JUDGMENT : Heard Mr. T. Lalnunsiama, learned Amicus Curiae and Mr. C. Zoramchhana, learned Public Prosecutor, Mizoram. 2. The appellant has challenged the Judgment & Order dated 09.11.2021 passed by the Special Court, POCSO Act, Lunglei in Criminal Trial No. 223/2019, by which the appellant has been convicted under Section 376-AB IPC read with Section 6 of the POCSO Act, 2012 and sentenced to undergo 20 years Rigorous Imprisonment with a fine of Rs.5,000/-, in default, Simple Imprisonment for one month, vide sentence Order dated 11.11.2021. 3. The brief facts of the case is that an FIR was lodged by one Mr. Zothankhuma (PW-1) on 08.12.2018 before the Lawngtlai Police Station, alleging that his minor niece X was sexually assaulted by the appellant, in his sitting room at about 11:00 AM. The FIR was registered as Lawngtlai P.S. Case No. 54 dated 08.12.2018 under Section 376-AB IPC read with Section 6 of the POCSO Act. 4. The complainant Mr. Zothankhuma (PW-1) stated that the appellant had come into his house on 08.12.2018 when he was alone with his niece X. PW-1 thereafter left his house to go to work, leaving behind the victim X and the appellant. However, as PW-1 had decided to go on foot to his office and having found that he was still carrying his Scooty keys, he returned to his house to put the Scooty keys in his house. PW-1, on opening the door of his house, saw the appellant lying on top of X on a long chair with his pants removed. He also saw that the underwear of X had been removed. PW-1 also saw the appellant’s penis near the minor girl’s vagina (private parts). 5. Investigation of the case was taken up initially by PW-8 and thereafter by PW-9. X was examined by a Medical Doctor on 08.12.2018, wherein the Medical Doctor found laceration of approximately 1.5 cm on the left side of the labia minora and a laceration of 1 cm on the right side of the labia minora. The lacerations were associated with redness and the hymen was torn at the 5 O’clock position. The statement of X was recorded under Section 164 CrPC on 10.12.2018, wherein the victim X stated that the appellant’s penis had penetrated the victim’s private parts. 6. The lacerations were associated with redness and the hymen was torn at the 5 O’clock position. The statement of X was recorded under Section 164 CrPC on 10.12.2018, wherein the victim X stated that the appellant’s penis had penetrated the victim’s private parts. 6. After taking the statement of the witnesses, Charge-sheet was filed by the Police and charge under Section 376-AB IPC read with Section 6 of the POCSO Act was framed against the appellant on 01.05.2019. 7. The evidence of the prosecutrix and 8 (eight) other prosecution witnesses were recorded by the learned Trial Court. The appellant was examined under Section 313 CrPC, wherein the appellant took the stand that he was too drunk on the said date and during the relevant time, to have any urge to have sex with the minor X. 8. The learned Trial Court thereafter passed its Judgment & Order dated 09.11.2021, convicting the appellant under Section 376-AB IPC read with Section 6 of the POCSO Act. The appellant was sentenced to undergo R.I. for 20 years with a fine of Rs. 5,000/-, i.d. S.I. for 1 (one) month, in terms of Section 376-AB IPC by applying the provisions of Section 42 of the POCSO Act, 2012, wherein it has been provided that where an act or omission constitutes an offence punishable under the POCSO Act, 2012 and also under Section 376-AB IPC and notwithstanding anything for the time being in force, the offender found guilty of such offence shall be liable to punishment under the POCSO Act, 2012 or under the IPC, as provides for punishment, which is greater in degree. 9. The appellant being aggrieved by the impugned Judgment & Order and sentence imposed, has filed the present appeal, praying that the sentence imposed upon the appellant may be reduced, as the sentence of 20 years R.I was a burden too heavy for him to bear. 10. 9. The appellant being aggrieved by the impugned Judgment & Order and sentence imposed, has filed the present appeal, praying that the sentence imposed upon the appellant may be reduced, as the sentence of 20 years R.I was a burden too heavy for him to bear. 10. The learned Amicus Curiae submits that the evidence of PW-1, having clearly stated that PW-1 did not see the penis of the accused inside the private parts of X, the offence committed by the appellant could at best, be presumed to be an attempt to rape, as there was no penetration of the appellant’s private parts into the private parts of the victim X. He also submits that the evidence given by a minor girl/prosecutrix would have to be evaluated more carefully and with greater circumspection. In support of his submission, the learned Amicus Curiae has relied upon the judgments of the Apex Court in the case of Panchhi and Others Vs. State of U.P., reported in (1998) 7 SCC 177 and in the case of Ratansinh Dalsukhbhai Nayak Vs. State of Gujarat, reported in (2004) 1 SCC 64 . 