JUDGEMENT : 1. Heard Ms. Lalngaihsaki Fanai, learned counsel for the appellant. Also heard Mr. C. Zoramchhana, learned Public Prosecutor, State of Mizoram. 2. The challenge: The present appeal is preferred under Section 374 (2) of the Cr.P.C., 1973 against the judgment and order dated 26.08.2020 passed by the learned Special Judge, POCSO, Aizawl, Mizoramin SC No. 179/2017 in Criminal Trial No. 1441/2017 convicting the appellant under Sections 4 of the POCSO Act, 2012 and also against the impugned order dated 08.09.2020 by which the appellant was sentenced to undergo 7 years rigorous imprisonment with a fine of Rs. 10,000/-and in default to pay the fine, another simple imprisonment of 6 months. 3. The prosecution case: I. The prosecution case was initiated on the basis of an FIR dated 04.07.2017, wherein it was alleged that on 30.06.2017 the accused/ appellant had engaged in sexual intercourse with the victim against her will, who was 17 years & 6 months of age at the time of the incident. It is alleged that the accused had offered her a lift on his scooty on her way back from Maubawk and she accepted his offer to drop her at her residence in Tuikual Sount. However, the accused took her into his sofa workshop in Dinthar where he raped her under threat. On the basis of the said FIR, the police registered a case being Vaivakawn Police Station Case No. 97/2017 under Section 4 of the POCSO Act and after completion of the investigation laid charge-sheet under Section 4 of the POCSO Act and sent him for trial. II. The learned trial court framed charges under Section 4 of the POCSO Act, read over and explained the same to the accused, to which he pleaded not guilty and claimed to be tried. Accordingly, the trial commenced. 4. The prosecution witnesses: I. To bring home the charges against the accused persons, the prosecution examined as many as 6 witnesses and exhibited certain documents including birth certificate of the victim. II. PW1, the informant as well as the victim in her deposition stated that she was born on 11.12.1999. She started working at Hotel Clover, Chanmari from 13.01.2017 for about two months and then she shifted to Arini Hotel and she worked there for about two months. She deposed that she was preparing to go to the Andaman & Nicobar Island to work over there. She started working at Hotel Clover, Chanmari from 13.01.2017 for about two months and then she shifted to Arini Hotel and she worked there for about two months. She deposed that she was preparing to go to the Andaman & Nicobar Island to work over there. She further deposed that on 30.06.2017, she had gone to Maubawk with her friend’s husband in connection with her Adhaar Card. Around 6 p.m., she started walking from Maubawk towards Tuikual, where she was staying at that time with her friends. She further deposed that the accused, who was not known to her came up on a scooter and offered her a lift and she declined the offer. She further stated that when she reached Bungkawn, she found him standing on the road and the accused again asked her to get into the scooter. She further deposed that the accused said that he would drop her and as it was raining she agreed. Then the accused took her to his sofa workshop in Dinthar, which was all dark. She further stated that the accused asked her, if she could put on her phone light. She deposed that she put the phone on and gave it to him. Then the accused immediately closed the door and put on lights on the workshop. The accused made her sit down on a sofa and gave her some liquor to drink. According to her she did not want to drink but the accused forced her to have the liquor. The accused then told her to remove her clothes and said that he would kill her if she did not obey him. Accordingly, she removed her clothes and the accused then had sex with her. She further deposed that the accused forced her to hold his penis and insert it into her vagina and said that from then she should be his wife and that he would have sex with her every day. Thereafter she asked him to take her Chanmari. She told the accused that she wanted to go to Axis bank. She further deposed that the accused waited for her near the bank and she ran to Hotel Clover to ask her friend Joseph to help her and she told everything to Joseph. On 04.07.2017 she filed the FIR. Thereafter she asked him to take her Chanmari. She told the accused that she wanted to go to Axis bank. She further deposed that the accused waited for her near the bank and she ran to Hotel Clover to ask her friend Joseph to help her and she told everything to Joseph. On 04.07.2017 she filed the FIR. She deposed that she did not go earlier to file an FIR because she did not know the procedure. She proved Ext. P-1 as the FIR and Ext.P-1A as her signature. During her cross-examination, she denied the suggestion that she was not born on 11.12.1999. She also denied the suggestion that she had already completed 18 years last year. During her cross-examination, she deposed that she did not know the accused before the