaulted her on the bed and afterwards told her to sleep. She went to the room where ‘X’ (the victim in Crl.Tr.No 158 of 2016) was sleeping and woke her up and they both slept on the other bed in the bedroom. After they slept the accused/appellant again woke her up at about 3:00 am and picked her up to his bed and again sexually assaulted her. The victim ‘Y’ further deposed that the accused/appellant threatened her that if she reported the matter even if he went to Jail she would also be put in Jail and she will also have a bad name in the society and would be out casted. Therefore, she did not report the matter to anybody and went home the next day. ‘X’ (the victim in Crl.Tr. Therefore, she did not report the matter to anybody and went home the next day. ‘X’ (the victim in Crl.Tr. No. 158 of 2016) told her that she knew about what had happened to her on the night of incident. During the month of June, 2015 ‘X’ (the victim in Crl.Tr. No. 158 of 2016) had reported the incidents which had occurred upon her and ‘Y’ is relatives came to know of what the accused/appellant did to her. Her foster father Biakzama, ‘X’ (the victim in Crl.Tr. No. 158 of 2016) Zothantluangi and herself proceeded to Lawngtlai and reported the matter to CWC at Lawngtlai where she was also questioned about the incident. Later she was taken to Lawngtlai P/S and later taken to the doctor for medical examination. 41. In her cross examination she stated that she frequently visited the residence of accused since she was acquainted with their granddaughter ‘X’ (the victim in Crl.Tr. No. 158 of 2016). The details of the incident were not narrated by her before the police as she had narrated in her examination-in-chief. 42. PW No. 4/Dr. C. Lalduhsaka: identified the accused and stated that on 19.6.2015 he was posted as Medical Officer, District Hospital, Lawngtlai and the prosecutrix ‘Y’ aged about 12 yrs was brought to him for medical examination. He examined the victim and his findings on medical examination of hymen were old tear at 4 O’clock and 7 O’clock position. Under normal circumstances hymen tear is usually healed after 48 hours. 43. In the instant case I find that the testimony of the prosecutrix ‘Y’ is corroborated by the Medical examination report wherein PW No. 4/Dr. C. Lalduhsaka has deposed that hymen of the prosecutrix ‘Y’ had old tear at 4 O’clock and 7 O’clock position. The testimony of the prosecutrix is not shaken during cross examination and inspires confidence. Her statement recorded under section 164 Cr.P.C is found to be consistent with her testimony deposed in the court. In Rai Sandeep v. State (NCT of Delhi) (supra) the Apex Court held that “The Court should carefully see that the prosecutrix is consistent in her 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. In Rai Sandeep v. State (NCT of Delhi) (supra) the Apex Court held that “The Court should carefully see that the prosecutrix is consistent in her 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. The prosecutrix should be in a position to withstand the cross examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the person involved, as well as the sequence of it. If other witnesses are there, there must be consistent match with the version of every other witnesses. If the testimony of the prosecutrix withstands the aforesaid test, she would be treated as a "sterling witness" and no corroboration is needed to base the conviction on the sole testimony of the prosecutrix.” In view of the above this court has no hesitation in treating the prosecutrix ‘Y’ as a sterling witness. Her testimony is duly corroborated by the medical evidence exhibited in the trial court in Ext. 44. Regarding the delayed FIR, I find that the delay in the submission is adequately explained as PW1 and PW3 have both explained that the matter was first referred to CWC and thereafter the FIR was submitted. This court in Manirulm Islam v. State of Assam (supra) held that : “Law is firmly settled that delay in lodging FIR would not make the prosecution case improvable if the delay is properly explained.” 45. Regarding the age of the prosecutrix, the doctor has mentioned her age as 12 yrs which was not disputed during cross examination and thus it can safely be presumed that the prosecutrix must have been below 16years of age at the time of the incident and therefore a definitely child under the POCSO Act. 46. It may also be again mentioned that while ordinarily there is a 'presumption of innocence' vis-a-vis an accused, section 29 of the POCSO Act reverses this position. Section 29 of the POCSO Act creates a 'presumption of guilt' on the part of the accused if he is prosecuted for committing, abetting or attempting certain offences. 46. It may also be again mentioned that while ordinarily there is a 'presumption of innocence' vis-a-vis an accused, section 29 of the POCSO Act reverses this position. Section 29 of the POCSO Act creates a 'presumption of guilt' on the part of the accused if he is prosecuted for committing, abetting or attempting certain offences. Section 29 reads as under: “Presumption as to certain offences.--Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3,5,7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved." 47. In the context of Section 29, the other provisions of the POCSO Act which also need attention is sections 30 of that statute, which are extracted herein below for ease of reference : "30. Presumption of culpable mental state.--(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.” In a recent decision in the case of Bhupen Kalita Vs. State of Assam reported in 2020 (3) GLT 403, learned Single Judge of this Court had elaborately dealt with sections 29 and 30 of the POCSO and upon a detailed analysis of the aforementioned sections and on discussion of the various judicial pronouncements of the Apex held that: "71. In the light of the discussions above, the following legal positions emerge in any proceeding under the POCSO Act. (A) The prosecution has to prove the foundational facts of the offence charged against the accused, not based on proof beyond reasonable doubt, but on the basis of preponderance of probability. (B) Accordingly, if the prosecution is not able to prove the foundational facts of the offence based on preponderance of probability, the presumption under Section 29 of the Act cannot be invoked against the accused. (B) Accordingly, if the prosecution is not able to prove the foundational facts of the offence based on preponderance of probability, the presumption under Section 29 of the Act cannot be invoked against the accused. (C) If the prosecution is successful in establishing the foundational facts and the presumption is raised against the accused, the accused can rebut the same either by discrediting the prosecution witnesses through cross-examination or by adducing his own evidence to demonstrate that the prosecution case is improbable based on the principle of preponderance of probability. However, if it relates to absence of culpable mental state, the accused has to prove the absence of such culpable mental state beyond reasonable doubt as provided under Section 30(2) of the Act. (D) However, because of legal presumption against the accused, it may not suffice by merely trying to discredit the evidence of the prosecution through cross-examination, and the defence may be required to adduce evidence to dismantle the legal presumption against him and prove that he is not guilty.” 48. In light of the above finding the evidence adduced by the defence is examined. The accused/appellant on examination under section 313 Cr.P.C has denied the evidence adduced against him and has stated that his wife Siangdawii demanded a promise in writing to be signed by him that his house and other goods should be in her name and should not be revocable in any subsequent date which he refused. She got angry and made this false case against him. He has produced one defence witness; 49. DW No. 1/Thangchungnunga who stated that the accused/appellant is residing in his village and he has known him for long time. He is not aware of the incident allegedly blamed upon the accused. However since their village is small and there was no report received by the YLA or LWA at Sangau and no protest was made against the accused at the relevant time he does not believe the accused would have committed the offence. He believes the instant criminal proceeding was falsely fabricated by the former wife of the accused since she was planning to snatch the land and property of the accused. He does not know the victim in the instant case. 50. He believes the instant criminal proceeding was falsely fabricated by the former wife of the accused since she was planning to snatch the land and property of the accused. He does not know the victim in the instant case. 50. In his cross examination he stated that the accused counsel have divorced the former wife if they were not in good terms and that the former wife of the accused left the accused after the incident. 51. I find that the defence evidence has failed to rebut or discredit the prosecution witnesses through cross-examination or by the evidence adduce and has failed to prove that the case of the prosecution is fabricated and that the prosecution case is improbable based on the principle of preponderance of probability. 52. For the aforesaid reasons, I find no grounds to interfere with the findings of the trial court in Crl.Tr. No. 159 of 2016 wherein the accused was found guilty and convicted under section 376(2)(i) IPC read with section 4 of POCSO Act on 26.04.2018 and sentenced to undergo 10 years Rigorous Imprisonment with a fine of Rs.1000/-, in default S.I. for 1 month, vide Sentence Order dated 17.05.2018. 53. Accordingly both, Crl. A No. 27 of 2019 and Crl.A No. 28 of 2019 are dismissed and stand disposed.