11. The learned Amicus Curiae thus submits that as there is no proof that there was penetration of the appellant’s private parts into the private parts of the victim X, the impugned Judgment & Order dated 09.11.2021 should be set aside and the trial should be re-started, from the stage of framing of charge under attempt to rape against the appellant. 12. Mr. C. Zoramchhana, learned Public Prosecutor submits that the credibility of a child witness and the decisions relied upon by the learned Amicus Curiae pertains to child eye witnesses, in respect of offences committed to other persons. However, the competency of a child witness, such as the victim X, cannot be an issue in the present case, as the appellant was caught red handed by PW-1. Further, the victim X was herself a victim of the offence and as such, the evidence given by X coupled with the evidence of the Medical Doctor, clearly proves that there was penetration of the victim’s private parts by the appellant’s private parts. 13. The learned Public Prosecutor further submits that even if the credibility of the victim X is questioned, this Court would have to see the effect of the deposition of the child witness and whether it inspires the confidence of the Court. 13. The learned Public Prosecutor further submits that even if the credibility of the victim X is questioned, this Court would have to see the effect of the deposition of the child witness and whether it inspires the confidence of the Court. He submits that there is nothing to show in the evidence given by the prosecutrix and the other witnesses, to show that the deposition of the victim X did not inspire confidence. As such, the evidence of a child witness, who was also a prosecutrix being trustworthy, there can be conviction of the appellant, on the sole testimony of the prosecutrix, as held by the Apex Court in the case of State of U.P. Vs. Pappu Alias Yunus and Another, reported in (2005) 3 SCC 594 . 14. We have heard the learned counsels for the parties. 15. The fact that the appellant was on top of the victim X when PW-1 suddenly returned to his house on the morning of 08.12.2018 is an admitted fact. The fact that the appellant was without his underwear and pants along with the absence of the underwear of the victim X at the relevant point of time is also an admitted fact. The issue raised by the learned Amicus Curiae is that there was no penetration, due to PW-1 not having seen the act of penetration of the appellant’s private parts into the private parts of the victim X would have to be decided by this Court, on the basis of the evidence given by the prosecutrix and other witnesses. 16. Though PW-1 has stated that he did not see the penis of the appellant inside the private parts of the victim X, the prosecutrix (PW-2) has stated in her evidence that when PW-1 left the house, the appellant closed the door and made her lie down and took off the underwear of the victim X and the appellant took off his own pants and lay on top of the victim X. X further states as follows:-“He inserted his penis into my vagina. My uncle Zothankhuma returned to the house to keep the scooty keys and saw Isak lying on top of me. Anu Mabiaki, Anu Ruati and Apa Siama came to the house and I told them what had happened. I went to the Police Station. Later on, I was taken to a hospital and a doctor examined me”. 17. My uncle Zothankhuma returned to the house to keep the scooty keys and saw Isak lying on top of me. Anu Mabiaki, Anu Ruati and Apa Siama came to the house and I told them what had happened. I went to the Police Station. Later on, I was taken to a hospital and a doctor examined me”. 17. The evidence of the Medical Doctor, who examined the victim X on the date of the incident itself, i.e., on 18.12.2018, is to the effect that there were no sign of injury on the body of the victim X. “However, a genital examination revealed that there was a laceration of approximately 1.5 cm on the left side of the labia minora and a laceration of 1 cm on the right side of the labia minora. The lacerations were associated with redness. The hymen was torn at the 5 O’clock position. Apart from these injuries in the genitals, everything was normal”. The Medical Doctor in his cross examination has also stated as follows:- “It is denied that the tear in the hymen was old. It looked like a fresh tear because there was redness”. 