sexual assault happened. She also denied that the accused did not have sex with her. During her cross-examination, she denied the suggestion that the accused did not do anything wrong to her. She further stated that the accused was not carrying any weapons. During her cross-examination, she denied the suggestion that it was not the accused Lalchhuana Ngente but some other person had sexually assaulted her and the accused had been wrongly implicated. III. PW2 is Joseph Lalduhawma Ngente. In his deposition, stated that he knew the accused Lalchhuana Ngente. He deposed that he was working in Hotel David Clover last year and at that time, the victim aged about 17 years was also working in the same hotel. He further deposed that he knew the victim from the time she was working in the hotel. He in his deposition further deposed that they were given accommodation in the hotel and stayed in the hotel. He deposed that one night at about 7 to 8 p.m. when he was at Dolly Restaurant, which is part of the hotel establishment, the victim was no longer working in the hotel came crying to him from the main road and told that her purity had been violated and she was in tears. The victim told him that when she was on the way to home and when it was raining the accused on a scooty offered her a lift. She refused but as the man insisted and because it was raining she got on the scooty. The victim told him that when she was on the way to home and when it was raining the accused on a scooty offered her a lift. She refused but as the man insisted and because it was raining she got on the scooty. He further deposed that they reached Dinthar and near a sofa workshop the man stopped and requested her to come into the workshop. The accused told her that it was not nice for them to be seen outside as it was time when people were returning from Church so she entered the sofa workshop. There he offered her liquor, she refused but he threatened to kill her so she had some liquor. The accused then told her to remove her clothes and as she was scared she obeyed him. Then the accused had sex with her. He deposed that the victim told him that the accused gave her his phone number and told her to call him later. The victim gave him the phone number and he called the number. He further deposed that he asked the accused why he took her into the workshop and he said that he was shy being outside when people were returning from church. During the cross-examination, he deposed that he did not see any FIR filed by the victim and did not know exactly when the victim was born but he believed that the victim was 17 years when the incident happened. During cross-examination, he deposed that he did not know anything about the incident apart from what the victim told him herself and the accused told him by phone. He further deposed that the accused denied the allegation when he spoke to him by phone. He did not know the victim for very long before the incident occurred. During his cross-examination, he deposed that he could not say that the victim took the phone number of the accused because she might have wanted to demand something from him. During his cross-examination, he deposed that he did not know how the victim spent her time after she left the hotel job but he knew that she went to her home town. IV. PW-3 Vanlalzawna in his deposition deposed that he did not know the accused. During his cross-examination, he deposed that he did not know how the victim spent her time after she left the hotel job but he knew that she went to her home town. IV. PW-3 Vanlalzawna in his deposition deposed that he did not know the accused. He further deposed that on 15.09.2017, he had accompanied Zotluanga, the father of the victim in a case of sexual assault, to the Aizawl PS. At the PS Zotluanga handed over the original birth certificate of his daughter to the police and they prepared a seizure memo. He proved the seizure memo as Exhibit-4 and his signature as Exhibit-P-4-A. During cross examination, he deposed that he did not read the contents of the seizure memo before he signed it and he also did not read the contents of the birth certificate. He further deposed that he did not know the date of birth of the victim. V. PW4 Dr. Zosangpuii in her deposition deposed that in 2017, she was posted at Civil Hospital, Aizawl as a Gynecologist. She deposed that on 04.07.2017, she received a requisition from Vaivakawn PS to conduct a medical examination of the victim who was produced by the police for examination and at that point of time was aged about 17 years. She deposed that she took her consent and conducted the examination. She deposed that the victim was physically and mentally sound and found that there was no sign of injury on her genital organs. Her hymen showed that there was an old rupture. She proved her examination repot as Exhibit-P3 and her signature as P-3-A. During her cross-examination, she deposed that she did not conduct the age determination of the victim and also she was not able to recognize the victim. VI. The record reveals that there is no PW-6 and it seems that PW-7 is actually PW-6 and wrongly numbered as PW-7. Be that as it may, PW-7 R. Lalthanpuii in her deposition deposed that while she was posted at IUCAW Cell Aizawl as Sub-Inspector of Police, on 04.07.2017, an FIR was received at Vaivakawn PS from the victim aged about 17 years of Phuldungsei Vengthar, who was staying in Tuikual Veng, Aizawl. She stated that on 30.06.2017, she had gone to her friend house at Maubawk and on the way back, she was walking in the rain. She stated that on 30.06.2017, she had gone to her friend house at Maubawk and on the way back, she was walking in the rain. The accused offered to give her a lift on his scooty. He took her to his sofa workshop in Dinthar Veng and had sexual intercourse with her against her will. A case was registered at the Vaivakawn PS under Section 4 of the POCSO Act and referred to the IUCAW Cell by the Officer-in-Charge who endorsed it to her for investigation. She examined the informant as well as the victim at the IUCAW Cell on her volition as it was the place of her choice for the examination. She conducted the examination in her civil clothes. She sent the victim for a medical examination to civil hospital, Aizawl and the report showed that there was an old rupture of the hymen. Intimation was given to the CWC Aizawl of the offence against the child within 24 hours of information reaching them. Victim was sent to Court for her statement to be recorded by a Magistrate. The statement she tendered in court corroborated the statement given to her when she examined her. She arrested the accused and interrogated him. He denied committing the offence. She forwarded the accused for a medical examination to determine his fitness for custody and also his potency for sexual intercourse as per Section 53A and 54 of the Cr.P.C. She visited the place of occurrence and examined one witness namely Joseph Lalduhawma who was the first person victim had informed about the assault. She seized victim’s original birth certificate from the possession of her father. From the investigation she found that a prima facie case under Section 4 of the POCSO Act was well established against the accused and she accordingly filed a charge-sheet against him. She proved Exhibit P-4 as the seizure memo. Exhibit. P-4-B as her signature. Exhibit M-1 was the seized birth certificate. Exhibit. P-5 was the chargesheet submitted by her. Exhibit-P-5-A was her signature. 5. The Defence Case:- I. During the cross-examination as seen from the suggestions made, the defence case of the accused was that the victim is a major, and that accused did not have sex with the victim and it was not the accused but some other person had sexually assaulted the victim. Exhibit-P-5-A was her signature. 5. The Defence Case:- I. During the cross-examination as seen from the suggestions made, the defence case of the accused was that the victim is a major, and that accused did not have sex with the victim and it was not the accused but some other person had sexually assaulted the victim. It was also a defence that the undergarments of the victim was not seized. It was also suggested to the I.O. that genuineness of the birth certificate was not verified from the issuing authority. II. During the examination of the accused under Section 313 Cr.P.C., the accused admitted the date of birth of the victim and also admitted that as the victim was walking in the rain, he offered lift to her, which she refused first but later accepted. He also admitted that he took the victim to his workshop in Dinthar inasmuch as he went there to get his jacket. Though the victim wanted to go to Chanmari, however, he wanted to drop her at her house in Tuikual. Though he admitted he switch on the light of the workshop but denied of locking the door. He denied having sex with the victim inside the workshop, however, he admitted that he took the victim to Chanmari and dropped her near Axis Bank and after waiting five minutes, when she did not return, he left and returned to Dinthar. He further explained that he had a helpful attitude and was trying to assist victim. He further explained that he is the Secretary of the Graveyard committee at Dinthar and they often come across girls in distress who need help. He further explained that he never taken advantage of women who are in need of help. III. The accused adduced two witnesses in support of his defence. IV. The DW-1 testified before the Court that he saw the sofa workshop of the accused between 6 to 7 PM and he used to drink with the accused in his sofa workshop and he along with his friend went to the sofa workshop enquired about stock of liquor and then he witnessed the victim sitting down in the sofa. When the accused informed that there was no liquor and informed that he was in hurry and could not spent time with his friends, the DW-1 along with his friend left the place. When the accused informed that there was no liquor and informed that he was in hurry and could not spent time