18. The evidence of the other prosecution witnesses, including the Investigating Officer is basically to the effect that they were informed of the act apparently done by the appellant on the victim X, who was around 5 (five) or 6 (six) years old. 19. The appellant in his examination under Section 313 CrPC has given an explanation to the evidence recorded against him, to the effect that he was drunk and unable to go to work. Also, he did not have the urge to have sex with the minor. The appellant thus states in his examination under Section 313 CrPC that he did not do any act against the victim X, including lying on top of her or inserting his private parts into the private parts of the victim X. 20. In the case of Panchhi and Others (supra), the Apex Court has held that the evidence of a child witness must be evaluated more carefully and with greater circumspection, because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring. 21. In the case of Panchhi and Others (supra), the Apex Court has held that the evidence of a child witness must be evaluated more carefully and with greater circumspection, because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring. 21. In the case of Ratansinh Dalsukhbhai Nayak (supra), the Apex Court has held that the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation on oath. It also held that it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. 22. In the present case, it is not the stand of the learned Amicus Curiae or the stand of the appellant in the Trial Court that the victim X had been a prey to tutoring. The only stand taken by the appellant is that he did not commit rape, but it was only an attempt to rape. On the other hand, at the time of recording the statement of the appellant under Section 313 CrPC, the explanation given by the appellant against the evidence of rape adduced against him, is only to the effect that as he was drunk, the appellant could not go to work and that he did not have the urge to have sex with the victim X. 23. As held by the Apex Court in the case of Ratansinh Dalsukhbhai Nayak (supra), the decision on the question whether the child witness has sufficient intelligence primarily rests with the Trial Judge who notices his manners, his apparent possession or lack of intelligence. There is no stand taken by the appellant before the learned Trial Court that the victim X did not have sufficient intelligence or that the victim X had been tutored. There is no stand taken by the appellant before the learned Trial Court that the victim X did not have sufficient intelligence or that the victim X had been tutored. There is nothing to show in the records of the learned Trial Court or in the impugned Judgment & Order that the evidence of the victim X did not inspire the confidence of the Court or that the same were not accepted by the learned Trial Court. 24. On perusing the evidence given by the victim X, we are of the view that the evidence given by the victim X inspires confidence and that the victim X did not lack intelligence, with regard to the given facts and the account of what had happened to her by the act of the appellant, on the relevant date and time. The victim X had categorically stated that the appellant had inserted his penis into her vagina and it is possible that when PW-1 re-entered his house to drop his scooty keys, the appellant had taken out his private parts from the private parts of the victim X at that relevant point of time. 25. In the case of State of U.P. Vs. Pappu (supra), the Apex Court has held that there can be conviction on the sole testimony of the prosecutrix and in case the Court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance to her testimony. 26. In the case of State of Punjab Vs. Gurmit Singh and Others, reported in (1996) 2 SCC 384 , the Apex Court has held that the statement of a prosecutrix is more reliable than that of an injured witness. 27. In the case of Narender Kumar Vs. State (NCT of Delhi), reported in (2012) 7 SCC 171 , the Apex Court has held that once the statement of the prosecutrix inspires confidence and is accepted by this Court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required, unless there are compelling reasons which necessitate the court for corroboration of her statement. It further held that corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. 28. It further held that corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. 28. In the present case, the appellant had been caught red handed lying over the victim X, without his pants and his penis was also seen by PW-1. The victim X was also without her underwear, which had been taken off by the appellant. The victim X had also given her evidence that the appellant had inserted his penis into her private parts. The Doctor’s evidence is to the effect that there was injury in the private parts of the victim X and that there had been a recent tear of the hymen at 5 O’clock position. The given facts show that besides the evidence of the victim X inspiring confidence of the Court, the same had been corroborated by medical evidence and by an eye witness, i.e., PW-1. 29. In view of the reasons stated above, we do not find any infirmity with the decision of the learned Trial Court in convicting the appellant and sentencing him under Section 376-AB IPC. 30. Consequently, the appeal is dismissed. 31. In appreciation of the assistance rendered by the learned Amicus Curiae, his fee is fixed at Rs.8,500/-, to be paid by the Mizoram State Legal Services Authority (MSLSA). 32. Send back the LCR.