with his friends, the DW-1 along with his friend left the place. He further opined that he do not believe that it is possible to carry out a sexual assault inside the sofa workshop as lot of people moves around. During cross-examination, he stated that he did not see the accused and the victim leaving the workshop but he heard the sound of his scooter. V. The DW-2 is the other friend who accompanied the DW-1. He also narrated the same story and deposed that he saw the victim in the sofa workshop. He further deposed that in the meantime, the accused wanted to change his wet clothes and offered to drop her, the victim. Thereafter, the victim accompanied the accused in the scooter. During cross examination, he admitted that he saw the victim in the sofa workshop when he arrived there. 6. The argument advanced by the learned counsel for the appellant:- I. That there are material contradictions in the testimony of the prosecutrix and therefore, her testimony is not trustworthy. Therefore, the conviction ought not to have been based on her sole testimony without there being any corroborative evidence. In support of such contention, she relied on the decision of the Hon’ble Apex Court in the case of Rai Sandeep Alias Deepu -Vs-State (NCT of Delhi)reported in (2012) 8 SCC 21 . II. The conviction ought not to have been based solely on a child witness inasmuch as the learned Court below has failed to evaluate the testimony of the child witness carefully and with greater circumspection and also ignored the settled proposition of law that the evidence of child witness should be supported by some corroboration and in the case in hand, there is no corroboration of the testimony of the child witness. In support of such contention, the learned counsel relies on the decision of the Hon’ble Apex Court in the case of Panchhi and Others -Vs- State of U.P., reported in (1998) 7 SCC 177 . III. The learned trial Court has ignored the delay in lodging the FIR which was lodged after four days, and also failed to appreciate that there was no proper explanation which is fatal to the prosecution case. III. The learned trial Court has ignored the delay in lodging the FIR which was lodged after four days, and also failed to appreciate that there was no proper explanation which is fatal to the prosecution case. In support of such contention, the learned counsel relies upon the decision of the Hon’ble Apex Court in the case of State of Himachal Pradesh -Vs- Sanjay Kumar Alias Sunny, reported in (2017) 2 SCC 51 . IV. The medical evidence shows that the victim was habituated to sex, therefore, the testimony of such prosecutrix in a rape case should not have been the sole basis of the conviction. 7. Per contra, the learned Public Prosecutor for the State of Mizoram, Mr. C. Zoramchhana, submits the following:- I. The prosecution has been able to establish the guilt of the accused beyond all reasonable doubt. II. It is well settled that there can be a conviction when the victim’s deposition is trustworthy and credible and in the case in hand, the testimony of the victim is of sterling quality and her evidence remained firm and unshaken. III. Accordingly, the learned trial Court has rightly convicted the accused. 8. Decision and determination of this Court:- I. From the evidence available on record as discussed hereinabove, the birth certificate of the victim was duly proved according to which the victim was a minor below 18 years and to be more precise she was aged 17 years 7 months on the date of occurrence. II. Section 29 of the POCSO Act, mandates that the Special Court shall presume that the accused has committed or abated or attempted to commit offences under Sections 3, 5, 7 and 9 when a person is prosecuted for committing or abating or attempting to commit any offence mentioned hereinabove. III. Such presumption of fact can be rebutted by an accused by an explanation which is reasonably possible inasmuch as presumption of law cannot be discharged by explanation alone and it is to be proved that the explanation is true. It is also a settled law that such presumption is rebuttable presumption and the prosecution is to lay the foundational fact for taking such presumption. IV. It is also a settled law that such presumption is rebuttable presumption and the prosecution is to lay the foundational fact for taking such presumption. IV. The learned counsel for the appellant has strenuously argued that the testimony of the victim is not trustworthy and is not of sterling quality inasmuch as her statement is full of contradiction and the evidence of the doctor clearly establishes that she had an old rupture hymen and she had sex earlier on many occasions. Therefore, the learned Special Judge ought not have convicted the accused/appellant on the basis of sole testimony of the victim. V. This Court do not find force in such argument inasmuch as the case of the prosecutrix as narrated in the FIR that on 30.6.2017 she went to Maubawkto visit the new house of her female friend and also narrated that while she was returning it was raining heavily and the accused offered her to drop at her residence in Tuikual South. In her 164 Statement she deposed that she went to Maubawk to have dinner at a friend’s place and in her deposition she testified that he went with the husband of her female friend to have her Adhaar Card. Thus, even if there is contradiction, the contradiction relates to the place from which she was returning. An additional fact was narrated in her 164 statement that the accused invited her to dry herself at his house and accordingly took her home. The other facts narrated regarding giving lift by the accused, taking her to his sofa workshop and dropping her at Chanmari not only remained unshaken, the same is admitted to be correct by the accused in his 313 statement. It is well settled that the FIR cannot be encyclopedia of all the facts. It is also well settled that to disbelieve a testimony of a witnesses for the reason of contradictions and improvement, such contradiction must be material contradiction and such witnesses must be confronted with such contradictions during the cross-examination. However, in the case in hand the victim was neither confronted with the said contradiction nor in the considered opinion of this Court, such contradictions are material contradictions to dislodge the allegation of commission of offence under section 3 of the Act. VI. However, in the case in hand the victim was neither confronted with the said contradiction nor in the considered opinion of this Court, such contradictions are material contradictions to dislodge the allegation of commission of offence under section 3 of the Act. VI. Coming to the trustworthiness of the testimony of the victim, in the considered opinion of this Court, from the evidence on record as discussed herein above, this court is having the unhesitant conclusion that the evidence of the victim remained unshaken that on the fateful day at around 06:00 PM to 07:00 PM she was forcefully sexually penetrated/raped by the accused inside the sofa workshop belonging to the accused. As discussed herein above, the allegation of rape and sexual penetration was not only testified by the victim during her evidence-in-chief the defence could not shake her testimony during cross-examination inasmuch as she has been consistent in this regard in her statement recorded under Section 164 of Cr.P.C. VII. Though the medical evidence do not suggest any forceful sexual penetration or any injury in the private part of the victim, such finding shall have no assistance to the defence case inasmuch as the victim was examined after four days of the incident and also that it is the case of the minor victim that she did not resist the accused in rapping her as the offence was committed under threat and the workshop was locked from inside. Therefore, there may not be any injury mark in her private part. Accordingly, this Court is of the view that the decision relied on by the appellant in the case of Rai Sandeep (supra), the allegation was of forcible sexual intercourse by two accused and that was a case of gang rape but there was no injury on the private part of the prosecutrix in spite of allegation of forceful gang rape. VIII. From the evidence of the prosecutrix this court is not having any doubt upon the testimonies of the prosecutrix/victim. Her testimony is reliable and trustworthy. No motive of false implication was also suggested by the defence. IX. The Hon’ble Apex court in the case of Ganesan Vs. VIII. From the evidence of the prosecutrix this court is not having any doubt upon the testimonies of the prosecutrix/victim. Her testimony is reliable and trustworthy. No motive of false implication was also suggested by the defence. IX. The Hon’ble Apex court in the case of Ganesan Vs. State represented by its Inspector of Police reported in (2020) 10 SCC 557, and in Santosh Prasad @ Santosh Kumar vs. The State Of Bihar reported in (2020) 3 SCC 443 in no unambiguous term held that law is well settled that there can be a conviction when the victim/prosecutrix’s deposition is trustworthy, immaculate and credible and her evidence is of pristine quality. X. In the case in hand, as held by the Hon’ble Apex court in the case of State of Maharashtra Vs. Chandraprakash Kewal Chand Jainreported in 1990 AIR 658, the victim is not an accomplish to the crime but is a victim of another person’s lust and therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplish. In the present case, the victim’s evidence in the considered opinion of this court is trustworthy and of sterling quality but also her testimony remained unshaken and at the same time, the prosecution through her evidence has been able to laid the strong foundational fact for prosecution under Section 29 and the Defence has failed to … and establish its explanation. XI. Regarding the argument of the learned counsel for the appellant that the conviction was based on testimony of the child witness and such testimony was not properly and carefully evaluated and there was no corroboration of such child witness and her reliance on the decision of Panchhi (supra), this Court is of the considered opinion that the decision rendered in Panchhi (supra), was a case of murder out of a conflict between two families wherein one of the witness was a child witness. In the case in hand, the child herself is the victim, therefore, there is a mark distinction between the evidence of a child who herself is a victim of sexual offence and a child witness to a commission of murder and therefore, no separate corroboration is required as the trial court and this court find the testimony of the victim to be trustworthy. XII. XII. This Court is also of the unhesitant view that in the given facts of the present case lodging of the FIR after four days shall not be fatal to the prosecution case and the same shall not give any benefit to the accused appellant for the reason that the delay in FIR was explained by the victim in her testimony before the Court inasmuch as the testimony of the victim remained firm regarding the rape committed upon her by the appellant and this Court cannot be unmindful of the fact that the FIR was lodged by the victim and she is a minor and was not stating with her parents. Therefore, the decision relied on by the learned counsel for the appellant in Sanjay Kumar (supra), is rather more applicable to the case of prosecution than to the defence. XIII. During the cross-examination of the victim, the defence did not make any suggestion to the victim that while the victim and the accused was in the place of occurrence i.e. the sofa workshop, the DW-1 visited the place. XIV. Coming to the statement of the accused recorded under Section 313 Cr.P.C. and the defence evidence laid by the accused, this court is of the view that though it is a well principle of law that recording of statement of the accused under Section 313 Cr.P.C. is not a mere formality and the defence evidence is also to be given equally value that too of the prosecution witness. However, the defence is to make known to the prosecution its defence case during the cross-examination by making suggestion, which is not done in the present case. XV. Though by leading two defence witnesses the defence wanted to establish that on the date and place of occurrence DW1 and DW2 were present and they also saw the victim inside the furniture shop belonging to the accused and that she was in a normal condition and that she has not informed anything to them, however, during the cross-examination of the victim no such suggestion was made and such defence has been brought for the first time by way of DW1 and DW2 without laying foundation of such defence. XVI. Regarding the defence witness, as discussed hereinabove, there was no suggestion made by the defence regarding the fact of the visit of DW-1 and DW-2 in the place of occurrence. XVI. Regarding the defence witness, as discussed hereinabove, there was no suggestion made by the defence regarding the fact of the visit of DW-1 and DW-2 in the place of occurrence. The rationale of giving suggestion is to set out, for appreciation of the Court the defence version inasmuch as in criminal trials, the stand of the accused is not known till the examination of the accused under Section 313 Cr.P.C. Such suggestion is given to challenge the prosecution version, however, in the case in hand, no such suggestion or whisper was there either during the cross-examination of the witnesses or in the statement of the accused recorded under Section 313 of Cr.P.C. XVII. Above all, even if the story of the defence brought through the evidence of DW-1 and DW-2 are believed, such evidence establishes the presence of the victim girl inside the sofa workshop of the accused. The evidence of DW-1 and DW-2 do not disclose that they were present during the entire period when the accused and victim first entered into the workshop and were with them till the accused and victim left. Therefore, it cannot be ruled out that they came to the place of occurrence after the offence was committed inasmuch as the minor victim’s testimonies that the rape committed upon her was under threat, remained unshaken. Therefore, in the considered opinion of this Court, the explanation given through the DW-1 and DW-2 cannot be basis of acquitting the accused more particularly in a case under the POCSO Act, 2012. XVIII. In view of the foregoing finding, this court is of the view that the learned trial court has not committed any error either in law or fact in convicting the appellant. Accordingly, the impugned judgment and sentence dated 26.08.2020 passed by the learned Special Judge, POCSO, Aizawl, Mizoramin SC No. 179/2017 in Criminal Trial No. 1441/2017 convicting the appellant under Sections 4 of the POCSO Act, 2012 and also the impugned order dated 08.09.2020 by which the appellant was sentenced to undergo 7 years rigorous imprisonment with a fine of Rs. 10,000/-and in default to pay the fine, another simple imprisonment of 6 months is upheld. XIX. Send back the LCR.